In these terms and conditions (“Conditions“) and any contract which incorporates these Conditions (“Contract“):-“Acceptable Use Policy” means any acceptable use policy published by the Supplier from time to time, applicable to all its customers from time to time, and any acceptable use policies of any Third Party Service Providers for any Third Party Services, including any fair usage policy to manage the bandwidth and capacity available to all users to ensure that all users have a fair and reasonable share of available capacity, as the same are unilaterally changed from time to time by the Supplier or any Third Party Service Provider;
“Activation” and “Activated” means (as the case may be) that any Connection or other element of the On-Going Services, or any variation to any On-Going Services, is set-up, enabled and available for live production use;
“Additional Charge” means any Charge or other amount payable under this Contract in addition to the Set-Up Charges and Periodical Charges;
“Affiliate” means with respect to a party, any company that is or was, at any time during the Term, a subsidiary or holding company of that party, or any subsidiary of any such holding company, in each case at any level, and including for the avoidance of doubt, any company which becomes such a subsidiary or holding company at any time after the Commencement Date;
“Business Day” means Monday to Friday, except for any day that is a bank or other public holiday in England and Wales, and Christmas Day, Boxing Day, New Years Day and Easter Sunday;
“Business Hours” means 08:30 to 18:00 local time in England and Wales on Business Days;
“Call and Usage Charges” means any Charges calculated by reference to any actual or estimated quantities of usage by the Customer, including calls made or received or data transferred, including as set out in any published tariffs of the Supplier from time to time;
“Charges” means all charges, rates, rentals, tariffs and prices of the Supplier for the Services, including as may be stated in any Order Form(s) or associated Proposal(s), or in these Conditions or any Service Specific Terms, as varied from time to time in accordance with this Contract;
“Commencement Date” means the date of signature by the Customer of the Initial Order Form, or if there is no such date, the date this Contract was made;
“Communications Systems” means all communications systems and other systems, infrastructure, networks, software, computers, and equipment of the Supplier and/or any Third Party Service Provider used to provide, or on, over, through or by means of which any Services are provided, including the CPE;
“Contract Year” means each consecutive period of 12 months commencing on the Commencement Date;
“Connection” means any digital subscriber line (including ADSL, SDSL, and FTTC), leased line, Ethernet, or other network connection or communications service which the Supplier procures, supplies or bonds as part of any Services, which may include the provision of a Line or which may be provided over an existing Line;
“Contract Documents” means the written documents which make up this Contract, comprising: (a) these Conditions, (b) any Service Specific Terms, (c) each Order From; (d) each Proposal, and (e) any other documents published by the Supplier and incorporated by or referred to in any of the foregoing. In the event of conflict, each document shall take precedence over those listed after it, except to the extent that it is expressly stated to be amended by any document appearing after it;
“CPE” means all wires, fibre, cables, network terminating equipment, routers, VPN devices, bonding devices, firewall devices, modems, micro-filters, networks, systems, computers, and other equipment which is provided by the Supplier or any Third Party Service Provider to the Customer, or which otherwise is or needs to be installed by the Supplier or any Third Party Service Provider at any Site, including as part of or in connection with or in order to provide the Services;
“Customer” means the person who is purchasing the Services as detailed in the Order Form(s);
“Customer Client” means, where the Customer is not the end-consumer of any Services, any person who is the ultimate end-consumer of the Services at any Site, such as an Affiliate of the Customer, or if the Customer is an IT service provider, its own client, including as stated for any Site in the Order Form;
“Customer Manager” means the Customer’s manager for Services, appointed in accordance with Condition 9.1;
“Customer Materials” means: (a) all information, data and materials provided by the Customer in connection with this Contract or under any obligation under this Contract (including, computer programs, data, reports, addresses and PSTN numbers, and specifications); and (b) all information, data and materials uploaded, downloaded, transmitted, hosted, stored or otherwise processed using the Services or Deliverables;
“Customer Systems” means any and all networks, computers, systems or other equipment which is connected by the Customer directly or indirectly to the CPE, or which is otherwise used directly or indirectly with or to access, receive or use the Services, or which otherwise belongs to or is used by the Customer, but not including the CPE, Communications Systems;
“Deliverables” means all products, software, and materials developed or supplied by the Supplier in relation to Services in any form, including computer programs, data, reports, systems, networks and specifications;
“Early Termination Charge” means the Charge specified in Condition 14.2(Early Termination Charge);
