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Terms And Conditions

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1. Definitions:

Average Monthly Billing Profit:
The profit received by the Supplier on the average monthly Charges payable by the Customer for non-fixed services across the most recent 3 months in which the Customer has made full use of the Services.

Business Day:
A day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges:
The charges payable by the Customer for the supply of the Services in accordance with clause 7 (Charges and payment).

Commencement Date:
Has the meaning given in clause 2.2.

Commitment Period:
Has the meaning given in clause 2.3.

Conditions:
These terms and conditions as amended from time to time in accordance with clause 14.5.

Contract:
The contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer:
The person or firm who purchases Services from the Supplier.

Customer Default:
Has the meaning set out in clause 5.3.

Data Controller:
Has the meaning set out in Article 4 of the EU General Data Protection Regulation.

Data Subject:
An identified or identifiable natural person who is the subject of Personal Data.

Deliverables:
The deliverables set out in the Order, including any Software.

Estimated Agreed Usage:
Means the estimated monthly call traffic, as set out in the Order and which the Supplier has calculated after discussions with the Customer.

Intellectual Property Rights:
Patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

NGN:
A Non Geographic Number, which the Supplier licenses or loans to the Customer, or ports on the Customer’s behalf from one network to another network of the Supplier’s choice.

Number Loan:
Means any telephone number licensed to the Supplier that the Supplier has been using and which terminates on one of the Supplier’s own landline numbers, which the Supplier temporarily agrees to terminate on one of the Customer’s chosen landline numbers in accordance with Clause 6.6.

Order:
The Customer’s order for Services, which shall include the description or specification of the Services, provided in writing by the Supplier to the Customer.

Out Payment:
The payment given from NGN services where there is a revenue share that has been agreed as a rebate to the Customer.

Personal Data:
Has the meaning set out in Article 4 of the EU General Data Protection Regulation and relates to any information relating to an identified or identifiable natural person (Data Subject); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

Processing and Process:
Have the meaning set out in Article 4 of the EU General Data Protection Regulation.

Renewal Period:
Has the meaning given in clause 2.6.

Service Credits:
An amount equal to the amount of the Charges or rebate for an estimated equivalent number of inbound and outbound minutes during the period of any interruption or fault.

Services:
The services, including the Deliverables, supplied by the Supplier to the Customer, as set out in the Order.

Small Business Customer:
A Customer with fewer than 10 Workers.

Software:
Means software that the Supplier provides for the Customer under licence which enables the Customer to use the Services.

Supplier:
UK IT Networks Limited registered in England and Wales with company number 08026657.

Supplier Materials:
Has the meaning set out in clause 5.1(j), and shall include all materials and equipment used in the provision of the Services, save for any equipment explicitly detailed in the Order as being equipment belonging to the Customer.

Tariff:
The tariff of charges included in the Order.

Unacceptable Use:
Any activity which includes but is not necessarily limited to terrorist, criminal, illegal, malicious, fraudulent, threatening, harassing, or defamatory behaviour or attempting to violate or compromise security, permitting unauthorised access relating to any service that the Supplier may provide utilising the internet, landline or airtime networks..

Usage Threshold:
The agreed maximum bandwidth, capacity, usage, traffic minutes, volume and/or any commitment in respect of the Customer’s maximum usage or maximum period of use, as agreed between the Supplier and the Customer and set out within the Order.

VGN:
A Virtual Geographic Number, which the Supplier licenses or loans to the Customer, or ports on the Customer’s behalf from one network to another network of the Supplier’s choice.

Worker:
Any person who meets the criteria for a “worker” as set out in section 230 of the Employment Rights Act 1996.

2. Basis of Contract

2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2. The Order shall only be deemed to be accepted when the Supplier either:
a) Issues written acceptance of the Order; or
b) Provides written confirmation that the Services have been made live; at which point and on which date the Contract shall come into existence (Commencement Date).  All start dates for the Services are estimates only and should not be relied upon by the Customer.

