Terms and Conditions
Grapevine Connect Terms & Conditions V2.3
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Agreement: includes the Service Description and these Conditions which are expressly incorporated by reference and where appropriate, the Customer’s purchase order and the Suppliers acceptance of it, or the Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2.
Charge(s): the price payable by the Customer for the Services and the Equipment in accordance with condition 6 and more fully set out in the relevant Service Description.
Commencement Date: means the date from which the Services are to commence as set out in the Service Description or if no date is specified from the actual date that the Supplier started to provide the Services which shall be subject to condition 3.2.
Customer: the person, firm or company who purchases Services from the Supplier under an Agreement or otherwise.
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Customer Materials: all Documents, information and materials provided by the Customer relating to the Services including (without limitation), information, data bases, computer programs, data, reports and specifications.
Customer’s Project Manager: the Customer’s manager for the Project appointed in accordance with condition 5.
Deliverables: all Documents, Equipment and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form or media, including computer programs, data, reports and specifications (including drafts) of the Deliverables specified in Part 1of the Service Description.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Dispute: any dispute under the Agreement.
Dispute Resolution Procedure: the dispute resolution procedure set out in clause 12.
Equipment: the hardware, software and networking equipment agreed to be purchased by the Customer from the Supplier or the Suppliers distributors (including any part or parts of it) under the Agreement.
Support Agreement Exclusions: the exclusions relating to the Equipment covered under a Support Agreement set out in clause 27.7.
Network Services Agreement: the term given to the agreement providing particular services set-out in clause 25.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: materials of either Party which existed before the commencement of the Services or any Project.
Project: the project as described in the Project Plan or in any Service Description.
Project Milestone: a date by which a part of the Project is estimated to be completed, as set out in the Project Plan.
Project Plan: the detailed plan describing the Project and setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Services by the Supplier in accordance with the relevant Service Description.
Replace Definitions: The definitions relating to the replacement of Equipment covered under a Support Agreement as set-out in Clause 27.
Supplier Materials: all Documents, information and materials provided by the Supplier relating to the Services including (without limitation) computer programs, data, reports, specifications and web-based applications.
Service(s): the individual service or services, including any Project, to be provided by the Supplier under the Agreement and as described more fully in the Service Description and/or any other Service(s) which the Supplier provides, or agrees to provide, to the Customer from time to time. Each of the Service(s) set out in each Service Description are to be considered as a separate Service under the Agreement and the term “Service” shall be construed to mean the individual Service that the Supplier is providing to the Customer in that Service Description.
Service Description: means the document as agreed between the Parties the form of which is set out at Service Description to the Agreement and the Service Descriptions which have been agreed are incorporated in to the Agreement by reference.
Software: any software provided by the Supplier as part of the Services and includes any operating system or software installed on the Equipment.
Supplier: Grapevine Connect Limited.
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the Parties under which title passes to the Customer.
Supplier’s Project Manager: the Supplier’s manager for the Project, appointed in accordance with condition 5 and the Service Description.
Term: means the term of the Agreement specified in a Service Description or under Term in Network Services Agreement and subject to clause 3 of these Conditions
Toll Fraud: means the term relating to the fraudulent access to a telephone line or telephone system without the intention to pay. The result of Toll Fraud to your services is subject to Clause 26.
VAT: value added tax chargeable under English law for the time being and any similar or additional tax and includes any similar sales taxes in any other jurisdiction.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of the Agreement.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to writing or written does not include faxes.
1.7 Any obligation in the Agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8 References to Conditions and Schedules are to the conditions and schedules of the Agreement including the Network Services Agreement and/or the Support or Helpdesk Schedule and/or the Service Description.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Agreement; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in a Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier or acknowledgement of order, constitutes an offer by the Customer to purchase the Services or the Equipment specified in them on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
(a) by a written acknowledgement of order issued and executed by the Supplier; or
(b) (if earlier) by the Supplier starting to provide the Services or delivering the Equipment,
when a contract for the supply and purchase of the Services or Equipment on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Agreement.
