Cloudpushuk Ltd, Terms & Conditions
Additional Charges means Charges which may be made (in addition to the Annual Support Charge) for additional services supplied;
Annual Support Charge means the support charge for the Maintenance Services as set out on the Order Form;
Anti-Bribery Laws means all statutes, statutory instruments, bye-laws, orders, directives, treaties, decrees and laws which relate to anti-bribery and/or anti-corruption, including the Bribery Act;
Applicable data protection law means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
Bribery Act means the Bribery Act 2010;
Business Day means Monday to Friday (inclusive) in any week but excluding English bank holidays or public holidays;
Commencement Date means the commencement date of the applicable Services (excluding Fixed Network Services) as specified on the Order Form;
Company means Cloudpushuk Ltd Limited a company registered in England and Wales whose registered office is Suite 2069 6-8 Revenge Road, Lordswood, Kent, England, ME5 8DD
Connection Date means the date when the Carrier, having received the relevant information from the Company, is able to, and has agreed to, commence provision of the Network Services to the Customer;
CPI means the Consumer Price Index which is a measure of inflation published monthly by the Office for National Statistics and measures the change in the cost of a representative sample of retail goods and services In the United Kingdom, it replaced the CPI (Retail Prices Index) as it was held in 2013 not to meet international statistical standards,
Consultancy Services means the consultancy services more particularly detailed on the Order Form (as modified or substituted by the Company from time to time) to be provided hereunder by the Company to the Customer;
Contract means the agreement between the Customer and the Company for the provision of the Equipment and/or Services (or any of them) incorporating these Conditions, the Order Form and any other Service Specific Conditions and/or Promotional Terms incorporated into the Contract;
Contract Year means a period of twelve months commencing from either (i) the Effective Date; or (ii) any subsequent annual anniversary of the Effective Date;
Contractor means any person who, on or prior to the Effective Date of the Contract (and/or prior to the date of the transfer of such services to the Company), supplied services to the Customer which were the same as or similar to those provided or to be provided by the Company to the Customer under the Contract;
Customer means the person, firm or company specified on the Order Form and any other person appearing to act within that person’s, firm’s, or company’s authority and includes where relevant the Customer’s permitted assigns;
Data exporter means the controller who transfers the personal data;
Data importer means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Agreement and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; [If these Agreement are not governed by the law of a Member State, the words “and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC” are deleted.
Data Protection Legislation means the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner;
Delivery means the point at which the Equipment arrives at the Customer’s Site immediately prior to the unloading of such Equipment from the delivery vehicle and ‘Delivered’ shall be construed accordingly;
Effective Date shall mean the earlier of the date on which the Company signs the relevant Order Form or commences performance of the Contract;
Employee means any employee, former employee, consultant, former consultant, contractor, former contractor, agent or former agent of the Customer or any Contractor or Subcontractor;
Employment Regulations means any laws in any country in the world implementing the provisions of EC Directives No. 77/187 dated 14 February 1977, 2001/23 dated 12 March 2001 or equivalent or similar regulations that protect the rights of employees on a transfer of a business or undertaking or any laws providing for the automatic transfer of employees on transfer of the whole or part of an undertaking, business or service provision change, including in the United Kingdom the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended or replaced from time to time;
End User means any end user of the Services;
Equipment means the equipment and/or software related products to be supplied under the Contract as set out on the Order Form;
Hosted Data means the data which is hosted pursuant to the Hosting Services;
Hosting Services means the hosting services more particularly detailed on the Order Form (as modified or substituted from time to time) to be provided hereunder by the Company to the Customer;
IP means Internet Protocol;
Installation means the physical installation of Equipment at the Site;
Installation Services means services for the Installation of Equipment as more particularly described in the Order Form;
Intellectual Property Rights means all intellectual and industrial property rights including patents, know-how, registered trade-marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade-marks, rights to prevent passing off for unfair competition, copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;
Maintenance Services means the maintenance services in respect of the Supported Equipment more particularly detailed on the Order Form (as modified or substituted from time to time) to be provided hereunder by the Company to the Customer;
Minimum Term means the minimum contract period for the applicable Services which shall commence on the Commencement Date for all Services except Fixed Network Services which shall commence on the Connection Date and expire on the day at the end of the minimum contract period set out on the Order Form;
Normal Working Hours means 9.00am to 5.30pm on any Business Day;
OFCOM means the Office of Communications and/or any successor body;
Order Form means the order form to which either these Conditions are attached or which is expressed to be subject to these Conditions which sets out the details of the order, including (without limitation) the Customer’s details and the Equipment and/or Services to be supplied under the Contract;
Personal data, special categories of data process/processing, Controller, Processor, Data subject and Supervisory authority Have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; [If these Agreement are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Agreement govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of “personal data” is expanded to include those data” are added.]
Relevant Laws means any statute, regulation, bylaw, ordinance or subordinate legislation which is in force for the time being to which a party is subject; the common law as applicable to the parties (or any one of them); any binding court order, judgment or decree applicable to the parties (or any one of them); and any applicable industry code, policy, guidance, standard or accreditation terms (i) enforceable by law which is in force for the time being, and/or (ii) stipulated by any regulatory authority to which a party is subject, in each case, for the time being;
Service(s) means any of the services supplied by the Company and as set out on the Order Form;
Service Specific Conditions means any additional terms and conditions which are to apply to the Contract as specified on the Order Form;
Subcontractor means any subcontractor of a Contractor;
Subprocessor means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Agreement and the terms of the written subcontract;
Supported Equipment means the items of equipment (which may include the Equipment) to be subject to the Maintenance Services as set out on the Order Form;
Tariff means the Company’s tariff for calculating Charges for each of the Services
Technical and organisational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
2.1 The Order Form constitutes the Customer’s offer to the Company to purchase the relevant Equipment and/or Services. A Contract shall come into force and bind both parties once:
2.1.1 the Customer’s offer is accepted by an authorised representative of the Company signing the Order Form;
2.1.2 the credit status of the Customer being to the satisfaction of the Company (in the Company’s sole and absolute discretion);
2.2 All quotations, estimates and tenders are given and contracts are made by the Company subject to and only upon the terms of the Contract which cannot be varied unless agreed in writing by the Company. These Conditions supersede all other terms, conditions and warranties which are implied by law or which the Customer may purport to apply under any purchase order, acknowledgement of delivery or similar document or otherwise; and/or which have been established between the Company and the Customer by course of dealing.
2.3 Any undertaking by the Customer not to do any act or thing shall be deemed to include an undertaking that the Customer shall procure that any user of the Services and/or Equipment including (without limitation) any of the Customer’s employees, agents or contractor, shall not do such act or thing.
2.4 The Customer warrants and undertakes to the Company that it is entering into the Contract for the purposes of its trade, business and/or profession, and is not acting as a consumer.
3.1 The Customer shall be responsible for providing the Company with all information relevant to the supply of the Equipment and the provision of Services within sufficient time to enable the Company to duly perform the Contract.
3.2 The Customer shall ensure that the details set out on the Order Form are accurate and fully describe the Customer’s requirements and the Customer shall be liable for each liability, loss, injury, damage, demand, claim, cost, charge or expense which may be incurred or sustained by the Company by reason of or arising directly or indirectly out of or in respect of any inaccuracy in respect of such details or materials or other instructions in relation thereto, or where the compliance with, or use of any such details or materials or other instructions by the Company constitutes the infringement of the Intellectual Property Rights or other rights of a third party.
4.1 the Company provides written confirmation to the Customer that the Equipment referred to on the Order Form is available and can be supplied in the stated timescales; and
4.2 the Company providing confirmation by email to the Customer that the terms stated on the relevant Order Form as far as it is aware at the time of the review do not contain any errors or omissions.
4.3 Company acceptance under this Agreement is subject always to confirmation that the Services can be delivered by carrying out a site survey, if appropriate. Should it be found that, for any reason, that the service can not be provided, or that providing the Services is unacceptable, this Agreement or an individual order may be rescinded without liability.
4.4 Unless otherwise agreed, the Company will confirm and be responsible for procuring any planning consents, wayleaves or permissions necessary to provide the Services (including but not limited to consent for any necessary alterations to buildings or premises or rights of access). Both parties will also use all reasonable endeavours to facilitate this process.
4.5 In consideration of the Customer’s payment of the Price the Company will take reasonable steps to deliver the Equipment and, where expressly stated by the Company, supply the Installation Services, using reasonable skill and care, within an estimated period of time. Such period shall commence from the date of receipt by the Company of all instructions and information required for the execution of the Contract. The Company does not guarantee that Delivery or Installation will take place within such period, and time is not (and may not be made) of the essence of the Contract.
4.6 The Customer shall be responsible for providing the Company with any necessary instructions for delivery of the Equipment within a reasonable period prior to the estimated delivery date advised by the Company to the Customer.
4.7 If the Customer fails to take delivery of the Equipment or if because of instructions or lack of instructions from the Customer the delivery of any Equipment in accordance with the Contract is delayed for more than twenty-eight days after the Company has given notice in writing to the Customer that the Equipment is ready for delivery the Equipment shall be deemed to have been Delivered. The Customer shall pay to the Company the reasonable costs of storing, protecting and preserving such Equipment after the expiry of such period of twenty-eight days.
4.8 If the Contract provides for Delivery by instalments, any delay in the Delivery of any instalment shall not entitle the Customer to treat the Contract as at an end or to reject any other instalment.