2.3. The Contract shall run from the Commencement Date for a minimum period as defined in the Order (Commitment Period).

2.4. If the Customer is a Small Business Customer, the Contract may be renewed by giving the Supplier not less than 90 calendar days’ written notice of the Customer’s intention to renew, on or before the expiry of the Commitment Period. The renewal shall only be deemed to be accepted when the Supplier issues written acceptance of the renewal.

2.5. If a Small Business Customer does not serve notice to renew under clause 2.4 above, then at the end of the Commitment Period the Contract will continue until terminated by either party providing the other with not less than 90 calendar days’ written notice.

2.6. If the Customer is not a Small Business Customer, the Contract shall be renewed automatically at the end of the Commitment Period, unless the Customer gives the Supplier not less than 90 calendar days’ written notice of the Customer’s intention to terminate the Contract, no more than 90 calendar days and no less than 30 calendar days before the last day of the Commitment Period.

2.7. If the Contract renews under clause 2.4 or clause 2.6, the Contract shall continue to run for a further minimum period of 36 months, beginning on the first day after the Commitment Period (Renewal Period).  Clause 2.4 to clause 2.6 inclusive shall be repeated at the end of each Renewal Period.

2.8. Any samples, descriptive matter or advertising issued by the Supplier, and any descriptions contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.9. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.10. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue

3. Supply of Services

3.1. The Supplier shall supply the Services to the Customer in accordance with the Order in all material respects.

3.2. The Supplier reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.3. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

3.4. Any start dates specified within the Order are estimated start dates only. The Supplier cannot guarantee the date on which the Services will start and cannot be held liable for any loss or damage arising from any change to the estimated start date.

4. Service Level and Faults

4.1. The Supplier does not guarantee that the Services will be continuously available to the Customer or free from interruption or faults.

4.2. The Customer should report any interruptions or faults to the Supplier’s customer services team on 0344 324 85 85 or email: [email protected], during normal business hours. To report any interruptions or faults outside of normal business hours, the Customer should call 0844 324 85 87.

4.3. The Supplier will log the time of the Customer’s report. The Supplier shall endeavour to investigate and respond to the Customer’s report within the response times detailed in the below table:

Priority Level Description Target Resolution Time* Target Response Time
High Total loss of service 4 working hours 30 mins
Medium Intermittent fault or partial loss of service 8 working hours 1 hour
Low Service enhancement or services changes 12 working hours 4 hours

4.4. The response times given in the table at clause 4.3  are estimated response times only. The Supplier cannot guarantee the estimated response times and cannot be held liable for any loss or damage arising from any change to the estimated response times.

4.5. Where, having investigated the interruption or fault, the Supplier finds that the interruption or fault was caused by any act or omission of the Customer or failure by the Customer to perform any relevant obligation or any act or omission of any third-party, the Supplier reserves the right to charge the Customer for all reasonable costs incurred in investigating the report and the Customer agrees to pay such costs in full.

4.6. Where an interruption or fault has been caused otherwise than in accordance with clause 4.5 the Supplier may issue the Customer with Service Credits calculated in accordance with this agreement and the associated product service level agreement.

4.7. The duration of any interruption or fault will be measured from the time that the Supplier’s customer services team receives a report from the Customer, until the Supplier can demonstrate that the Services have been restored.

4.8. Service Credits will be the maximum extent of the Supplier’s liability and the Customer’s exclusive remedy in respect of any failure to achieve service levels, and all other rights and remedies are excluded to the maximum extent permitted at law.

4.9. The calculation of Service Credits are product dependant and, where applicable, are calculated as stated within the associated products’ service level agreement.