“Equipment Management” means installation, set-up, commissioning, inspection, variation, administration, configuration, maintenance, repair, replacement, error correction, update, fix, patch, upgrade, renewal, enabling, disabling, removal, and other activities in relation to the management of any hardware, software or other equipment;
“First Activation Date” means in relation to the On-Going Services covered by the Initial Order Form, the following date, whichever is the first to occur: (a) the date that the first Connection or other element of such On-Going Services are originally Activated, as determined by the Supplier; or (b) if the Supplier elects to apply this alternative, the date which the Supplier reasonably determines that such first Connection or other element of such On-Going Services would have been originally Activated, but for any act, omission or breach of this Contract by the Customer. Where an On-Going Service involves the bonding of multiple Connections, then the First Activation Date will be based on when the first of the Connections is enabled and the associated bonding equipment supplied. In relation to any variation to any On-Going Service covered by a Future Order Form, the First Activation Date for that variation will be as ascertained using the above rules, as if reference to the “Initial Order Form” and “On-Going Services” were a reference to the Future Order Form and the variation made to the On-Going Services under that Future Order Form;
“Full Activation Date” means in relation to the On-Going Services covered by the Initial Order Form, the following date, whichever is the first to occur: (a) the date that all Connections and other elements of such On-Going Services are originally Activated, as determined by the Supplier; or (b) if the Supplier elects to apply this alternative, the date which the Supplier reasonably determines that all such Connections and other elements of such On-Going Services would have been originally Activated, but for any act, omission or breach of this Contract by the Customer; or (c) 12 months after the Commencement Date. In relation to any variation to any On-Going Service covered by a Future Order Form, the First Activation Date for that variation will be as ascertained using the above rules, as if reference to the “Initial Order Form” and “On-Going Services” were a reference to the Future Order Form and the variation made to the On-Going Services under that Future Order Form;
“Future Order Form” means any future order form signed by the Customer and accepted by the Supplier, which varies this Contract, including any order form which is supplemental to or a replacement for any previous Order Form(s) under this Contract;
“Initial Period” means the initial period which this Contract is to run for as stated in the Initial Order Form, or if not so stated, 24 months, and as varied in any Future Order Forms(s);
“Initial Order Form“means the initial order form signed by the Customer and accepted by the Supplier, which formed this Contract, confirming any or all of the Customer, the Services, the CPE, and the Deliverables to be supplied under this Contract;
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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;
“Line” means any physical line (including PSTN, ISDN, leased line and Ethernet) between any Site and a communications network (including a copper, fibre or other cable) and/or other Site, over which the Supplier is to procure and provide a Connection or other Services, including (a) any such line to be procured and supplied by the Supplier for any Site as part of the Services, or (b) any such line which is to be procured and supplied by the Customer;
“MAC” means a Migration Authorisation Code enabling the Migration, including as detailed in Condition 22 of the OFCOM General Conditions;
“Migrate“, “Migration” and cognate expressions, means the transfer or other migration of any of the Services, or any Connection or Line provided as part of the Services, away from the Supplier to any other communications provider or other person, by any means (including physically, virtually or logically), including through use of a MAC, and including both where the Service. Connection or Line is continued by the other person and where the Service, Connection or Line is ceased and then the same or a replacement service, connection or line provided by the other person;
“Migrated Service” means any Service or part of a Service (including any Connection or Line) which is to be or has been subject to a Migration, with or without the involvement of the Supplier;
“OFCOM” means the Office of Communications or any successor body to its powers and functions with respect to services of the type covered by the Services;
“OFCOM General Conditions” means the general conditions (and annotations) set by OFCOM, in their form as at the date of this Contract, and as subsequently modified, replaced or revoked from time to time, under Sections 45 and 48 of the Communications Act 2003;
“On-Going Services” means all Services which are not one-off development, implementation, commissioning, set-up or support services. including recurring, periodical, continuing or ongoing services, and the provision of Connections and Lines;
“Order Form(s)” means the Initial Order Form and any Future Order Forms;
“Payment” means any payment which is required to be made by the Customer to the Supplier under this Contract, including on account of Charges, VAT or interest;
“Periodical Charge” means any monthly, quarterly, annual or other periodical or recurring Charge;
“Proposal” means any proposal or quotation from the Supplier for the provision of any services, goods or other things, which led to this Contract or any variation to this Contract, as referred to in any Order Form;