2.3 Quotations are given by the Supplier on the basis that no contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days unless stated otherwise, for example, where the Supplier has received a quote from a distributor or its suppliers which sets out a different period of validity, provided always that the Supplier or any of its suppliers or distributors have not previously withdrawn the quote.
3. COMMENCEMENT AND DURATION
3.1 The Services supplied under a Service Description shall be provided by the Supplier to the Customer from the “Commencement Date” as specified in a Service Description or the date of acceptance by the Supplier of the Customer’s offer in accordance with condition 2.
3.2 Subject to condition 0 and unless specified otherwise in a Service Description, Support or Helpdesk Schedule or Network Service Agreement, the Services supplied under the Agreement and/or these Conditions shall continue to be supplied for a period of 3 years (36 calendar months) (Initial Term) from the Commencement Date and, after that, shall continue to be supplied unless and until the Agreement or the relevant Service Description is terminated by either party giving at least 90 days’ notice of termination to the other to expire on the anniversary of the Commencement Date or on any subsequent anniversary thereof and otherwise subject to the termination provisions of this Agreement.
4. SUPPLIER’S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance with the Service Description or any Project Plan.
4.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in a Service Description or Project Plan and to meet the Service Levels if specified in the Service Description. Any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it provided that it shall not be liable under the Agreement if, as a result of such observation, it is in breach of any of its obligations under the Agreement.
4.4 The Supplier may, if required for a particular Project, appoint a Supplier’s Project Manager. The Supplier shall use reasonable endeavours to ensure that the same person acts as Supplier’s Project Manager throughout the Project, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services and where required for a Project, appoint the Customer’s Project Manager, who shall have the authority to contractually bind the Customer on matters relating to the Project;
(b) provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier;
(c) provide to the Supplier, in a timely manner, such Customer Materials and other information as the Supplier may require and ensure that it is accurate in all material respects; and
(d) obtain and maintain all necessary licences and consents and comply with all relevant governmental legislation or regulations of any regulatory body in the United Kingdom or from wherever the Services are to be performed by the Supplier, in relation to the Services and the use by the Supplier of the Customer Materials in all cases before the date on which the Services are to start.
5.2 If the Supplier’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, or if the Customer does not notify the Supplier of any delay or cancellation of the Services or any part of them with at least 24 hours prior notice (delay or cancellation notice), the Supplier shall not be liable for any costs, charges or losses sustained or incurred, arising directly or indirectly from such prevention or delay. The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including loss of profits, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere) whether arising directly or indirectly from the Customer’s negligence, failure to perform, or delay in the performance of any of its obligations under the Agreement, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.3 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Agreement to the expiry of twelve (12) months after the termination of the Agreement, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
5.4 Any consent given by the Supplier in accordance with condition 5.3 shall be subject to the Customer paying to the Supplier a sum equivalent to 25% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 25% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
6. CHARGES AND PAYMENT
6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges as set out in a Service Description together with such additional sums which are agreed between the Parties for the provision of the Services and for any Project.
6.2 The Customer shall be liable for any costs incurred as a result of the Customer’s instructions or lack of instructions, the inaccuracy of any Customer Materials or any other cause attributable to the Customer.
6.3 All Charges and sums quoted payable to the Customer under the Agreement are exclusive of any VAT, for which the Customer shall be additionally liable at the applicable rate from time to time.
6.4 The Customer shall reimburse the Supplier for all reasonable out of pocket expenses incurred by it in connection with the Services for the Customer.
6.5 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by the Supplier. If the Customer is purchasing Services from the Supplier, the Customer shall pay each invoice submitted to it for the Services in full and cleared funds in advance or as otherwise agreed but in any case, within 14 days of receipt of the relevant invoice.