4.10. Service Credits shall not be issued where:
a) The cause of the interruption or fault was beyond the Supplier’s control;
b) The interruption or fault lasted for less than 60 minutes, calculated by reference to the records of the Supplier or any third party carrier involved in the provision of the Services;
c) The Supplier receives a claim for Service Credits from the Customer more than 30 calendar days after the interruption or fault which gives rise to the claim;
d) Any act or omission of the Customer or failure by the Customer to perform any relevant obligation or any act or omission of any third-party caused or contributed to the interruption or fault.

5. Customer’s Obligations

5.1. The Customer shall:
a) Ensure that the terms of the Order are complete and accurate;
b) Co-operate with the Supplier in all matters relating to the Services;
c) Provide all necessary hardware, software, network facilities, lines and telecommunications services required for the provision of the Services by the Supplier, unless otherwise specified within the Order;
d) Ensure that all equipment provided by the Customer conforms with the relevant standard designated by all relevant legislation, including the Telecommunications Act 1984, the Communications Act 2003, the Radio Equipment and Telecommunications Terminal Equipment Regulations 2000 and any other requirements or standards as the Supplier may notify the Customer of from time to time;
e) Provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
f) Provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
g) Prepare the Customer’s premises for the supply of the Services;
h) Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
i) Comply with all applicable laws, including health and safety laws;
j) Keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
k) Comply with any additional obligations as set out in the Order;
l) Indemnify and keep indemnified and defend at its own expense the Supplier against all costs, claims, damages or expenses incurred by any third party or for which the Supplier may become liable due to any failure by the Customer or its employees or agents to comply with any of its obligations under this agreement;
m) Provide the Supplier with 10 Business Days’ written notice of any advertising, promotions or campaigns, which the Customer reasonably believes may cause significantly abnormal demands on any network to which the Customer has access to as part of the Services;
n) Assume responsibility for the security of its use of the Services, including but not limited to protecting all passwords, backing up all data, employing appropriate security devices, including virus checking software and having disaster recovery processes in place; and
o) Inform the Supplier immediately if it becomes aware of any matters that it believes may threaten the security of the Services.

5.2. The Customer shall not:
a) Copy, modify, deliver to any third party or decompile any software which the Supplier supplies in connection with the Services;
b) Use the Services in a manner which would constitute Unacceptable Use;
c) Exceed the Usage Threshold;
d) Cause congestion nor disrupt nor overload any network to which the Customer has access to as part of the Services;
e) Use the Services in a way that does not comply with the terms of any legislation or any codes of practice, regulations or any licence or authorisation or that is in any way unlawful or fraudulent or to the Customer’s knowledge has any unlawful or fraudulent purpose or effect;
f) Use the Services to carry out fraud or a criminal offence against any other public telecommunications operator;
g) Use the Services in a way that in the Supplier’s reasonable opinion could affect the quality of any telecommunications service or other service provided by the Supplier or any third party;
h) Threaten, harass, stalk, abuse, disrupt or otherwise violate or infringe the rights (including but not limited to copyright, rights of privacy and publicity) of others;
i) Obtain access, through whatever means, to notified restricted areas of the underlying network;
j) Send and receive data in such a way or in such amount so as to adversely affect the network (or any part of it) which underpins the Services or to adversely affect other customers or suppliers of the Supplier;
k) Engage in conduct which amounts to improper or persistent misuse of a public telecommunications network or service within the meaning of sections 127 to 128 of the Telecommunications Act 1984 or the Communications Act 2003;
l) Make available or upload files that contain software or other material, data or information not owned by or licensed to the Supplier or the Customer;
m) Make available or upload files that contain a virus or corrupt data;
n) Falsify the true ownership of software or other material or information contained in a file that the Supplier or the Customer makes available via the broadband service;
o) Publish, post, distribute, disseminate, send, receive, upload, download, use or re-use material which is abusive, indecent, defamatory, offensive, obscene or menacing, or in breach of copyright, privacy or any other rights;
p) Deliberately abuse any part of the Services;
q) Post or send the same or similar messages in multiple use net or news groups;
r) Send or provide unsolicited commercial messages or communications in any form;
s) Falsify user information;
t) Act in such a way which threatens the integrity or security of any computer system;
u) Attempt to use the Services in a way which avoids incurring or paying charges for such usage;
v) Use the Services in a way which violates general standards of internet conduct and usage such as denial of services attacks, web-page defacement, and port and network scanning;
w) Forge addresses;
x) Share network connections in a manner which enables third parties to access and use such connections;
y) Use the Services other than in accordance with the acceptable use policies of any connected Networks;
z) Use the Services in a way that may pose a threat to the safety of persons or may pose a hazard which would impair or prevent the operation of equipment;
aa) Disclose passwords;
bb) Violate any restrictions on the size of emails;
cc) Post or send off-topic items to use a net or news group; or
dd) Use the Services in a way that is likely to impede the activities of authorised persons responding to an emergency.