“Quarter” means each period of 3 consecutive months, commencing on a Quarter Day;
“Quarter Days” means 1st January, 1st April, 1st July and 1st October;
“Services” means the services to be provided by the Supplier under this Contract as set out in the Proposal(s) and Order Form(s), including any variations to the Services subsequently ordered by and agreed with the Customer from time to time under this Contract, and any variations to the Services made by the Supplier under any right of variation in this Contract, and including any provision of CPE as part of those services;
“Service Specific Terms” means any descriptions, terms and service levels published by the Supplier with respect to any Service from time to time, as varied in accordance with this Contract from time to time, as referenced in the Order Form(s);
“Set-Up Charge” means the Supplier’s charges for set-up, implementation, and commissioning of any Services and associated CPE, as detailed in the Order Form(s) or associated Proposal(s), and any subsequent set-up charge for any variation to the Services or Deliverables;
“Site” means any site or other premises, other than premises of the Supplier or any Third Party Service Provider, including any site or premises of the Customer, any Affiliate or Customer Client, at or to or from which any Services are to be provided, or any Line or CPE is to be installed, including as stated in the Proposal(s) or Order Form(s), or as otherwise agreed by the parties;
“Supplier” means Evolving Networks Limited, registered in England and Wales, registered office Jubilee House, 90 Holly Hill Lane, Sarisbury Green, Southampton, SO31 7AF, company number 6624361;
“Supplier Property” means anything (other than services) provided by the Supplier to the Customer in connection with this Contract, including CPE, Deliverables, and any materials, information, data, drawings, specifications, and data;
“Telephone Number” means generally any Telephone Number as defined in the OFCOM General Conditions, and specifically any Telephone Number in respect of which any Services are being provided, or which is allocated to the Customer for any Services, in each case, including the calling line identification number for that Telephone Number;
“Term” means the term of this Contract as detailed in Condition 3(DURATION);
“Third Party Service” means all or any part of the Services, or infrastructure or services used to provide the Services, which the Supplier directly or indirectly procures from, loans from, or resells for, or sub-contracts to, a third party, directly or indirectly, including any Connections, Lines or other telecommunications services, CPE, internet access services, data centres, and computer and application services;
“Third Party Service Provider Charges” means any charges which are payable by the Supplier for or in connection with any Third Party Services or to any Third Party Service Provider in relation to any Third Party Service, including any connection and takeover charges, cancellation charges, conversion charges, transfer charges, cease and re-provide charges, shift and visit charges, change of number charges, labour and time charges, installation charges, and abortive visit charges;
“Third Party Service Provider” means any third party that is a direct or indirect provider, reseller, sub-contractor, or supplier of any Third Party Services, including any such person in direct contract with the Supplier, the ultimate owner, provider or supplier of the Third Party Services, any such person in any chain of sub-contracts for any Third Party Services ending with a contract with the Supplier, and any access operator;
“VAT” means value added tax chargeable under the law of England and Wales for the time being and any similar consumption or sales tax; and
“Website” means the Supplier’s website at www.evolving-networks.co.uk or such other website as the Supplier may specify from time to time.
2.FORMATION OF THE CONTRACT
Proposals shall not constitute a legal offer from the Supplier, and shall be construed as an invitation to treat only. In any event, the Supplier may vary or withdraw any Proposal at any time before any legally binding agreement is made on the basis of it.
2.2 Signature of Order Form(s) and Acceptance
When the Customer signs any Order Form or sends and Order Form to the Supplier, or otherwise sends any communication (by email, facsimile or otherwise) to the Supplier that it wishes to proceed with any Proposal, then this shall constitute a legal offer to the Supplier to enter into a contract and to purchase the Services and take on hire the CPE on the terms as established in accordance with Conditions 2.3 to 2.7 below. The Supplier may accept such offer by counter-signing any Order Form or issuing a written acceptance or commencing performance, and at that point this Contract will be formed.
2.3 Application of these Conditions
These Conditions shall apply to and be incorporated into each contract which the Supplier makes to supply any services, including this Contract. The Proposal(s) and Order Form(s) will form part of any contract entered into pursuant to the Order Form(s) or associated Proposal(s). This Contract and these Conditions will also apply to any variations to the Services from time to time.
2.4 Entire Agreement
The written terms of the Contract Documents, and any implied terms not excluded by Condition 2.6, constitute the entire terms of this Contract and the entire agreement between the parties, and supersede, replace and extinguish all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to the subject matter of this Contract. In any event, the Contract Documents shall prevail over any terms implied by law, trade custom, practice or course of dealing.