4.9 If by reason of refusal or delay of delivery or installation the Equipment shall be deemed to have been Delivered and payment shall be made by the Customer to the Company of the balance of the Price within seven days of such deemed delivery date.
4.10 The Customer shall prepare the Site(s) (at its own cost) in accordance with the Company’s instructions so that any necessary Equipment can be installed.
4.11 The Customer shall be responsible for the cost to supply, install, maintain and operate all infrastructure required to accommodate the power and environmental specifications as specified by the Equipment manufacturer (as published and as amended from time to time) to comply with all local electrical code requirements including the Institution of Engineering and Technology’s IEE Wiring Regulations in force at the date of Delivery.
4.12 The Customer shall only connect and use equipment (whether supplied by the Company pursuant to the terms of this Contract or not) connected in accordance with any published instructions, safety and security procedures applicable to the use of that equipment.
4.13 The Customer shall ensure that steps have been taken to configure any equipment (whether supplied by the Company pursuant to the terms of this Contract or not) so as to prevent such equipment being used in the commission of criminal offences including the making of fraudulent, unauthorised or bad faith calls.
4.14 If the Company becomes aware that any unsupported equipment is connected, the Company may serve notice on the Customer requesting that the Customer removes such equipment. The Customer will on receipt of such notice, remove such unsupported equipment.
4.15 The risk of loss or damage to the Equipment shall vest with the Customer from the moment of Delivery or deemed Delivery irrespective of whether title to the Equipment has passed or payment or part payment made. From the moment of Delivery or deemed Delivery, the Customer shall be responsible for insuring the Equipment.
4.16 Notwithstanding Delivery and the passing of risk, the legal and beneficial interest in the Equipment supplied under the Contract shall not pass to the Customer until the Company has received in cleared funds payment in full of all sums due for the Equipment and Installation Services (where applicable) and to the extent the Equipment constitutes software in whole or in part, this condition shall not prejudice any proprietary rights of the Company or any of its licensors or any other entity with any rights in respect of such software.
4.17 Until such time as the legal and beneficial interest in the Equipment has passed to the Customer, the Customer shall hold such Equipment as the Company’s fiduciary agent and bailee, and keep such Equipment properly stored, protected and kept free from any loss, damage, and/or deterioration and insured against all risks for its full reinstatement value and identified as being the Company’s property until title passes.
4.18 Until such time as the legal and beneficial interest in the Equipment passes to the Customer, the Company shall be entitled at any time to require the Customer (at the Customer’s cost) to deliver up the Equipment to the Company at its nominated location and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Equipment is stored and remove and repossess such Equipment.
4.19 The Customer shall not, without the prior written consent of the Company, pledge or in any way charge by way of security for any indebtedness, or alter or modify, any Equipment which remains the property of the Company, but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any right or remedy of the Company) forthwith become due and payable.
4.20 At the Company’s option, for a period of twelve months from the date of Delivery, without cost to the Customer, the Company will (at its sole and absolute discretion) either repair or replace any defective Equipment or make good any defect which shall be proved to the satisfaction of the Company to be the result of faulty design, materials or manufacture or re-perform any Installation Services (only where the Company has supplied Installation Services under the Contract) provided that, the Company shall have no liability for any such defects unless the Customer notifies the Company, within three Business Days from Delivery or the completion of the Installation Services (where applicable) whichever is the later event, of any defect arising prior to and/or after Delivery or Installation (as the case may be) and within twenty four hours of any latent defect arising within such twelve month period.
4.21 If the Customer enters into an agreement for maintenance of the Equipment with a third party, the Company’s liability for defects in the Equipment shall cease, save for the Company’s liability for defects arising on or before Delivery of the Equipment.
4.22 Where the Company is to supply Maintenance Services in respect of the relevant Equipment under the Contract, condition 6 shall apply and in the event of any conflict between this condition and condition 6, the provisions in condition 6 shall prevail.
4.23 The liability of the Company shall apply only to defects that appear under proper use and under conditions of operation not more onerous than those declared to the Company by the Customer prior to entering into the Contract, and in particular shall not apply to defects which arise from neglect, misuse, or faulty maintenance of the Equipment by the Customer or any of its other contractors, or from alterations carried out without the prior written consent of the Company or from repairs carried out improperly by the Customer or its servants or agents or arising from normal wear and tear.
4.24 Any repaired or new parts provided by the Company under this condition will be delivered by the Company to the Customer free of charge. Any Equipment (or part) which has been returned to the Company and replaced by the Company shall become the property of the Company upon collection by or delivery to the Company.
4.25 The Company reserves the right to charge on a quantum meruit basis for the costs of repairs and/or call-outs if the Company considers that the damage has resulted from misuse or unauthorised repair or alteration of the Equipment by the Customer or any third party, or from normal wear and tear.
4.26 Neither acknowledgement of receipt, nor investigation, by the Company of any claim or consent given hereunder shall constitute or imply admission by the Company of any liability in respect of such claim.
4.27 Save where the Customer has purchased Maintenance Services in respect of the relevant Equipment, the rights and remedies provided to the Customer under this condition, in connection with any defect in the Equipment resulting from faulty design, materials or manufacture or Installation or defect in the Installation shall be the Customer’s exclusive remedies in respect of the same.
4.28 The Company shall be entitled to fix legends bearing the Company’s and/or its third-party supplier’s name and/or trademarks or other marks to any Equipment. The Customer shall ensure that no such marks are removed or defaced at any time.
5.1 Unless the Customer terminates the Contract as per 5.2 then, upon the expiry of the Minimum Term the Contract will renew automatically for a further period of twelve months (a “Rollover Period”).
5.2 The Customer may terminate the Contract by giving ninety days’ prior notice in writing to the Company, such notice to become effective no earlier than the expiry of the Minimum Term or (if the Contract has automatically renewed upon the relevant Rollover Period. If the Customer does not give notice to terminate the Contract during a Rollover Period, the Contract will automatically renew for a further Rollover Period.
5.3 the Company carrying out a survey and/or testing which reveals to the Company’s satisfaction that it is possible for the Company to supply the Network Services; that the Company determines that any details or information used by the Company to determine the Charges applicable or any other terms of the Contract, whether supplied by the Customer or otherwise, are accurate and not misleading. The Charges may change depending on the results of such survey (including, without limit, where there are excess construction charges associated with a Site); and
5.4 the provision by the Company of confirmation by email to the Customer that the terms stated on the Order Form of the applicable Contract for Network Services do not contain any errors or omissions.
5.5 The Company will use reasonable endeavours to provide the Network Services from the Connection Date subject to these Conditions. Any Network Services so provided shall be provided with reasonable skill and care. The Network Services may not be fault free and use of the Network Services may not be uninterrupted.
5.6 Subject to the continuing supply of the service by the relevant Carrier, in the event of a fault occurring in the Network Services the Company will use reasonable endeavours to rectify the fault as soon as practicable however the Company shall have no liability to the Customer for any fault occurring, or any interruption to the Network Services whether in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise, howsoever caused (including but not limited to atmospheric conditions; any congestion, fault, interruption or interference with the network; any fault, interruption or interference with the power supply to the network; any act or omission by the relevant carrier, or any known or unknown viruses which cause interruption or interference with the network).
5.7 The Company may for operational reasons; introduce Service Features, introduce process changes to improve the quality of the Network Services or upgrade the Network Services, provided always that such changes do not have a material adverse effect on the performance or provision of the Network Services.
5.8 The Customer acknowledges that the speed of the Network Services depends on a number of factors including, but not limited to, distance from the exchange, local availability and line capability. The Company shall have no liability to the Customer whether in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise if the Customer’s line(s) does/do not produce a top speed of the maximum speed advertised.
5.9 The Customer shall be responsible for the safe custody and safe use by it of the Network Services and without prejudice to the generality of the foregoing the Customer agrees and undertakes: (a) to use the Network Services in accordance with such additional conditions as may be notified to it from time to time; (b) not to cause any attachments, other than those that meet the appropriate essential requirements of regulation 4 of the Radio Equipment and Telecommunications Terminal Equipment Regulations 2000 (as from time to time amended) and any other requirements under the General Conditions and all other Relevant Laws, to be connected to the Network Services and the Company shall not be under any obligation to connect or keep connected any Customer apparatus if it does not so conform or if in the reasonable opinion of the Company it is liable to cause death, personal injury or damage or to impair the quality of the Network Service; (c) not to contravene the General Conditions or any other relevant regulations or licences granted thereunder and otherwise not to contravene, and not by any act or omission, cause the Company to contravene, any Relevant Laws or General Conditions; (d) not to use (and procure that no End User shall use) the Network Service as a means of communication for a purpose other than that for which the Network Service is provided and as may be set out in any relevant literature supplied by the Company from time to time; (e) not to use (and procure that no End User shall use) the Network Service to make, provide, communicate, publish, deliver, knowingly receive, upload, download, use or re- use any material or information which is intended to be a hoax call to emergency services, Nuisance Call or is of a defamatory, offensive, abusive, indecent, obscene or menacing character, or which does or is intended to cause annoyance, nuisance inconvenience or worry to any person or which in the Company’s opinion brings the Company’s name (or any of its third party suppliers’ name) into disrepute or which in any way causes damage to or disruption to the Network Services; (f) not to use the Network Service in a manner which constitutes a violation or infringement of the rights (including, without limitation, any Intellectual Property Rights) of any other person; (g) to maintain its telecommunications apparatus always during the period of the Contract in good working order and in conformity with any relevant regulatory standards or approvals and Relevant Laws for the item as from time to time applicable; (h) to provide the Company with all such information as it reasonably requests relating to the Customer’s telecommunications apparatus; (i) to implement adequate control and security over the use of the Network Services provided to the Customer including but not limited to the prevention of viruses, worms, logic bombs, Trojan horses and any other type of disruptive, destructive or nuisance programs and/or any calls generated by rogue diallers or hackers; (j) not to use the Network Services in a way that breaches any Relevant Laws, the Code or any guidelines, regulations or licence applicable to the Customer or that is in any way unlawful or fraudulent; (k) not to send or procure the sending of any unsolicited advertising or promotional material; and (l) not to use the Network Services in a manner that is in any way unlawful, fraudulent or in bad faith or which has any unlawful, fraudulent or bad faith purpose or effect.