5.3. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
a) Without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
b) The Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.3; and
c) The Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

6. Allocation and Use of Telephone Numbers

6.1. The Customer shall not acquire any legal, equitable or other rights in relation to any telephone numbers, NGNs or codes allocated to the Customer by the Supplier. The Customer is not entitled to sell, licence or transfer any telephone numbers, NGNs or codes allocated by the Supplier and neither is the Customer permitted to register them as trademarks or to use such numbers to form part of a trademark or logo.

6.2. In the event that the Supplier allocates any telephone numbers, NGNs or codes to the Customer and the Customer incurs costs promoting or advertising the telephone numbers, NGNs or codes in any form, the Supplier shall not be liable for those costs,  if it becomes necessary to amend the telephone numbers, NGNs or codes or introduce additional codes in order to comply with the terms of any legislation, codes of practice, regulations or any licence or authorisation applicable to the Supplier or the Customer.

6.3. The Supplier reserves the right to impose a connection fee and/or annual or monthly service charges, provided that this has been specified within the Order.

6.4. The Supplier reserves the right to charge the Customer a nominal transfer fee on each VGN and NGN, where the Supplier has agreed to transfer a number or numbers for the Customer to another reseller or carrier.

6.5. The Supplier reserves the right to reallocate telephone numbers, NGNs or codes allocated to the Customer if these are not used for a period of 6 consecutive months.

6.6. Where the Supplier agrees to provide the Customer with a Number Loan:
a) The Customer agrees to relinquish any and all borrowing rights at any time upon 30 days written notice from the Supplier;
b) The Supplier reserves the right to port this number at any time to an alternative provider;
c) The Customer is not entitled to port this number at any time as it is on loan from the Supplier.

6.7. If the Supplier becomes aware that the Customer has breached the terms of clauses 6.6(a) or 6.6(c) the number that is subject to the Number Loan shall immediately, and without notice or any recourse to you, be disconnected and re-connected to one of the Supplier’s own landline numbers.

7. Charges and Payment

7.1. The Charges for the Services shall be calculated by the application of the appropriate rate per unit of time, taking into account destinations and categories of call:
a) The Charges shall be calculated in accordance with the Tariff, as set out in its current price list at the date of the Contract;
b) The Supplier shall be entitled to charge connection fees, disconnection fees, re-connection fees and/or annual or monthly service charges;
c) In the event that the Customer’s monthly call traffic falls below 70% of the Estimated Agreed Usage, the Supplier shall be entitled to charge in accordance with its current price list at the date of the Contract, fees for 70% of the Estimated Agreed Usage;
d) The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any equipment or other materials; and
e) In the event that the Customer fails to comply with clause 12.1(b), the Supplier shall be entitled to charge a non-return of hardware charge in accordance with the Tariff.

7.2. Where an Out Payment is due to be paid by the Supplier to the Customer the Supplier shall:
a) Notify the Customer of the amount due via a credit invoice within 15 business days of the end of each monthly billing period; and
b) Pay the balance of Out Payments due to the Customer by BACS transfer to a bank account nominated in writing by the Customer, within 45 calendar days of the date of the  relevant credit invoice.