6.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Santander Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. If relevant, the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) Suspend all Services until payment has been made in full. The Supplier may suspend forthwith provision of the service until further notice without liability to the Customer on notifying the Customer either orally, (confirming the same in writing) or in writing in the event that;
(i) The Customer is in breach of any term of this Agreement or the Customer fails to pay any sum due to the Supplier in respect of any contract or agreement between the Supplier and the Customer; or
(ii) The Customer prevents or delays prearranged maintenance from being carried out; or
(iii) The Customer is suspected in the Supplier’s reasonable opinion of involvement with fraud or attempted fraud in connection with the use of the Service(s)
6.7 Time for payment shall be of the essence of the Agreement.
6.8 All sums payable to the Supplier under the Agreement or the relevant Service Description shall become due immediately on its termination, despite any other provision. This condition 6.8 is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
6.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.10 Fees payable monthly, quarterly or yearly will be paid in advance to the Supplier and will not be refundable in whole or part if the Agreement or any relevant part is terminated during the period to which the payment relates.
6.11 Unless agreed otherwise, Services invoiced monthly can only be paid via Direct Debit which has to be setup at the time of order.
6.12 If the Supplier cannot collect a Direct Debit payment, because the Customer has cancelled the instructions with the Customer’s bank or there are insufficient funds in the Customer’s account, a processing fee of £75+VAT will be applied to the outstanding balance.
6.13 The Supplier reserves the right to immediately suspend all Services on the Customer’s account should the Customer’s Direct Debit fail for any reason outside the Supplier’s control.
6.14 Without prejudice to any other of its rights and remedies, the Supplier will be entitled to remove the Customer’s data from its systems and any Equipment and/or put the Equipment to any use other than the Customer’s if any amount due under the Agreement is not paid within 30 days of its due date for payment. The Supplier is not required to back up such data or return the same to the Customer prior to any such removal or following termination of the Agreement.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Customer warrants that any Intellectual Property Rights in any Customer Materials provided by the Customer in the provision of the Services belongs to the Customer or is appropriately licensed by the Customer from any third party. The Intellectual Property Rights in any Suppler Materials and any Intellectual Property Rights developed or created by the Supplier whether as a result of providing the Services hereunder or otherwise shall belong to the Supplier.
7.2 The Customer warrants that any Customer Materials and its use by the Supplier for the purpose of providing the Services will not infringe any Intellectual Property Rights of any third party, and the Customer shall and hereby indemnifies and shall hold the Supplier harmless against any loss, damages, costs, expenses or other claims arising from any such infringement.
7.3 Subject to condition 7.4 below, the Supplier licenses all such rights in the Supplier Materials to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Agreement is terminated for any reason by either Party, this licence shall automatically terminate.
7.4 The Customer acknowledges that, where the Supplier does not own any Supplier Materials, the Customer’s use of rights in Supplier Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
7.5 Nothing herein shall assign or cause to assign any Intellectual Property Rights of one Party to the other Party in any manner whatsoever.
8.1 The Parties agree not to divulge or allow to be divulged to any person any Confidential Information relating to the business or affairs of the other Party to this Agreement throughout the Term and for 3 years thereafter.
8.2 Any information of either Party, including, without limitation, the terms of the Agreement and any Service Description under it, business and financial information, technical or commercial know-how, specifications, inventions, processes or initiatives, customer and vendor lists and pricing and sales information which are of a confidential nature (“Confidential Information”) disclosed by either of the Parties (“the Disclosing Party”) to the other Party (“the Receiving Party”) pursuant to the Agreement and the provision of the Services shall be confidential. The Receiving Party shall maintain the confidentiality of all such Confidential Information and shall not, without the prior written consent of the Disclosing Party (i) utilise the same, directly or indirectly, for its own business purposes or for any other purpose or (ii) disclose the same to any third Party. This clause does not apply to any information in the public domain or which is required to be disclosed in respect of the provision of the Services by the Supplier to any of its employees, officers, consultants, subcontractors, representatives, advisers or agents, or pursuant to an order issued by a court of competent jurisdiction or applicable law or regulation or information which is disclosed by the Receiving Party to its professional advisors on a confidential basis.
8.3 The Parties shall ensure that their respective employees, officers, representatives, advisers, agents, consultants or subcontractors to whom it discloses such information comply with this condition 8.