2.5 Customer Terms
No terms and conditions proposed by the Customer shall apply to this Contract, whether stated in the Contract Documents or not, unless they have been individually negotiated with and agreed in writing in a document issued by the Supplier. In addition, the Customer’s standard terms and conditions of purchase (if any) attached to, enclosed with or referred to in any Order Form or any purchase order or other document or communication issued from the Customer shall not apply to or be incorporated in this Contract.
2.6 Exclusion of Implied Terms
All terms implied by law, statute, trade custom, practice or course of dealing, as to the provision, standard, quality, fitness for purpose, or condition of the Services, Deliverables or CPE, or which comprise or grant rights or remedies to the Customer or obligations on the Supplier, are hereby excluded to the fullest extent permitted by law.
2.7 Pre-Contractual Statements
Each of the parties acknowledges and agrees that, in entering into this Contract, or any variation to it, 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 these terms and conditions or not) relating to the subject matter of this Contract, other than as expressly set out in writing the Contract Documents. Where any such undertaking, promise, assurance, statement, representation, warranty or understanding is set out in the Contract Documents, then a party’s sole remedy shall be for breach of this Contract and a party shall have no remedy. or right to rescind, due to any misrepresentation. This Condition shall not exclude any liability, rights or remedies for fraud or fraudulent misrepresentation.
2.8 Warranty of authority
The Customer warrants that it is entering into this Contract as principal on its own account, and not as agent or trustee for any third party, and that it has full power and authority to execute deliver and perform its obligations under this Contract.
3.1 Initial Period
This Contract shall commence on the Commencement Date and shall continue until the end of the Initial Period. The Initial Period shall be run from the Commencement Date, EXCEPT THAT if the Full Activation Date for the Initial Order Form does not occur until 90 days or more after the Commencement Date, then the Initial Period shall run from the Full Activation Date. After the end of the Initial Period, this Contract shall automatically continue under Condition 3.2(Automatic Renewal), unless Condition 3.3 applies, in which case it shall automatically continue under Condition 3.3.
3.2 Automatic Renewal
3.2.1 Renewal Periods
On the expiry of the Initial Period, and on the expiry of any subsequent Renewal Period under this Condition 3.2.1, this Contract (including all Services) shall automatically renew for a further period equal to the Initial Period (a “Renewal Period“), unless notice to terminate has been given in accordance with Condition 3.2.2. It is the intention of the parties that this Contract (and all Services) shall continue for successive Renewal Periods indefinitely unless and until this Contract terminated under Condition 3.2.2.
3.2.2 Prevention of Automatic Renewal
Either party may terminate this Contract with effect at the end of the Initial Period, or at the end of any subsequent Renewal Period, but not with effect at any intermediate time, by giving not less than 90 days notice to the other prior to the end of the Initial Period or Renewal Period at which termination is to be effective. It is the intention of the parties that this Contract may only terminate under this Condition at the end of the Initial Period or at the end of any subsequent Renewal Period and that this Condition does not allow termination with effect at any other time.
3.3 Rolling Contract – Where Clause 3.2 does not apply
If any Order Form expressly states in writing that automatic renewal under Condition 3.2 shall not apply to this Contract, or if automatic renewal under Condition 3.2 is prohibited by the OFCOM General Conditions, then at the end of the Initial Period, Condition 3.2 shall not apply, and instead this Contract shall continue without limit of time until terminated by either party giving: the period of notice stated in any Order Form; or, if no period of notice is so stated, two clear Quarters’ notice to terminate, so that termination shall be effective at the end of the second Quarter following the Quarter in which such notice is given.
3.4 Migration of Services and OFCOM General Conditions
3.4.1 General Prohibition
Except as stated in Condition 3.4.2(Compulsory Migration), the Customer shall not take any steps, or authorise, ask, suffer or permit or provide information or authorisation to any other person to take any steps, which are intended to, or would or do directly or indirectly, result in a Migration.
3.4.2 Compulsory Migration
Subject to Conditions 3.4.3(Information) and 3.4.4(Contractual Consequences of Migration), Migration of any of the Services or any Line or Connection provided as part of the Services, away from the Supplier, is permitted in circumstances where the Supplier has a direct obligation under Condition 22 or any other Condition of the OFCOM General Conditions, or by injunction, or under the Communications Act 2003, to issue a MAC or otherwise permit or facilitate Migration, and in such case the Supplier will issue such MAC and take any other action which only the Supplier is able to take to facilitate such Migration in compliance with such obligation.