7.3. Where the total of all outstanding Out Payments due to the Customer is less than £20.00 no Out Payments shall be made by the Supplier to the Customer until the total of all outstanding Out Payments exceeds £20.00.

7.4. The Supplier may vary the Charges or Out Payment for any Service from time to time by giving the Customer not less than 30 days’ prior written notice.

7.5. Where an amendment to the Charges under clause 7.1 will have a material adverse effect on the Customer’s business, the Customer may terminate this agreement by providing the Supplier with not less than 90 days’ prior written notice.

7.6. The Customer shall pay each invoice submitted by the Supplier:
a) Within 14 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
Time for payment shall be the essence of the Contract.

7.7. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

7.8. If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.8 will accrue each day at 4% a year above HSBC’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

7.9. All amounts due to the Supplier from the Customer under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).  The Supplier shall be entitled to deduct any sum owing to the Customer from any sums owed by the Customer to the Supplier.

7.10. Rebates or Out Payments due to the Customer shall be notified to the Customer within 15 Business Days of the relevant billing period and, subject to clause 7.11, will be paid within 35 Business Days of such notification.

7.11. Rebates or Out Payments due to the Customer will not be paid to the Customer where:
a) The Customer has failed to provide the Supplier with sufficient details for a BACS payment to be made; or
b) The credit due to the Customer for the relevant period is less than £20.

7.12. Credits due to the Customer and not paid in accordance with clause 7.11 will be retained for a period of 12 months from the date they were notified to the Customer.  If either of the circumstances in clause 7.11 has not been rectified before that date, then the credits will be lost.

7.13. Customers will be required to pay the Charges via direct debit or a payment plan agreed with the Supplier. In the event that the Customer pays the Charges via an alternative non-agreed method a payment processing charge will be applied as detail in the Customer’s invoice(s)

8. Intellectual Property Rights

8.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

8.2. The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Software for the purpose of receiving and using the Services.

8.3. The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 8.2.

8.4. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

8.5. The Customer shall not copy, decompile, or modify the Software without the consent of the Supplier and will not distribute or disclose the Software to any third party.

8.6. The Supplier has no obligation to review or edit any of the information which is stored or transmitted through its equipment or the equipment provided by any third party carriers. However, the Supplier reserves the right to access, retain and disclose copies of such information for the purpose of:
a) Correcting, maintaining or improving the Services;
b) Complying with any relevant laws, regulations and statutory instruments or terms of licenses or contracts relating thereto;
c) Observing the performance of the Services including monitoring service levels;
d) Retaining a record of activity on the Supplier’s equipment or the equipment provided by any third party carriers;
e) Complying with a request for information from any court of competent jurisdiction or appropriately authorised body; or
f) Ensuring that the Customer is not using the Services in a manner which would constitute Unacceptable Use.

9. Data Protection And Data Processing

9.1. The Customer and the Supplier acknowledge that for the purposes of the EU General Data Protection Regulation, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data.

9.2. The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.

9.3. The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

9.4. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

9.5. The Supplier warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
a) Take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
i) The harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
ii) The nature of the data to be protected;
b) Take reasonable steps to ensure compliance with those measures.

9.6. Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 8.6(f).

9.7. The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.

9.8. The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:
a) Is on terms which are substantially the same as those set out in the Contract; and
b) Terminates automatically on termination of the Contract for any reason.

10. Limitation of Liability:
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

10.1. Nothing in the Contract shall limit or exclude the Supplier’s liability for:
a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b) Fraud or fraudulent misrepresentation; or
c) Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

10.2. Subject to clause 10.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
a) Loss of profits;
b) Loss of sales or business;
c) Loss of agreements or contracts;
d) Loss of anticipated savings;
e) Loss of use or corruption of software, data or information;
f) Loss of or damage to goodwill; or
g) Any indirect or consequential loss.

10.3. Subject to clause 10.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the lower of £1,000.00 or 15% of the annual aggregate Charges arising under the Contract.