9. LIMITATION OF LIABILITY AND WARRANTY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
9.1 This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, officers, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Agreement;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
9.3 Nothing in these Conditions limits or excludes the liability of either Party:
(a) for death or personal injury resulting from negligence; or
(b) for fraud or fraudulent misrepresentation.
9.4 Subject to condition 9.2 and condition 9.3
(a) Neither Party shall be liable for: loss of profits; or loss of business; or; depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, whether or not caused by the negligence of the Supplier or its employees, agents or authorised representatives, which arises out of or in connection with the agreement.
(b) The Supplier’s maximum liability to the Customer shall be limited to the charges levied by the Supplier for the Service for one month in respect of the related Order for any one event, or up to one year’s charge for a series of separate events or up to 10% of the equipment value supplied (whichever is lower). The Customer is under service obligation to take any appropriate Risk Management procedure that could fully mitigate or nullify any actual or potential loss. Such Risk Management may include but not be limited to disaster recovery and / or business continuity planning. The Supplier is not responsible for the Customer’s Risk Management planning.
9.5 The Supplier warrants that it will use reasonable care and skill in performing the services.
9.6 If any part of the Services is performed negligently or in breach of the provisions of this Agreement then, at the request of the Customer (where appropriate and relevant), the Supplier will re-perform the relevant part of the Services, always subject to conditions 9.4 and 9.5.
9.7 The Customer agrees that the Supplier is not liable as above for the actions of its Network Suppliers, third parties and sub-contractors that the Suppler has or continues to reply upon to discharge its obligations to the Customer. The Customer acknowledges the Supplier can be wholly reliant on these parties for the supply of any and all services.
9.8 The Customer shall indemnify and hold harmless the Supplier from and against all Claims and Losses arising from loss, damage, liability, injury to the Supplier employees and third parties, infringement of third party intellectual property, or breach of its obligations of confidentiality; or third party losses by reason of or arising out of any Customer Material or other information supplied by the Customer to the Supplier, its employees or consultants, or supplied to the Supplier by the Customer within or without the scope of this Agreement. ‘Claims’ shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and ‘Losses’ shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
9.9 To the fullest extent permitted by law and save as provided elsewhere in the Agreement, the Services and any Client Systems and Ancillary Systems are provided by the Supplier on an “as is” and “as available” basis and no warranty or representation (express or implied) of any kind are given in connection with the Agreement including as to satisfactory quality and fitness for a particular purpose. In particular, the Supplier gives no warranty or representation that:
(a) the Services will meet the Client’s requirements;
(b) the Services will be provided on an uninterrupted, timely, secure or error-free basis.
9.10 The Parties agree and acknowledges that the allocation of risk and the limitation of liability in this condition 9 are fair and reasonable in the circumstances having been taken into account in setting the level of the Charges and the Services.
10. DATA PROTECTION
The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data may be processed by and on behalf of the Supplier in connection with the Services.
Each Party shall comply with the provisions of General Data Protection Regulations (“GDPR”) and shall ensure that it properly processes personal data (as defined in the Act) as may be required in the performance of this Agreement. There will be no processing of data outside of the EU.
11.1 Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate the Agreement without liability to the other immediately on giving notice to the other if:
(a) the other Party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) the other Party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach; or
(c) the other Party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; or
(d) if the other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other Party’s assets or business, or if the other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
(e) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this condition 11; or
(f) the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
(g) Cease or termination fees may apply
11.2 The Parties acknowledge and agree that any breach of conditions 8 and 9 shall constitute a material breach for the purposes of this condition 0.
11.3 On termination of the Agreement for any reason:
(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 may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall pay, in addition to other sums payable up to the date of termination, any Support Agreement Charges, Network Service Charges or other charges stipulated on an agreement provided by the Supplier at point of order, that would have been payable had the Agreement continued until the end of the Term.