5.10 Any equipment installed or provided by or on behalf of the Company for the purposes of providing the Network Services shall at all times remain the property of the Company and shall be returned to the Company forthwith upon request. The Customer shall be liable to the Company for all losses, costs and expenses incurred by the Company for the recovery, replacement or repair of such equipment (save to the extent that the same is caused by the negligence of the Company).
5.11 Unless stated otherwise on the Order Form, if the Customer takes a line rental from the Company, the Customer is also committed to using the Company for calls over that line. Should the Customer (during the applicable Minimum Term) use an alternative carrier for calls once the Contract for the provision of the telephone line has commenced, or prevent the Company from carrying calls in any monthly period so that the Company considers that the call charges are significantly reduced in comparison to the Customer’s previous average invoicing profile, the Customer agrees that the Company may charge the Customer the difference between the average monthly spend on calls prior to such commencement or prevention and the subsequent monthly spend on calls (if any).
5.12 The Network Services are provided solely for the Customer’s use and the Customer may not resell or attempt to resell the Network Services (or any part of them) to any third party.
5.13 The Customer warrants, represents and undertakes that any information the Customer makes available on its website, including the Customer’s information and that of a third party (“Third Party Content”) is and will remain wholly accurate and will not include any information or material, any part of which, or the accessing of which or use of which, would be a criminal offence or is otherwise unlawful.
5.14 The Customer also warrants, represents and undertakes that it will comply with all consumer and other legislation, instructions or guidelines issued by regulatory authorities and relevant licences which relate to the provision of the information on the Customer’s website including those notified by the Company to the Customer.
5.15 Both parties agree to fully co-operate with the Police and any other relevant authorities (including but not limited to the Inland Revenue, Trading Standards, the Information Commissioner and/or OFCOM and their successors from time to time) in connection with any misuse or suspected misuse of the Fixed Network Services, and the Customer consents to the Company co-operating with any such authority and with any other telecommunications operators in connection with any misuse or suspected misuse or suspected fraudulent activity related to or connected with the Fixed Network Services and agrees, without prejudice to the generality of the foregoing, that the Company will be entitled to divulge any information which the Company holds which may be relevant to any investigation, including the name, address and account information relating to the Customer to such third parties.
5.16 Whilst the Company will use its reasonable endeavours to provide any VOIP Fixed Network Services set out on an Order Form signed by the Company, the Company shall have no liability for the standard of quality or performance of the VOIP Fixed Network Services and the Company draws the following features of the VOIP Fixed Network Services to the Customer’s attention: (a) the VOIP service may not offer all the features, quality or resilience the Customer may expect from a conventional phone line; (b) the VOIP service may sometimes be limited, unavailable or disrupted due to events beyond the Company’s control e.g. power disruptions, failures or the quality of any connection; (c) wherever possible, alternative arrangements should be made by the Customer and a traditional PSTN telephone line maintained at each Site; (d) the quality of a call made via VOIP is more akin to that experienced when making a call from a mobile network service to another mobile network service and this means that it is typically less than the quality experienced on a traditional land line; (e) if the Customer uses the VOIP service to make Emergency Calls, the location information received by the emergency services will be limited to the installation address of the Site, which may not be the location from which the call originated, and as such the Customer may be required to provide information about the Customer’s location to the emergency services to allow them to respond; (f) Emergency Calls made using the VOIP service may fail if there is a power failure or connection failure; (g) the ability for the Customer to make Emergency Calls cannot be guaranteed; (h) a VOIP originated Emergency Call will not receive the same network priority at all points on the network as that which an Emergency Call made on a mobile network or on a circuit- switched fixed line will receive; and (i) the Customer’s equipment used to access the VOIP Fixed Network Services requires mains power to make Emergency Calls.
5.17 The Customer shall not use the bandwidth allocated to the VOIP service for any other purpose other than making and receiving VOIP calls. Should this prohibition not be complied with it is likely that the quality and availability of the VOIP services shall be materially reduced.
5.18 The Customer acknowledges and agrees that the following items may be required at the Customer’s Site before the VOIP Fixed Network Services can be commissioned; (a) IP phones or soft phones; and/or (b) IP Access Circuit and any corresponding data hardware including but not limited to routers and port switches.
5.19 The Customer shall provide to the Company (and update the Company in the event of any change in such details), the following records: - a) telephone number that may be used to call the Customer; (b) the Customer’s Site address including post code; and (c) where the Customer has nomadic applications that use more than one network termination point or equivalent, the address where the number is normally used.
6.1 The Company provides confirmation by email to the Customer that the terms stated on the Order Form of the applicable Contract for Maintenance Services do not contain any errors or omissions.
6.2 In consideration of the payment of the Annual Support Charge each year by the Customer, the Company will supply to the Customer the Maintenance Services in accordance with the Contract.
6.3 Subject to earlier termination in accordance with its terms, the Contract for Maintenance Services shall run for the Minimum Term. Upon the expiry of the Minimum Term, the Contract shall renew automatically for a further period of twelve months (a “Rollover Period”).
6.4 The Customer may terminate the Contract by giving ninety days’ notice in writing to the Company, such notice to become effective no earlier than the expiry of the Minimum Term or (if the Contract has automatically renewed) upon the anniversary of such date thereafter. If the Customer does not give notice to terminate the Contract during the Rollover Period, the Contract will automatically renew for a further Rollover Period.
6.5 The Maintenance Services shall apply only in respect of the Supported Equipment expressly stated on the Order Form to be subject to the Maintenance Services
6.6 The Company shall have no obligation to provide any Maintenance Services unless all necessary testing has been completed by or on behalf of the Company to ensure that it is possible for the Company to provide such Maintenance Services. If the Company becomes aware of any such limitations that may impact the provision of Maintenance Services or if the Maintenance Services cannot be provided, the Company will contact the Customer within five Business Days of such testing and cancel the affected Maintenance Services without charge.
6.7 Unless it is otherwise stated on the Order Form that a different level of Service (in terms of response times and hours of attendance) will apply, the Company will use its reasonable endeavours to, within two Business Days of receipt of notification from the Customer of a request for the provision of Maintenance Services and the Supported Equipment being made available, commence during Normal Working Hours the Maintenance Services. Any time period stated in respect of the Company’s obligations under a Contract is not guaranteed nor deemed to be of the essence of the Contract.
6.8 Where the Company replaces defective Supported Equipment or part thereof, it shall be entitled to supply serviceable reconditioned items in substitution thereof. These Conditions shall continue to apply to the Supported Equipment embodying such substituted items.
6.9 Subject to spare part availability, the Company shall provide all necessary spare parts (in the reasonable opinion of the Company) required to keep the Supported Equipment in satisfactory operation. All replaced parts shall become the property of the Customer.
6.10 The Customer shall take adequate copies of data, operating and application software such that the system and files may be restored in the event of corruption or other similar loss howsoever occasioned.
6.11 The Customer agrees that it is the responsibility of the Customer to restore data, operating and application software in the event of loss due to system failure or disk exchange. Restoration of system and data from the Customer’s last good backup copies may be undertaken by the Company at the request of the Customer and will be chargeable.
6.12 Maintenance Services shall not include the following (the “Excepted Services”): (a) the repair of damage to the Supported Equipment resulting from accident, neglect or causes other than ordinary use (including, but not limited to, failure to observe any instructions supplied by the Company or the original Supported Equipment manufacturer or supplier) regarding the operation of the Supported Equipment; (b) labour or materials required to repair Supported Equipment as a result of theft, vandalism, fire, lightning, water damage, fluctuations in electrical power supply, unsatisfactory environmental conditions, telephone line conditions, the connection or installation of unapproved accessories, attachments, software or other devices or as a result of a breach by the Customer; (c) the alteration, modification or maintenance of the Supported Equipment by any person other than the Company without the Company’s prior written consent; (d) the transportation or relocation of the Supported Equipment save where the same has been performed by the Company at the request of the Customer; (e) the maintenance or repair of any extension wiring (after the initial twelve-month warranty period has passed), any Supported Equipment not at the Site, or of anything other than the Supported Equipment; (f) any defect or error in any software (including as a consequence of modifications and customisation) used upon or in association with the Supported Equipment; (g) the supply of replacement aerials, aerial systems; (h) the reprogramming of the Supported Equipment to provide improved or modified service or facilities; (i) Supported Equipment faults caused by telephone area code changes or changes in Carriers; (j) maintenance or replacement of ancillary items including but not limited to answer phones, analogue or digital phones or devices, call loggers, payphones, computers, servers, uninterruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, and any cables or consumables unless otherwise agreed in writing; (k) maintenance arising from loss of equipment as the Maintenance Services are limited to repair or replacement of faulty equipment on a like-for-like exchange basis; (l) a dedicated helpdesk. (m) any defect in design, manufacture, installation or performance of the Supported Equipment (unless otherwise stated in this Contract); (n) the restoration, uploading or reconstitution of any data relating to the Supported Equipment; (o) the provision of any Maintenance Services for any items that either does not appear on the Order Form or which appears on the Order Form with an inaccurate or misleading escription; (p) where the Supported Equipment includes software, the Customer’s failure to install any enhancements which have been made available to the Customer or any fault in the Supported Equipment for which a patch, fix or update has not been made available by the applicable Supported Equipment supplier; and/or (q) moves and changes.