10.4. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10.5. This clause 10 shall survive termination of the Contract.

11. Termination

11.1. Neither party may terminate the Contract at any time, save for in accordance with one of the following clauses:
a) Clause 2.4;
b) Clause 2.6;
c) Clause 7.5;
d) Clause 11.2;
e) Clause 11.3; or
f) Clause 11.4.

11.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
a) The other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
b) The other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
c) The other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
d) The other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

11.3. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
a) The Customer fails to pay any amount due under the Contract on the due date for payment;
b) There is a change of control of the Customer;
c) The Customer falls short of the Estimated Agreed Usage or any minimum usage amount or value pre-agreed with us for a period of 90 calendar days or more;
d) If any licences held by the Customer, the Supplier or any third party carrier involved in the provision of the Services are revoked or modified in any way which has a material impact on the Supplier’s ability to provide the Services;
e) If any alteration is made to the Contract, the Order or this agreement otherwise than in accordance with clause 14.5.

11.4. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
a) The Customer fails to pay any amount due under the Contract on the due date for payment;
b) The Customer becomes subject to any of the events listed in clause 11.2(b) to clause 11.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them;
c) The Supplier has reasonable grounds to believe that the Customer has been using or is intending to use the Services in a manner which would constitute Unacceptable Use;
d) Technical limitations arise which materially affect the functionality or performance of the Services;
e) The Supplier has reasonable grounds to believe that the Customer’s conduct or intended conduct is or will be in any way detrimental to the Supplier;
f) Any upgrades, servicing or emergency maintenance are required or any other operational reasons arise which, in the reasonable opinion of the Supplier, require the suspension of the Services;
g) Any third party carrier involved in the provision of the Services suspends or causes the suspension of the Services or any part thereof, for any reason whatsoever.

12. Consequences of Termination

12.1. On termination of the Contract:
a) The Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
b) The Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

12.2. If either party:
a) Terminates the Contract;
b) Cancels any part or all of the Services; or
c) Reduces their usage of non-fixed services as a result of using another service provider;
During the Commitment Period the Customer shall pay to the Supplier the Average Monthly Billing, multiplied by the number of months remaining within the Commitment Period plus the monthly fixed rental charge, multiplied by the number of months remaining within the Commitment Period, as compensation for loss of profit.

12.3. If the Customer terminates the Contract, or cancels any part or all of the Services by giving notice under clause 7.5, during the Commitment Period, the cancellation charges detailed at clause 12.2 shall not be payable.

12.4. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

12.5. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

13. Electronic Record and Signature Disclosure

13.1. By clicking the ‘I agree’ button, the Customer:
a) Agrees that it has reviewed these Conditions and consents to be legally bound by them; and
b) Consents to transact business with the Supplier electronically using the Zoho Sign electronic signature system.

13.2. Once the Customer signs a document electronically the Supplier will send a PDF version of the document to the Customer.

13.3. The Customer must inform the Supplier immediately if the email address that the Supplier holds for it changes, by emailing [email protected].

13.4. The Customer has the right, at any time:
a) To request paper copies of the documents that the Supplier has sent to it electronically; or
b) to withdraw its consent to receive and sign documents in electronic format by emailing [email protected].

13.5. If consent is withdrawn in accordance with clause 13.4(b) the Supplier will stop sending documents using the Zoho Sign electronic signature system.

14. General

14.1. Force majeure.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

14.2. Assignment and other dealings.
a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

14.3. Confidentiality
a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.3(b).
b) Each party may disclose the other party’s confidential information:
i) To its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14.3; and
ii) As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

14.4. Entire agreement.
a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
c) Nothing in this clause shall limit or exclude any liability for fraud.

14.5. Variation.
Except as set out in these Conditions, no variation of the Contract, the Order or this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.6. Waiver.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

14.7. Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

14.8. Notices.
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

14.9. Third party rights.
a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

14.10. Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

14.11. Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.