(c) the Customer shall within 14 days, return all of the Supplier’s Equipment, Customer Materials and Deliverables. 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 or repossessed, the Customer shall be solely responsible for their safe keeping; and
(d) the accrued rights and liabilities of the Parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.4 On termination of the Agreement (however arising), the following conditions shall survive and continue in full force and effect: condition 7; condition 8; condition 9; condition 0; and condition 23.
12. DISPUTE RESOLUTION PROCEDURE
12.1 The Parties shall attempt, in good faith, to resolve any Dispute promptly by negotiation which shall be conducted as follows:
(a) The Parties shall forthwith meet to attempt to settle such dispute.
(b) If the Dispute cannot be settled in the meeting referred to in (a) above, either of the Parties may refer the Dispute to its operational managers who shall conduct negotiations in a timely manner and shall carry out all due diligence required to settle the dispute;
(c) if the Dispute cannot be resolved by the operational managers within 14 days after the Dispute has been referred to them, either Party may give notice to the other Party in writing (Dispute Notice) that a Dispute has arisen;
(d) Upon receipt of the Dispute Notice, the Dispute shall be immediately referred to the Managing Directors, or persons in a similar senior position of that Party. The Managing Directors shall attempt to settle the dispute using their best endeavours. The Managing Directors shall have 14 days within which to settle the Dispute.
12.2 If the persons stated above are unable, or fail, to resolve the Dispute within 14 days of the date of the Dispute Notice, and if and to the extent that the Parties do not resolve any Dispute or any issue in the course of this Dispute Resolution Procedure either Party may commence or continue court proceedings in respect of such unresolved Dispute or issue.
12.3 Nothing in this clause 12 shall prevent either Party from instigating legal proceedings where an order for an injunction, disclosure or legal precedent is required.
12.4 Without prejudice to the Customer’s right to seek redress in court, the Supplier shall continue to provide the Services and to perform its obligations under the Agreement and the Customer shall continue to pay the Charges notwithstanding any Dispute or the implementation of the Dispute Resolution Procedure set out in this clause 12.
13. CHANGE CONTROL
13.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other party in writing.
13.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Supplier’s charges arising from the change;
(c) the likely effect of the change on the Project Plan; and
(d) any other impact of the change on the terms of the Contract.
13.3 If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
13.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its Charges, the Service Description, the Project Plan and any other relevant terms of the Agreement to take account of the change.
14. FORCE MAJEURE
14.1 Neither Party shall have any liability to the other under the Agreement if it is prevented from, fails or is delayed in performing, its obligations under the Agreement or any Service Description or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other Party), failure of a utility service, network or transport network, act of God, pandemic, civil war, riot, civil commotion, malicious damage, cyber attack, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers, distributors or subcontractors.
14.2 The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement or the relevant Service Description by written notice to the other Party.
15.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory/regulatory requirements, provided that such changes do not materially affect the nature, scope of, or the Charges for the Services. If any such variation requires a change in scope or the Charges, the Supplier will give the Customer at least one (1) months’ notice of any change and the Customer will not unreasonably withhold its consent to such change.
15.2 Subject to condition 15.1, no variation of the Agreement or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the Parties by their duly authorised representatives of the Parties.
16.1 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a Party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
16.2 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
17.1 If any provision of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Supplier.
18. ENTIRE AGREEMENT
18.1 The Agreement constitutes the whole agreement between the Parties and supersedes all previous agreements, representations or understandings between the Parties whether written or oral between the Parties relating to its subject matter.
18.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Agreement.
19.1 Either Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of or a substantial part of its business, provided that the assignee undertakes in writing to the other Party to be bound by all of the obligations of the assignor under this Agreement.
20. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. RIGHTS OF THIRD PARTIES
For the purposes of the Agreements (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement, this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
22.1 Any notice or other communications to be given under the Agreement shall be in writing and may be delivered by hand or sent by first class prepaid recorded delivery post (or if the recipient is in another country by prepaid airmail) or sent by commercial courier to the relevant person and address stated in the relevant Service Description of this Agreement (or to such other address as a Party may from time to time have notified the other Party for that purpose).