6.12 The Company may, in its sole and absolute discretion, upon request by the Customer use its reasonable endeavours to provide all or any of the Excepted Services but shall be entitled to charge for the same by levying Additional Charges.
6.14 The Company shall be entitled to levy (and receive from the Customer) Additional Charges if: (a) Maintenance Services are provided in circumstances where any person who is reasonably skilled and competent in the field of maintaining telecommunications equipment would have judged the Customer’s request to have been unnecessary; and/or (b) the Customer reports an apparent fault of the Supported Equipment to the Company and upon investigation by the Company the Supported Equipment and/or its Installation is found not to be defective. Such Additional Charges may include (without limitation) a charge for the investigation and/or for any call-out and for any Supported Equipment changed in a postal exchange (in respect of which the Company reserves the right to make a charge up to the replacement value of the Supported Equipment in question); (c) where the Company determines that a fault that has been reported to the Company is a fault of the Carrier. Such Additional Charges may include (without limitation) a charge for the call-out in accordance with the Company’s then current Tariff); and/or (d) the Customer requests the restoration of data.
6.15 Additional Charges shall be levied by the Company as follows: (a) following completion of the additional services supplied; or (b) following completion of the investigation and/or call out.
6.16 Such Additional Charges (calculated in accordance with the Tariff prevailing at the time) shall be payable by the Customer within thirty (30) days of the date of an invoice.
6.17 The Company shall have the right to discontinue the Maintenance Services in respect of any Supported Equipment (without liability to the Customer) in the event that the Company’s supplier and/or the manufacturer of the Supported Equipment has ceased to supply or manufacture such Supported Equipment provided that the Company will notify the Customer as soon as reasonably practical after it is aware of any cessation in supply or manufacture of the Supported Equipment and shall either (upon agreement with the Customer) (i) terminate the Contract or (ii) replace or upgrade the affected Supported Equipment at the Customer’s expense.
6.18 The Company shall have the right to terminate forthwith the supply of the Maintenance Services (without liability to the Customer) if any necessary approvals required by the Company to maintain any of the Supported Equipment are not granted or revoked by any government or regulatory agencies or any third party.
6.19 The Customer shall ensure that the Supported Equipment is used in a normal and proper manner and take all steps, measures and meet all requirements (including the environmental conditions) contained in the customer operating instructions and manufacturer’s written recommendations supplied with the Supported Equipment (“User Instructions”);
6.20 Not employ or permit a third party to make any alterations to the programming or physical structure of the Supported Equipment;
6.21 If the Supported Equipment is not (immediately prior to the Commencement Date) either already maintained by the Company or within the scope of an express warranty given by the supplier thereof, then the Company may at its discretion inspect the Supported Equipment and undertake such repair work as may be necessary to put the Supported Equipment in good working order. The Customer shall pay for such inspection and repair at the Company’s then current charge rates applying at that time, and such payment shall be in addition to the Annual Support Charge.
6.22 The Customer will not move any of the Supported Equipment, nor remove the Supported Equipment from its location as at the Commencement Date without the prior written consent of the Company, such consent not to be unreasonably withheld. Where the Company consents to such relocation, the Company will provide a relocation and installation service, the cost of which shall be paid by the Customer in accordance with the Company’s then current Tariff, and such payment shall be in addition to the Annual Support Charge.
7.1 Any Contract including the provision of Consultancy Services based on an order which is accepted by the Company is, until the Effective Date, conditional on the Company providing confirmation by email to the Customer that the terms stated on the Order Form of the applicable Contract for Consultancy Services do not contain any errors or omissions. Subject to this condition and in consideration of (and subject to) the payment of the Consultancy Charges by the Customer, the Company shall supply to the Customer the Consultancy Services in accordance with the Contract.
7.2 Subject to earlier termination in accordance with its terms, the Contract for Consultancy Services shall run for the Minimum Term. Upon the expiry of the Minimum Term, or any anniversary thereafter, the Contract in relation to the Consultancy Services will renew automatically for further periods of twelve months.
7.3 The Customer may terminate the Contract in relation to the Consultancy Services by giving ninety days’ notice in writing to the Company, such notice to become effective no earlier than the expiry of the Minimum Term or upon each anniversary of such date thereafter (as applicable).
7.4 The Company undertakes to use reasonable endeavours to provide the Consultancy Services to the Customer subject to these Conditions.
7.5 The Customer undertakes to co-operate with the Company in all matters relating to the Consultancy Services and undertakes to comply with the reasonable requirements or instructions of the Company and promptly give the Company all such information as it may reasonably require in connection with the provision of Consultancy Services to the Customer.
8.1 The Company provides confirmation by email to the Customer that the terms stated on the Order Form of the applicable Contract for Hosting Services do not contain any errors or omissions.
8.1 Subject to earlier termination in accordance with its terms, the Contract for Hosting Services shall run for the Minimum Term. Upon the expiry of the Minimum Term, or any anniversary thereafter, the Contract in relation to the Hosting Services will renew automatically for a for a further period of twelve months (a “Rollover Period”).
8.2 The Customer may terminate the Contract in relation to the Hosting Services by giving ninety days’ notice in writing to the Company, such notice to become effective no earlier than the expiry of the Minimum Term or upon each anniversary of such date thereafter (as applicable). If the Customer does not elect to give notice to terminate the Contract during the Rollover Period, the Contract will continue to automatically renew for subsequent Rollover Periods on each anniversary of the date of the expiry of the Minimum Term.
8.3 In consideration of (and subject to) the payment of the Annual Hosting Charge by the Customer, the Company shall use reasonable endeavours to provide the Hosting Services from the Commencement Date subject to these Conditions. The Hosting Services may not be fault free and may not be uninterrupted.
8.4 The Company will use reasonable endeavours to rectify any fault in the Hosting Services as soon as practicable however the Company shall have no liability to the Customer for any fault occurring, or any interruption to the Hosting Services whether in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise, howsoever caused including but not limited to atmospheric conditions; any congestion, fault, interruption or interference with the network; any fault, interruption or interference with the power supply to the network, any act or omission by a Carrier or other service provider, or any known or unknown viruses which cause interruption or interference.
8.11 The Customer shall:
8.11.1 not use the Hosting Services to make, provide, communicate, deliver, knowingly receive, upload, download, publish, use or re-use any material or information which is intended to be a hoax or is of a defamatory, offensive, abusive, indecent, obscene or menacing character, or which does or is intended to cause annoyance, nuisance inconvenience or worry to any person or which in the Company’s opinion brings the Company’s name into disrepute or which in any way causes damage to or disruption to the Hosting Services;
8.11.2 not use the Hosting Services in a manner which constitutes a violation or infringement of the rights of any other person;
8.11.3 implement adequate control and security over the use of the Hosting Services provided to the Customer including but not limited to the prevention of viruses, worms, Trojan horses and/ or any access to the Hosting Services by hackers;
8.11.4 not use the Hosting Services in a way that breaches any Relevant Laws, any guidelines, regulations or instructions of any regulator or any licence applicable to the Customer or that is in any way unlawful or fraudulent;
8.11.5 not conduct any unauthorised monitoring of, or access to, or use of data, networks or systems, including any attempt to probe, scan or test the vulnerability of a network and/or system or to breach security or authentication measures without proper authorisation;
8.11.6 not interfere with, disrupt or disable any service to any user, host or network via means including but not limited to overloading, flooding, mail-bombing, denial of service attacks or crashing;
8.11.7 not use manual or electronic means to avoid any use limitations placed on a system, such as access or storage restrictions; and
8.11.8 not attempt to circumvent or alter any method of measuring or billing for the Hosting Services.
8.12 The Hosting Services are provided solely for the Customer’s use and the Customer may not resell or attempt to resell the Hosting Services (or any part of them) to any third party. 7.6 The Company shall not be liable to the Customer for any interruption or other failure in the Hosting Services to the extent that such interruption or failure arises directly or indirectly from:
8.12.1 the IT Equipment, the Customer’s network or system or any part thereof;
8.12.2 any act or omission of the Customer, its agents, representatives or users;
8.12.3 the Customer’s breach of the Contract;
8.12.4 the Customer’s failure or delay in complying with the Company’s reasonable instructions and/or failure or delay in providing any information requested by the Company;
8.12.5 anything beyond the reasonable control of the Company as defined more particularly in condition 12.4;
8.12.6 planned outages, server relocation, or maintenance advised to the Customer by the Company;
8.12.7 server maintenance or application maintenance carried out by the Customer or by the Company on the Customer’s instructions; and/or
8.12.8 suspension of the Hosting Services in accordance with the Contract.
8.13 The Company may at any time change the location of the Facility in which Hosting Services are performed upon notice to the Customer.
8.14 In the event of termination or expiry of a Contract for Hosting Services, the Company shall (at the Company’s option) return or delete all data which is held by the Company in connection with the Hosting Services. Save in the event of expiry, or termination by the Company without cause, the Customer shall be liable for all costs which the Company incurs in returning or deleting the Hosted Data.