22.2 Notice or communications shall be deemed to have been received, if delivered by hand at the time of delivery, if posted two (2) working days or ten (10) working days if prepaid airmail) after posting, and if sent by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
22.3 This condition 22 shall not apply to the service of any proceedings or other documents in any legal action.
23. GOVERNING LAW AND JURISDICTION
23.1 The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.
23.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
24. FURTHER ASSURANCE
Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
24. RISK AND TITLE
24.1Any Equipment that has been agreed to be purchased by the Customer will be at the Customer’s risk from the time of delivery by the Supplier.
24.2All title, property and ownership in the Equipment shall vest in the Supplier against the Customer and any third party to whom the Equipment or any part of it is sold or dealt with by the Customer in any manner whatsoever until receipt of the full purchase price by the Supplier from the Customer. If the Customer fails to pay the full purchase price within the agreed time limits, the Customer’s right to possession of the Equipment shall terminate and the Supplier shall be entitled to enter upon any of the Customer’s premises where the Equipment is stored or on to any premises of any third party where the Equipment may be stored or installed or incorporated thereon to repossess it. The Customer hereby grants to the Supplier, it’s agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover it. If the Equipment is in the possession of, installed or incorporated on any premises of a third party and the Supplier has not received the full purchase price and the Customer’s right to possession has terminated, the Supplier reserves the right upon reasonable notice to enter upon any premises of the third party where the Equipment is stored and repossess the Equipment. The Customer will cooperate with the Supplier and shall use best endeavours to procure the consent and co-operation of such third party to facilitate re-possession of the Equipment by the Supplier, it’s agents or employees.
24.3If the Customer has not paid the full purchase price for the Equipment the Customer’s right and any right of any third party to possession of the Equipment shall terminate immediately if the Agreement is terminated in accordance with any provision of condition 11.
25. NETWORK SERVICES AGREEMENT
25.1 Your Network Services Agreement with us is made up the following documents:
(a) The Terms set-out in this document
(b) Network Services Agreement Order Form
(c) Any other supplementary documents relating to specific services we agree to provide to you
25.2 Network Service may include (but are not limited to):
(a) The ability to make or receive a Call (telephone service)
(b) The provision of a Line or Lines for a rental charge (line rental service)
(c) The provision of Broadband internet access (broadband service)
(d) The provision of Inbound telephony services (inbound service)
(e) The provision of Mobile telephony services (mobile service)
(f) The provisions of IP Telephony (3CX Telephone system service)
(g) Any other services that we may offer from time to time
25.3 Changes and interruptions to the Network Services
(a) We, or our Service Providers, may have to do some things that could affect the Services.
(b) If we, or our Service Providers, have to interrupt the Services we, or they, will restore them as quickly as we, or they, reasonably can. For example, the Supplier may suspend the Services if required to do so by any competent authority, if it needs to carry out any maintenance operations, if the Supplier receives notification from the Service Provider of their requirement to suspend the Services or if the suspension is required for any other reason beyond the Supplier’s reasonable control.
25.4 We cannot guarantee and do not warrant that the Services will be free of interruptions or will be fault-free and we will not be liable for any loss or damages should the Services be interrupted. You accept that there may also be degradations of the quality of the Service from time to time due to matters beyond our control and that we will not be liable for any loss or damages should the quality be affected.
25.5 DURATION OF THIS CONTRACT:
The term of the Network Services Contract shall be the initial period of 36 months, unless specified otherwise in the Network Services Agreement, and thereafter from year to year unless either party gives to the other three month’s written notice of termination expiring at the end of any annual period. Provided that if the Customer has committed any breach of this Contract and has not remedied such breach within fourteen days after notice to that effect from the Supplier this Contract may be terminated by notice from the Supplier to the Customer at the latter’s last known address.
25.6 VARIATION OF CHARGE:
The Supplier may vary the charges payable hereunder by written notice to the Customer provided that no such variation shall take effect earlier than the initial period specified in the schedule.