8.15 Unless the Customer purchases back-up services from the Company, the Company shall not be obliged to perform a back-up or otherwise replicate any of the content which the Customer provides to the Company as part of the Hosting Services.
8.16 Notwithstanding any other provision of this Contract, the Customer’s sole and exclusive remedy for any breach of this condition by the Company and/or for any negligence, default or breach of duty by the Company which leads to loss or corruption of Hosted Data shall be for the Company to use its reasonable endeavours to restore the Hosted Data to the most recent unimpaired and uncorrupted generation of Hosted Data (where available) created prior to such breach, negligence or default.
8.17 Notwithstanding anything to the contrary in the Contract, the Company shall be entitled to make changes to the Hosting Services (or any part thereof) which do not have a material adverse effect on the Hosting Services and shall where the Company deems it practical to do so give the Customer written notification of the same.
8.18 The Customer warrants, represents and undertakes that it is the owner of, or that it is authorised by the owner of, (and has the right to use) any trade mark or name that the
Customer wishes to use as or in its registered domain name (or any of them) (“Domain Names”) and/or as part of the Customer’s uniform resource locator (“URL”).
8.19 If the Company undertakes Domain Names and/or URL registration on behalf of the Customer, the Customer will reimburse the Company for any registration fees paid by the Company to the relevant internet registration authorities. The Company does not guarantee that any Domain Names or URL requested by the Customer will be available. The Customer acknowledges and agrees that the registration of the requested domain name and its ongoing use by the Customer shall be subject to the relevant naming authority’s terms and conditions of use.
9.1 The Price is as stated on the Order Form. Any invoices issued by the Company in respect of the Price shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
9.2 Unless otherwise specified the Price assumes that the Delivery of the Equipment and (where applicable) Installation Services will be completed in one visit to the Site and accordingly the Company may at its discretion at any time increase the Price to take account of any additional costs to the Company (including but not limited to storage and delivery costs) by reason of Delivery and/or the Installation Services taking more than one visit.
9.3 The Charges will be as detailed in the Tariff or unless stated otherwise on the Order Form.
9.4 The Company shall have the right to alter the Charges from time to time by publishing changes to the Tariff (a) at least thirty days prior to the change taking effect in the event of changes which may be of material detriment to the Customer; and (b) as soon as is reasonably practical in the circumstances prior to the change taking effect, for all other changes,(a) shall not constitute either acceptance of or an admission by the Company that any proposed change is of material detriment to the Customer, nor shall the service of notice by the Customer under this condition constitute or be deemed to constitute evidence that the relevant change is of material detriment to the Customer.
9.5 Usage charges payable shall be calculated by reference to data recorded or logged by the Company and not by reference to any data recorded or logged by the Customer. Any invoices issued by the Company in respect of the Charges for Fixed Network Services shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
9.6 Line rental is payable from the Connection Date.
9.7 The Company shall increase the Charges for the Network Services in the April immediately following the Effective Date by the increase (if any) in the Rate of CPI.
9.8 Any invoices issued by the Company in respect of the Charges for Maintenance Services shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
9.9 The Company shall have the right to alter the Annual Support Charge from time to time by giving the Customer not less than thirty (30) days’ notice.
9.10 The Company may increase the Annual Support Charge immediately following the Commencement Date by the increase (if any) in the Rate of CPI.
9.11 Save where, and to the extent that, any Promotional Terms apply, the Charges will be as stated on the Order Form and are exclusive of VAT or any other tax or duty payable.
9.12 The Customer shall pay to the Company the Charges and any invoices issued by the Company in respect of the Charges shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
9.13 The Company shall have the right to alter the Charges from time to time by giving the Customer not less than thirty (30) days’ notice.
9.14 The Company may increase the Charges in April of each year following the Commencement Date by the increase (if any) in the Rate of CPI.
9.15 All sums referred to under these Conditions, the Order Form, any Promotional Terms and any Service Specific Conditions are (unless otherwise stated) exclusive of Value Added Tax (VAT) and any taxes of a similar nature which may from time to time be introduced, which will be payable by the party paying the relevant sum at the rates in force at the date of the relevant invoice.
9.16 Any invoices issued by the Company in respect of the Charges shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
9.17 The Company shall have the right to alter the Charges from time to time by giving the Customer not less than fourteen days’ notice.
9.18 The Company may increase the Charges in April of each year following the Commencement Date by the increase (if any) in the Rate of CPI.
10.1 Unless otherwise stated on the Order Form, a deposit equal to at least one half of the Price is payable by the Customer at the time of the placing of the relevant order.
10.2 Unless otherwise stated on the Order Form, the Customer shall be invoiced either monthly in arrears or quarterly in advance in the case of line rental by the Company, and shall pay any Charges within thirty (30) days of the date of the invoice (unless otherwise expressly agreed with the Company and set out on the Order Form).
10.3 Unless otherwise stated on the Order Form, the Customer will pay the Charges to the Company by Direct Debit (to such account as the Company may designate for that purpose) in advance of the relevant period as set out on the Order Form.
10.4 If payment of any sum payable to the Company is not made on or before the due date, the Company shall be entitled to charge interest thereafter on such sum at either the rate of four per cent per annum above the current base rate of The Royal Bank of Scotland plc from time to time or, if higher, such rate as the Company would be entitled to claim under the Late Payment of Commercial Debts (Interest) Act 1998 (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date until the date of payment whether before or after judgment.
10.5 If the Company is unable, for whatever reason, to recover any sum due under the Customer’s account within thirty (30) days following the due date for payment, the Company reserves the right to forthwith suspend all or any of the Services.
10.6 If the Customer’s account remains unpaid (in any part) the Company may require a security deposit of three times the average monthly invoice or payment in full for the next twelve months before the Company will reinstate the Service.
10.7 Without prejudice to the Company’s other remedies, if the Customer’s account remains outstanding for any reason after the original due date for payment, then the Customer will be charged an administration fee for each piece of correspondence in connection with the recovery of the overdue amount. The Company may also charge the Customer a fee where it suspends a Network Service for non- payment; and the Company reserves the right to refer the outstanding account to a debt collection agency. If the Company instructs a debt collection agency to collect payment (including interest and late payment charges) on its behalf the Customer must pay the Company’s costs payable to the agency, who will add the sum to the Customer’s outstanding debt.
10.8 If the Customer cancels an active direct debit instruction following the Effective Date, an additional administration fee may be notified to the Customer by the Company and will be added to the monthly invoice until the direct debit instruction is reinstated. The Company also reserves the right to charge the Customer a direct debit cancellation fee at the Company’s then applicable rate.
10.9 The Company may, without notice, withhold any payments due to the Customer under the Contract if:
10.9.1 the Company has reason to believe the Customer is in breach of the Contract; and/or
10.9.2 the Customer is (or the Company reasonably believes that the Customer is) conducting its business or using a Service illegally or unlawfully (including without limitation in breach of the Code or any OFCOM requirements) or for an illegal or unlawful purpose; and/or
10.9.3 the Contract is terminated for any other reason; and/or
10.9.4 the Company has reason to believe the Customer is insolvent or is likely to become insolvent
10.10 If any sum owed by the Customer to the Company under the Contract or any other contract with the Company is not paid by the due date, the Company may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with the Company.
10.11 Payment of all sums due to the Company shall be made without any set-off whatsoever.
10.12 If the Customer intends to dispute any charge on an invoice, the Customer must do so in writing to the Company within thirty (30) days of the date of the invoice and provide the Company with all relevant information in support of the disputed charge. Where the disputed charge(s) amount to:
10.12.1 less than five per cent of the total charges listed on the invoice, the Customer will pay the full amount of the invoice; or
10.12.2 more than five per cent of the total charges listed on the invoice, the Customer must pay the remaining amount of the invoice that is not in dispute.
11.1 the Customer shall permit or procure permission for the Company, its agents, employees, representatives, sub-contractors and any other person(s) authorised by the Company to have reasonable access to the Site, Equipment, Supported Equipment and any other relevant telephone system and other equipment and shall provide such reasonable assistance as the Company requests. If the Company is refused access or prevented from accessing the Site, for whatever reason, it will be relieved from all of its performance obligations under this Contract and shall have no liability to the Customer and the Customer shall hold the Company harmless in this regard. Further, the Customer shall be charged an abortive visit charge.
11.2 The Company will normally carry out work by appointment and during Normal Working Hours but may request the Customer to (and the Customer shall) provide access at other times. If the Customer cancels, reschedules or misses any pre- arranged appointment, it shall be liable to the Company for any costs and expenses which the Company incurs as a result of such cancellation, rescheduling and/or missed appointment.
11.3 At the Customer’s request, the Company may agree (at its sole discretion) to work outside Normal Working Hours and the Customer shall pay the Company’s reasonable charges for complying with such a request.
11.4 The Customer warrants, represents and undertakes that there are adequate health and safety provisions in place at the Site, there is a suitable and safe working environment, and that the Customer holds third party public liability insurance with a level of cover of at least the minimum required by Law.
11.5 The Customer shall procure all consents, licences and permissions necessary from landlords or other third parties for the carrying out of preparation work, installation of Equipment and for the provision, use and operation of the Equipment, the Supported Equipment and/or Services at the Sites (save to the extent the Company has agreed in writing to do it). The Customer shall provide copies of such consents, licences and permissions to the Company upon request.