25.7 PROHIBITION OF ORAL VARIATIONS:
The terms and conditions in this Contract are the sole terms and conditions of the Contract between the Supplier and the Customer. No variation or modification of these terms or conditions and no agreement made or purported to be made between the Supplier and the Customer inconsistent with these terms or conditions shall be valid or of any effect unless made in writing and signed by a Director or the appointed officer of the Supplier. No representation relating to or in any way connected with the Equipment shall be deemed to be made in writing and signed by a Director or the appointed Officer of the Supplier.
26. TOLL FRAUD
THE CUSTOMER IS RESPONSIBLE FOR THE SECURITY OF THE SERVICES, INCLUDING, FOR EXAMPLE TAKING MEASURES TO ENSURE ANY TELEPHONE SYSTEMS ARE NOT HACKED. FOR EXAMPLE, THE CUSTOMER MUST SET SECURE PASSWORDS FOR THEIR VOICEMAIL. THE CUSTOMER AGREES TO PAY ALL COSTS DUE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMIT, COSTS INCURRED UNDER THE SERVICE BY A THIRD PARTY WHO HAS ACCESSED THE CUSTOMER’S SERVICES WITH OR WITHOUT THEIR CONSENT.
27. SUPPORT SERVICES AGREEMENT
27.1 Your Support Services Agreement with us is made up the following documents:
(a) The Terms set-out in this document
(b) Support Schedule
(c) Any other supplementary documents relating to specific services we agree to provide to you
27.2 THE CUSTOMER AGREES:
(a) To pay the Support charges prescribed in the Schedule in all circumstances and if any time should the whole or any part thereof be in arrears for more than 30 days then the Supplier shall be entitled to suspend the services hereunder until payment is made in full.
(b) If the equipment is to be connected to British Telecom or any other Service Provider’s apparatus to comply with all their requirements and at the Customers expense to arrange the provision of any such apparatus specially required for the Customers purpose.
(c) To orally notify the Supplier immediately of any fault in the Equipment or any repair which may be necessary, such notification to be confirmed in writing and to provide the Supplier at all reasonable times with access to equipment and allow it to carry out support of the Equipment under the terms of this Contract.
(d) Not to maintain, service, repair, adjust, tamper or alter the Equipment or Extension wiring. In the event of requiring any alterations to the Equipment or Extension wiring, to give the Supplier 14 days written notice and should any alterations be effected by an agent not appointed by the Supplier to allow the Supplier the right of inspection of that work which should be carried out in accordance with the current “Code of Practice” and should the work be found to be unsatisfactory to remedy the defect within 90 days of inspection or pay the Supplier’s charges for effecting the remedy. Any breach of this condition may result in the Contract being terminated by the Supplier, if the Supplier so desires.
(e) To pay the Supplier’s charge for reprogramming and/or service visits as a result of a programming error effected by the Customer or his agent.
(f) Not to assign the benefit of this Contract without previous written consent from the Supplier.
27.3 THE SUPPLIER AGREES:
(a) To maintain the Equipment at the installation address in the schedule (or such other address as may be agreed in writing by the Supplier) in efficient working order and during the continuance of the Contract to execute by its servants, agents or contractors without charge all repairs and replacements to the Equipment necessitated by fair wear and tear and/or faulty workmanship and/or faulty materials provided the Customer shall have duly notified the Supplier of such fault or necessary repair in accordance with Clause 27.2 (c) hereof (excludes DECT Handsets). Such service to be provided between the hours specified in the Support Schedule, provided however that the Supplier (without prejudice to the terms and conditions of this Contract or the Customers liability for payment of Support charges) shall not be obliged to service the Equipment if any invoice is overdue
(b) At the expense of the Customer to provide service where failure of the Equipment is subsequently found to be due to mis-operation or failure of British Telecom or any other Service Provider’s equipment and/or Host PBX systems and/or electricity supply service or if any person not authorised by the Supplier to do so shall have tampered with the equipment.
(c) At the request and expense of the Customer: to carry out any alterations to the Equipment or Extension Wiring and/or upon receipt of 14 days notice to allow the Customer’s appointed agents to carry out alterations to the Equipment or Extension wiring. The Supplier reserves the right to inspection of such work and if found to be unsatisfactory shall require the Customer to remedy the defect within 90 days of the inspection.
(d) At the request and expense of the Customer to move the Equipment to alternative premises where in the opinion of the Supplier suitable service and reception facilities exist provided the Equipment does not thereby pass out of the possession of control of the Customer.
27.4 DURATION OF THIS CONTRACT:
The term of the Support Contract shall be the initial period of 36 months, unless specified otherwise in the Support Schedule, and thereafter from year to year unless either party gives to the other three month’s written notice of termination expiring at the end of any annual Support period. Provided that if the Customer has committed any breach of this Contract and has not remedied such breach within fourteen days after notice to that effect from the Supplier this Contract may be terminated by notice from the Supplier to the Customer at the latter’s last known address.
27.5 VARIATION OF SUPPORT CHARGE:
The Supplier may vary the Support charge payable hereunder by written notice to the Customer provided that no such variation shall take effect earlier than the initial period specified in the schedule or less than one year after a preceding variation.
27.6 PROHIBITION OF ORAL VARIATIONS:
The terms and conditions in this Contract are the sole terms and conditions of the Contract between the Supplier and the Customer. No variation or modification of these terms or conditions and no agreement made or purported to be made between the company and the Customer inconsistent with these terms or conditions shall be valid or of any effect unless made in writing and signed by a Director or the appointed officer of the Supplier. No representation relating to or in any way connected with the Equipment shall be deemed to be made in writing and signed by a Director or the appointed Officer of the Supplier.
(a) The Supplier shall not be liable for any delay in the execution of any work of installation, repair, replacement, alteration or removal of or to the Equipment howsoever caused.
(b) The Supplier shall not be liable for making good defects in the electricity supply, British Telecom or any other Service Provider’s telephone service and connections and/or Host PBX systems. Service calls for these Purposes will be charged to the Customer at the Supplier’s standard rates.
(c) The Supplier shall not be liable for repair of damage resulting from accident, transportation, neglect or misuse, failures of electrical power, surge of electrical power or causes other than ordinary use.
(d) The Supplier shall not be liable for repair of damage resulting from lightning strikes, floods, strikes or any Act of God.
(e) The Supplier shall in no circumstances be liable for any failure or defective working of the Equipment due to any fault, failure or change in the electricity supply service and/or British Telecom or any other Service Provider’s equipment and/or Host PBX systems.
(f) In no circumstances shall the Supplier be liable for any loss of profit, business or production or any similar loss or damages whether direct, indirect or consequential howsoever caused.
(g) The Supplier shall not be liable for making good defects to the Customer’s telephone stations or other peripheral apparatus, unless specified in the schedule, and service calls for these purposes will be charged to the Customer at the Supplier’s standard rates.
(h) The Supplier shall not be liable under section 2 (a) for costs of making good defects in the overhead and underground cables from the Associated Wiring, and service calls for these purposes will be charged to the Customer at the Supplier’s standard rate.
28. EQUIPMENT REPLACE DEFINITIONS
28.1 Hardware: The replacement of hardware (excluding DECT handsets, subject to availability) in line with the Service Level Agreements to rectify faults. This excludes analogue and mobile handsets which may be covered under manufacturer’s warranty.
28.2 Software: The replacement of software (subject to availability) in line with the Service Level Agreement to rectify system faults.
29. SERVICE LEVEL AGREEMENT
29.1 If applicable, the Service Level severities and response times are defined in the Support Schedule.
THE SUPPLIER’S RIGHT HEREUNDER SHALL NOT BE AFFECTED BY GRANTING ANY TIME OR INDULGENCE TO THE CUSTOMER. ALL CHARGES UNDER THIS CONTRACT ARE SUBJECT TO VALUE ADDED TAX. THIS CONTRACT IS NOT A VAT INVOICE; INVOICES WILL BE SENT TO THE CUSTOMER FOR ALL PAYMENTS UNDER THIS CONTRACT.