11.6 In the event that the Customer is not able to procure the necessary consent to provide the Services within ninety days from the Effective Date the Company will be able to terminate the Contract forthwith by giving the Customer written notice without any liability. If the Customer has not managed to procure the necessary consents and the Company has commenced work the Customer shall, on request by the Company, refund to the Company the cost of all such work (including, without limitation, staff costs and equipment costs) at its then current rates.
11.7 The Customer shall provide the Company with the site and building plans (to include full details of all internal cabling runs) of the Sites and provide the Company with full details of all other services in the vicinity of the proposed works.
11.8 The Customer is responsible for making the Site good after any work undertaken by the Company at a Site, including without limitation replacing and re-siting items and for re- decorating.
11.9 If the Customer is moving a Site, the Company must be informed as soon as is reasonably practicable so that suitable arrangements can be made to transfer the Customer’s Services and Equipment. Unless otherwise requested, the Company, in addition to moving the Service and Equipment, will also endeavour (but cannot guarantee that it will be able, for example where the Customer moves to a different exchange) to retain the Customer’s relevant existing telephone number(s). If the Company can transfer the Customer’s existing number to the new Site the relevant existing Contract will continue under the same terms and conditions. If the Company cannot transfer the Customer’s existing relevant number to the new Site, installation of a new line will be required at the new Site, or if the Customer requires any additional new lines, this will attract new line connection charges and a new Contract.
11.10 If the new installation or moving Site involves the visit of an engineer to facilitate the new installation, the Customer will be responsible for the costs incurred by the Company for the appointment of the engineer together with an administration fee in respect of any additional works required to be undertaken by the Company to complete the transfer of the Services and Equipment.
11.11 If the Customer moves Sites and leaves the Equipment and/or the Supported Equipment for the new owner/tenant, the Customer is required to inform them that the relevant Service will be discontinued if the Company is not contacted by the new owner/tenant within seventy-two hours for the purpose of entering into a new contract with the Company for such services and subject in any event to the agreement of such a contract.
11.12 If the Customer receives services from an alternative supplier at a new Site the Customer remains responsible for any contractual agreement the Customer has with such alternative supplier and for any liabilities the Customer may incur for terminating such agreement.
11.13 The Customer must identify asbestos contaminated areas at the Site prior to implementation and commencement of the works. In the event that the Company discovers asbestos contaminated areas at the Site then it will cease work until the asbestos is removed or the area is made safe for the works to resume. The Company shall have no liability for any delay which is as a result of asbestos contamination and the Customer shall hold the Company harmless in this regard. The Customer shall be responsible for the removal of all asbestos at the Site including the co-ordination of and all costs incurred in connection with the engagement by the Customer of a company which specialises in the installation of cables in asbestos contaminated areas.
12.1 Unless otherwise stated in this Contract the Company makes no warranty in respect of the supply of Equipment and/or Services and all other terms, conditions and warranties which may otherwise be implied into this Contract by law or course of dealings between the parties are hereby excluded to the fullest extent legally possible.
12.2 In no circumstances shall the Company’s liability to the Customer arising under or in connection with this Contract (whether in contract, tort (including without limitation negligence) misrepresentation, breach of statutory duty or otherwise) in any Contract Year exceed 110% of the Price and/or Charges paid in the twelve months prior to the date on which a claim arose in respect of the Equipment, Fixed Network Services, Maintenance Services, Consultancy Services, Hosting Services or Installation Services to which the claim relates.
12.3 Under no circumstances shall the Company be liable in any event under or in connection with the Contract and whether in contract, tort (including negligence) misrepresentation, breach of statutory duty or otherwise for any (a) loss of revenue; (b) loss of business; (c) loss of contracts; (d) loss of, damage to, or corruption of data; (e) loss of anticipated savings; (f) loss of profits; or (g) indirect, consequential or special losses; whether or not the Company knew or ought to have known that such losses or damages might be incurred.
12.4 Neither party shall be liable to the other party for any breach of contract, tort (including but not limited to negligence) misrepresentation, breach of statutory duty or otherwise caused by any reason outside the reasonable control or responsibility of that party including, without limitation, in respect of Fixed Network Services supplied by the Company, the failure of any Carrier to provide network capacity and/or connectivity (or any element thereof) to the Company on which it was reliant for the purposes of the Contract, any act of God, terrorist attacks, inclement weather, accidental damage, vandalism, failure or shortage or power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, any act or omission of Government, highways authorities, or other competent authorities.
12.5 Nothing in these Conditions excludes or restricts either party’s liability for death or personal injury resulting from that party’s negligence or its employees’ negligence (while acting in the course of their employment); (a) any fraud, fraudulent misrepresentation or fraudulent misstatement; (b) any indemnity given under the Contract; and/or (c) anything for which the parties cannot at law limit or exclude their liability.
12.6 The Customer agrees that any cause of action that it may have against the Company (including, it’s (or their) affiliates, directors, officers, agents, consultants and employees) must commence within two (2) years after the cause of action arose, otherwise, the Customer’s cause of action is permanently barred.
13.1 Without prejudice to any other rights of the Company, the Customer shall indemnify, keep indemnified and hold harmless the Company against all costs (including without limitation legal costs and the cost of enforcement (on a full indemnity basis)) liabilities, claims, damages, direct, indirect or consequential losses (including without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss whether such losses are direct, indirect or consequential losses), expenses and/or judgments whatsoever, which it may suffer or incur, and arising from any: a) breach by the Customer of any warranties, undertakings and/or representations given under the Contract and/or any failure to comply with any obligations, responsibilities and/or liabilities of the Customer set out in the Contract; and/or b) injury and/or damage suffered or incurred by or to any of the Company’s (or any of the Company’s contractor’s) employees and/or equipment whilst on the Site; and/or c) infringement by the Customer (including, its affiliates, directors, officers, agents, consultants and employees) of any third party’s Intellectual Property Rights.
14.1 Without prejudice to any other right of the Company to suspend or terminate any or all the Services under these Conditions, the Company may at its sole discretion elect to suspend forthwith provision of any Services until further notice without liability to the Customer having given the Customer reasonable notice either orally (confirming such notification in writing) or in writing if: (a) the Customer is in breach of a material term of these Conditions and/or the Contract and/or any other contract between the parties from time to time including but not limited to the Customer’s failure to pay the Price and/or the Charges (or any of them) to the Company on the due date or to comply with the Broadband Acceptable Use Policy; (b) an Emergency occurs and/or the Company is obliged to comply with an order, instruction or request of the Government, an emergency services organisation or other competent administrative or regulatory authority (including OFCOM); (c) the Company has reasonable grounds to believe that any of the Services are being used fraudulently, unlawfully or by an unauthorised third party; (d) any licence under which the Customer has the right to run its telecommunications system and/or connect to the Services or use any of the Services is revoked, amended or otherwise ceases to be valid; (e) the Company or any member of its Group is entitled to suspend and/or terminate provision of any other telecommunications service under the terms of any other agreement with the Customer; or (f) any maintenance or repair is necessary (for the purposes of new provision, updating facilities, general maintenance or otherwise) or required to the relevant network or related systems or equipment (for the avoidance of doubt, in the event of emergency maintenance or repair, the Company shall not be required to give any notice).
14.2 The Customer shall not have access to any data stored through the Hosting Services during a suspension. The Customer shall have the opportunity to create a snapshot backup of the data stored through the Hosting Services, and the Customer shall pay the Company the applicable charges for undertaking such a backup, in accordance with the Company’s then current charges.
14.3 The Company may suspend and/or terminate until further notice, without liability to the Customer, if the Company is entitled to suspend and/or terminate the provision of the Network Services under the terms of this Contract.
14.4 The Company may terminate (in whole or in part) the Contract forthwith if its right, or the right of the relevant Carrier, to provide any of the Services is withdrawn by any supplier to it or OFCOM pursuant to the General Conditions or otherwise.
14.5 The Customer shall not be entitled (once an order has been accepted by the Company) to change or cancel an order.
14.6 The Customer shall indemnify the Company in full against all loss (including, but not limited to, all losses incurred by the Company as a result of the Customer terminating the Contract before the end of the Minimum Term or where the Contract has continued beyond the Minimum Term before the end of the relevant notice period, which will include a minimum payment to the Company of the amount of the outstanding line rental charges, , Annual Support Charges, Additional Charges or otherwise that would have been paid by the Customer had the Contract continued for the Minimum Term and/or the relevant notice period (as the case may be)), costs, damages, charges (including, but not limited to, any liability for Network Services transferred from third parties) and administration charges in respect of the termination of the supply of any or all of the Equipment and (if applicable) the Services which are the subject of the Contract) and expenses incurred by the Company as a result of such changes or cancellation.
14.7 Without prejudice to any other rights of the Company under these Conditions or otherwise, the Company shall be entitled at any time and for any reason whatsoever to terminate this Contract on the giving of not less than thirty (30) days’ written notice to the Customer, without further liability to the Customer. For the avoidance of doubt, if the Company terminates a Contract under this condition
14.8, the Customer’s liability to pay the Charges for Services shall end on the date of termination of the relevant Contract and the Customer shall not be liable to pay for the Charges applicable for the remainder of any Minimum Term in respect of that Contract.
14.9 A Contract may be terminated forthwith by either party by notice in writing if the other party materially breaches its obligations under this Contract (including without limitation non-payment of charges due) and in the case of breaches which are capable of remedy such party fails to remedy such breach within fourteen days of written notice by the other party, such notice shall contain details of what the breach is and requesting that the breach is remedied. The Company shall also be permitted to terminate this Contract forthwith on notice to the Customer in the event that the Customer is in material breach of any other contract to which these conditions apply (as in force from time to time) and which breach, if capable of remedy, has not been remedied within fourteen days of written notice by the Company, such notice shall contain details of what the breach is and requesting that the breach is remedied.
14.10 Notwithstanding anything to the contrary expressed or implied in these Conditions, either party (without prejudice to its own rights) may terminate all Contracts forthwith in the event that a liquidator (other than for the purpose of solvent amalgamation or reconstruction) trustee in bankruptcy, administrator or receiver is appointed in respect of the whole or part of the assets and/or undertaking of the other party or the other party enters into an arrangement or composition with its creditors, or other circumstances arise which entitle a court or creditor to appoint a receiver or administrator or to make a winding up order (save as in respect of a solvent reconstruction of such relevant party’s group of companies).
14.11 The Company shall be entitled to terminate the Contract forthwith in circumstances where it also has a right to suspend the provision of the Services.
14.12 The termination or expiry of the Contract shall be without prejudice to any rights or liabilities which have accrued prior to such expiry or termination. Any provision of this Contract which expressly or by implication is intended to survive, shall survive the termination or expiry of the Contract.
14.13 Any implied right to terminate for convenience that the Customer may have under applicable law is hereby expressly excluded.
14.14 For the avoidance of doubt, in the event of termination of the Contract for any reason, the Customer shall not be entitled to a refund of any pre-paid sums (including, without limit, subscription, rental and/or maintenance charges) whether such sums are attributable to the period before, including or after the date the Contract terminates.
15.1 The Company and the Customer will keep in confidence any information of the other; whether written or oral, of a confidential nature obtained under or in connection with the Contract except to the extent any disclosure is required by law. The Customer and the Company will not, without the consent of the other, disclose such information to any person other than:
15.2 If the Customer receives a request under the Freedom of Information Act 2000 which encompasses any information provided to the Customer by the Company in connection with the Contract the Customer will notify the Company immediately of the request and give the Company at least ten Business Days to make representations before releasing the requested information (save to extent otherwise required by law). 17.4 The Customer acknowledges and agrees that the Company may use Personal Data and/or confidential information obtained from the Customer during or following the completion of the Order Form or as a result of the Customer’s use of the Equipment or Services and/or arising from or out of the provision of the Equipment or Services, for the following purposes:
15.3 The Company will not pass Personal Data obtained from the Customer to any third parties for marketing purposes by those third parties but may send the Customer information about the Company’s (or any member of its Group’s) own products and services which it considers may be of interest to the Customer, unless the Customer specifically requests on the Order Form that the Company does not do so.
15.4 The Customer acknowledges that whilst data belonging to Customer and to its customers, whose data is stored on the Company’s servers or system as a result of using any recording or storage function of the Services, the Customer shall always remain the Data Controller for such data and the Company shall always be a Data Processor only.
16.1 The Company may change the Conditions and/or Service Specific Conditions at any time and will publish any change at least thirty days before the change is to take effect for changes that may be of material detriment to the Customer;
16.2 If the Customer wishes to object to any proposed change which is of material detriment to the Customer, the Customer must notify the Company in writing within thirty days of publication of the proposed change, otherwise the Customer will be deemed to have accepted the proposed change. For the avoidance of doubt, the service by the Company of any notice shall not constitute either acceptance of or an admission by the Company that any proposed change is of material detriment to the Customer, nor shall the service of notice by the Customer under this condition constitute or be deemed to constitute evidence that the relevant change is of material detriment to the Customer.
16.3 The Company may, if requested by the Customer, provide additional services to be included within the Services under such additional terms and conditions as may be notified by the Company from time to time.
16.4 No variation of the terms of the Contract however notified (save with regard to the manuscript details on the Order Form including, where initialled by both parties, manuscript amendments to the type face, as such details may be inputted by authorised staff of the Company) will be accepted by the Company unless authorised by notice in writing by a Director of the Company.
17.1 The Customer shall ensure that user names and passwords used by it and/or its personnel and/or users in connection with the Services are kept secure and confidential always and are only used by authorised users. The Customer shall inform the Company immediately if the Customer knows or suspects that a user name or password has been disclosed to an unauthorised user, or is being used in an unauthorised way, or if there is any illegal, fraudulent or unauthorised use of the Services or Equipment. The Customer will not change or attempt to change a user name without the Company’s written consent.
17.2 The Company reserves the right (at the Company’s sole discretion):
17.2.1 to suspend access to the Services by one or more user names if at any time the Company thinks that there has been or is likely to be a breach of security (including a breach of the Customer’s obligations under this condition; and
17.2.2 to ask the Customer to (in which case, the Customer shall) change any or all the passwords the Customer’s uses in connection with the Services.
17.3 The Customer will inform the Company immediately of any subsequent changes to the information the Customer supplies to the Company in connection with the Contract.
17.4 The Customer accepts and acknowledges that the Services are not guaranteed to be secure and the Company does not guarantee the prevention or detection of any unauthorised attempts to access the Services.
17.5 The Customer acknowledges that the Company has no control of a Customer’s PABX/switch configuration, voice mail security or other feature services enabled.
17.6 The Company shall not be responsible for call charges or other charges resulting from fraudulent and/or unauthorised use of the Equipment and/or Services or any use of the Equipment and/or Services by any unauthorised third parties (who are not employees of the Company). The Customer shall be responsible for all use of the Services in association with the Customer’s accounts whether or not authorised by the Customer. The Customer agrees to immediately notify the Company of any unauthorised use of the Customer’s account of which the Customer becomes aware and the Customer agrees to pay all additional charges related to fraudulent and/or unauthorised usage. The Customer is therefore urged to verify with their equipment provider that all necessary steps to combat fraudulent and/or unauthorised use have been taken.
17.7 Any assistance given by the Company in relation to fraudulent and/or authorised use by the Customer or third parties (or the prevention of such use) will be on a reasonable endeavours basis only and no liability can be accepted by the Company for any loss sustained by the Customer via fraudulent and/or unauthorised means that are beyond the Company’s reasonable control (save for any fraud and/or authorised use by an employee of the Company acting in that capacity).
17.8 The Customer shall, at all times, be responsible for preventing unauthorised use of the Equipment and/or Services; (a) maintaining the security of all systems, Services, network elements and Equipment within its (or its employees’, agents’ or contractors’) control; and (b) maintaining (and ensuring that each of its authorised users maintains) at all times, the integrity and secrecy of all passwords, log-in details and access codes used for the purposes of accessing or using the Services or any systems, network elements or Equipment.
17.9 Without limitation, the Customer shall put in place and comply at all times with the following security measures: -
17.9.1 the Customer shall ensure that the password used in connection with the Equipment and/or Services is strong and is made up of not less than eight characters which shall include at least one number, one letter and one alphanumerical symbol;
17.9.2 the Customer shall regularly and at least every 6 (six) weeks change the password set out at condition 19.9.1 above;
17.9.3 the Customer shall restrict access to passwords to key individuals;
17.9.4 the Customer shall ensure that it has up to date anti-virus protections and that it has firewalls in place which are maintained by the Customer in accordance with best industry practices; and
17.9.5 the Customer shall, without delay, follow any security directions given to it by the Company from time to time.
18.1 The Customer shall, and shall procure that its officers, employees, agents and any other persons who perform the services for and on behalf of it in connection with a Contract shall;
18.1.1 comply with all applicable Anti-Bribery Laws;
18.1.2 not offer, promise, give, request, agree to receive, receive or accept a bribe or financial or other advantage or commit any corrupt act;
18.1.3 comply with the Company’s Ethics and Anti-Bribery Policy
18.1.4 have and shall maintain in place throughout the term of all Contracts its own policies and procedures, including adequate procedures under the Bribery Act, to ensure compliance with the Anti-Bribery Laws and the Relevant Policies, and will enforce them where appropriate;
18.1.5 not do or omit to do any act or thing which constitutes or may constitute an offence under Anti-Bribery Laws;
18.1.6 not do or omit to do any act or thing which causes or may cause the Company and/or its Group to be in breach of and/or commit an offence under any Anti-Bribery Laws;
18.1.7 not do or omit to do any act or thing which causes or may cause the Company or any member of the Company’s Group to be guilty of an offence under section 7 of the Bribery Act (or would or may do so if the Company was unable to prove that it had in place adequate procedures designed to prevent persons associated with it from undertaking such conduct); and
18.2 provide the Company and any member of the Company’s Group (at the Customer’s cost) with such reasonable assistance as it may require from time to time to enable it to perform any activity required by any relevant government or agency in any relevant jurisdiction for compliance with any Anti-Bribery Laws.
19.1 Each Party shall comply with its obligations under the Data Protection Legislation at all times in connection with the Agreement and in relation to any information they receive as a result of this Agreement.
19.2 Where a Party (the “Data Transferor”) transfers personal data to the other Party (the “Data Receiver”) pursuant to this Agreement, the Data Transferor warrants that the Data Transferor has obtained the necessary consents to transfer the personal data to the Data Receiver and for the Data Receiver to process the data. Furthermore, the Data Receiver agrees that, to the extent the Data Receiver receives any personal data from the Data Transferor, the Data Receiver shall:
19.2.1 process such personal data only to the extent necessary to carry out its obligations under this Agreement;
keep the personal data confidential and not disclose it to any Third Parties;
19.2.2 act only on the Data Transferor’s instructions in relation to the use, storage or processing of any personal data and put in place appropriate technical and organisational measures to comply with the Data Protection Legislation and to protect any such information against unauthorised or unlawful processing and against accidental loss, destruction, or damage; and
19.2.3 promptly notify the Data Transferor of the loss, compromise or any unauthorised access to, or breach of the security of, any personal data.
19.2.4 A Party that transfers personal data to the other Party pursuant to this Agreement warrants that it has obtained the necessary consents to transfer the personal data to the other Party and for the other Party to process the data. Furthermore, the Parties agree that the Customer and The Company shall be data controllers (under the Data Protection Legislation) for the purposes of such transfer and the processing of such personal data.
19.2.5 In so far as The Company processes any personal data on behalf of the Customer or collects any personal data from Public Wi-Fi End Users, The Company shall not transfer personal data outside the European Economic Area without complying with the Eighth Data Protection Principle set out in the Data Protection Act 1998 by providing an adequate level of protection to any personal data that is transferred and shall treat such data in a way that is consistent with the Data Protection Legislation.
19.2.6 The Parties acknowledge that the Data Protection Legislation as set out in Regulation (EU) 2016/679 of the European Parliament (including guidance and further implementing legislation to be provided after the Effective Date by relevant bodies such as the Article 29 Working Party and the ICO) (the “GDPR”) is being amended and the following clauses may be subject to change as the guidance is developed.
19.3 The data subject can enforce against the data exporter as third-party beneficiary.
19.4 The data subject can enforce against the data importer in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
19.5 The data subject can enforce against the subprocessor in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Agreement.
19.6 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
19.7 The data exporter agrees and warrants:
19.7.1 that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
19.7.2 that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and this agreement;
19.7.3 that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in this agreement;
19.7.4 that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
19.7.5 that it will ensure compliance with the security measures;
19.7.6 that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If this agreement is not governed by the law of a Member State, the words “within the meaning of Directive 95/46/EC” are deleted.]
19.7.7 to forward any notification received from the data importer or any subprocessor pursuant to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
19.7.8 to make available to the data subjects upon request a copy of the agreement and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the agreement, unless the agreement contains commercial information, in which case it may remove such commercial information;
19.7.9 that, in the event of subprocessing, the processing activity is carried out by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the agreement; and
19.8 The data importer agrees and warrants:
19.8.1 to process the personal data only on behalf of the data exporter and in compliance with its instructions and the agreement; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
19.8.2 that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the agreement, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
19.8.3 that it has implemented the technical and organisational security measures specified in this agreement before processing the personal data transferred;
19.8.4 that it will promptly notify the data exporter about any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation, any accidental or unauthorised access, and any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
19.8.5 to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
19.8.6 at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the agreement which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
19.8.7 to make available to the data subject upon request a copy of the agreement, or any existing contract for subprocessing, unless the agreement or contract contain commercial information, in which case it may remove such commercial information which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
19.8.8 that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
19.8.9 that the processing services by the subprocessor will be carried out in accordance with this agreement;
19.8.10 to send promptly a copy of any subprocessor agreement it concludes under the Agreement to the data exporter.
19.9 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in this agreement by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
19.10 If a data subject is not able to bring a claim for compensation in accordance with this agreement against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in this agreement, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
19.11 The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
19.12 If a data subject is not able to bring a claim against the data exporter or the data importer arising out of a breach by the subprocessor of any of their obligations or because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the agreement as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the agreement.
19.13 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the agreement, the data importer will accept the decision of the data subject:
19.13.1 to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
19.13.2 to refer the dispute to the courts in the Member State in which the data exporter is established.
19.14 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
19.15 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
19.16 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
19.17 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in the agreement.
19.18 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Agreement without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Agreement, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Agreement. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
19.19 The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in this agreement for cases where the data subject is not able to bring the claim for compensation against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Agreement.
19.20 The provisions relating to data protection aspects for subprocessing of the contract referred to in this agreement shall be governed by the law of the Member State in which the data exporter is established.
19.21 The data exporter shall keep a list of subprocessing agreements concluded under the Agreement and notified by the data importer which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
19.22 The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
19.23 The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in this agreement
20.1 Any Intellectual Property Rights supplied by the Company to the Customer, or specifically produced by the Company for the Customer, in connection with this Contract, shall be the exclusive property of the Company and to the extent that any such rights vest in the Customer shall be deemed to be and shall be assigned to the Company by the Customer. The Customer shall not disclose to any third party or use any such Intellectual Property Rights except to the extent that it is or becomes public knowledge through no fault of the Customer, or as required for the performance of the Customer’s obligations under this Contract. Any Intellectual Property Rights belonging to, licensed to or supplied by the Company to the Customer shall be used by the Customer as expressly permitted under the terms of this Contract and in accordance with the instructions of the Company.
20.2 Any licence provided by the Company to the Customer in relation to the Intellectual Property Rights shall be personal to the Customer, non-exclusive, revocable and limited to the United Kingdom and in the absence of earlier revocation shall terminate upon termination of this Contract.
20.3 By using the Services (in particular, but without limitation, the Hosting Services) the Customer shall provide the Company with information and data, title to which shall remain vested in the Customer (or its licensors). The Customer warrants, represents and undertakes that it has all necessary rights and licences to use and transmit over the internet to the Customer all information and data which will be subject to the Hosting Services and hereby grants the Company a non-exclusive licence to use such information and data for the purposes of performing the Services.
21.1 No forbearance or indulgence shown or granted by the Company to the Customer whether in respect of these Conditions and/or any Service Specific Conditions or otherwise shall in any way affect or prejudice the rights of the Company against the Customer or be regarded as a waiver of any of these Conditions and/or any Service Specific Conditions.
21.2 The Contract (and any non-contractual matters arising out of or in connection with it) shall be governed by and construed in all respects in accordance with English law and the Customer hereby submits for all purposes of and in connection with the Contract to the exclusive jurisdiction of the English Courts (including in relation to non-contractual disputes).
21.3 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else and no third party shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
21.4 Any notice, invoice or other document which may be given by either party under the Contract shall be in writing (except as provided otherwise) sent for the attention of the relevant person, and to the address or fax number, given on the Order Form (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting or if earlier upon receipt and, if deemed receipt under this condition is not within Normal Working Hours, at 9.00 am on the first Business Day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted. E-mail shall not be a valid method of serving notices under this Contract.
21.5 Any director or representative of the Customer who signs on behalf of the Customer will be deemed an authorised signatory and thereby the Company shall be entitled to rely on such signatory as binding the Customer to the obligations in this Contract in all respects.
21.6 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
21.7 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract without the consent of the Customer. However, the Customer shall, if the Company requires, execute such deeds and/or documents as may be necessary or required by the Company to give effect to any such dealing in such rights and/or obligations.
21.8 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
21.9 The Customer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of six months after the termination or expiry of the Contract, actively solicit or entice away from the Company, or actively employ or attempt to employ (save where the relevant person has responded to a general advertisement by the Customer for the relevant job vacancy), any person who is, or has been, engaged as an employee or sub-contractor of the Company in the provision of the Services to the Customer. Any consent given by the Company shall be subject to the Customer paying to the Company a sum equivalent to twenty per cent of the then current annual remuneration of the Company’s employee or sub-contractor or, if higher, twenty per cent of the annual remuneration to be paid by the Customer to that employee or sub-contractor.
21.10 The Company and the Customer agree that the Employment Regulations will not apply to transfer the employment or engagement of any Employee to the Company in connection with the Contract or the termination or expiry of all or part of any contract between the Customer and a Contractor or any other provision of the Services and/or Equipment.
21.11 The Customer agrees to indemnify and keep indemnified the Company against all liabilities, losses, actions, proceedings, damages, costs (including legal and employment costs), claims, demands and expenses brought or made against or suffered or incurred by the Company or any of its suppliers arising out of or connected with:
21.11.1 the transfer or alleged transfer of the employment or engagement of any Employee to the Company or any of its suppliers pursuant to the Employment Regulations or otherwise; and
21.11.2 the employment or engagement or termination of employment or engagement by the Customer or a Contractor and/ or any Subcontractor of any Employee.
21.12 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
21.13 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted or modified, that provision will apply with whatever minimum modification is necessary to make it valid, enforceable and legal whilst still giving effect to the commercial intention of the parties.
21.14 Save where the context otherwise requires, in these Conditions a reference to a “person” shall include a company, body corporate, unincorporated association, state, governmental or statutory body or authority, and/or a partnership, as well as a natural person (as appropriate).
20.15 Except with the prior written consent of the other party, neither party shall:
21.15.1 make any public statement about the Equipment and/or Services or otherwise publicise the Contract or any information relating to it; or
21.15.2 use any trademarks or identifying logos owned or licensed to any member of the other party in any manner.
21.16 Nothing in the Contract is to be construed as establishing or implying any partnership or joint venture between the parties, or as appointing any party as the agent or employee of any other party. No party shall hold out any other party as its partner or joint venturer. Except, and to the extent, that the Contract expressly states otherwise, no party may incur any expenses or negotiate on behalf of any other party or commit any other party in any way to any person without that other party’s prior written consent.
21.17 Each party shall do and execute, or arrange and procure for the doing and executing of, any act and/or document reasonably requested of it by any other party to implement and give full effect to the terms of the Contract.
21.18 The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter. Neither party has entered into the Contract in reliance upon and nor shall they have any remedy in respect of, any representation or statement (whether made by the other party or any other person) which is not expressly set out in the Contract.
21.19 The Contract may be entered into in any number of counterparts and by the parties on separate counterparts, all of which taken together shall constitute one and the same instrument.