Where the Customer wishes to rely on Condition 3.4.2(Compulsory Migration), the Customer shall provide to the Supplier immediately on request such information as the Supplier may require concerning the circumstances giving rise to and reasons for the proposed Migration, and a fully reasoned justification as to why the Supplier is obliged to provide any MAC code or facilitate a Migration.
3.4.4 Contractual Consequences of Migration
If the Supplier supplies a MAC code or otherwise facilitates a Migration, whether voluntarily, under the Supplier’s obligation under 3.4.2(Compulsory Migration) or otherwise, or a Migration otherwise occurs for any reason (with or without the involvement or approval of the Supplier), then:-
(a) this shall not amount to or effect a termination of this Contract or the On-Going Services (including those of which the Migrated Service was a part), and the Supplier shall be entitled to continue to invoice and be paid the Charges for all Services, including the Migrated Services, and even if those Services have ceased or cannot be provided as a result of such Migration, but the Supplier shall be relieved of its obligation to provide the Migrated Services or any dependent Services; and
(b) the Supplier shall be entitled to terminate, at its option, either this Contract as a whole, or the On-Going Services of which the Migrated Service was a part, and any dependent Services, by notice to the Customer, given at any time (however long) after the date of the Migration, and the Customer shall pay the Early Termination Charge set out in Condition 14.2(Early Termination Charge) in respect of such termination.
4. SET-UP OF ON-GOING SERVICES
The following applies to the initial supply and set-up of the On-Going Services under the Initial Order Form and associated Proposal, and will also apply separately to the supply and set-up of any variations to the Services, under any Future Order Forms and associated Proposals.
All work to set-up the On-Going Services, and associated CPE, will commence as soon reasonably practicable, after the Order Form and associated Proposal has been agreed and a legal contract formed.
The Supplier agrees to use reasonable endeavours to achieve Activation of the On-Going Services or any variation, in accordance with any timescales set out in the Order Form(s) or associated Proposal(s), or otherwise within reasonable timescales notified by the Supplier. However, all such timescales shall be subject to any timescales of any Third Party Service Provider (and so that the Supplier will not be responsible for delays by Third Party Service Providers) and all such timescales are estimates only.
The On-Going Services, and all variations to the On-Going Services, and any associated CPE, will be set-up and installed in accordance with any implementation plan specified in Order Form(s) and Proposal(s) and any standard procedures of the Supplier and any Third Party Service Provider. The Customer shall comply with such procedures of the Supplier or Third Party Service Providers, provide access to the Site and information and assistance promptly as required, and co-operate with the Supplier and any Third Party Service Providers.
4.5 Surveys, Visits and Further Works
The Supplier or any Third Party Service Provider may survey the Site and/or carry out engineering visits to the Site, for the purposes of installation and set-up of any On-Going Service and CPE, and the Customer shall enable this to happen. The Customer shall on request make an appointment with and comply with any appointment made with the Supplier or any Third Party Service Provider for the purposes of such survey or visit. Following any visit or survey, the Supplier or a Third Party Service Provider may specify requirements for further works to be carried out at the Site to set-up or install any On-Going Service or CPE, including as to the routing of cables and wires and the positioning/relocation of outlets, sockets, and other apparatus constituting the CPE, and the Customer agrees to accept and enable such further works. All such surveys, visits and works will be carried out during Business Hours, or the standard working hours of any Third Party Service Provider provided from time to time.
The Customer acknowledges and agrees that during the set-up and installation of any On-Going Services and CPE, or the carrying out any of other work in connection therewith, at any Site or elsewhere, any existing communications services to the Customer may suffer temporary interruption or degradation.
4.7 Delays to Activation
If a site survey and/or engineering visit or work is required, or work needs to be carried out to the Site to set-up and install any On-Going Services and CPE, then Activation may not occur until completion of such survey, visit and work, and any agreed timescales for Activation may be unilaterally varied by the Supplier accordingly.
4.8 First Activation Date
The On-Going Services, and all associated Periodical Charges, will commence on the First Activation Date for the On-Going Services. Any variation to any On-Going Services, and all associated variations to the Periodical Charges, will commence on the First Activation Date for such variations.
5. GENERAL SERVICE TERMS
The Services and Deliverables will comply with the specification set out or referred to in the Order Form(s), associated Proposal(s), and any Service Specific Terms, and in any event be in accordance with the standard published specifications of the Supplier and its Third Party Service Providers. The Supplier does not guarantee that the On-Going Services or CPE will be permanently available or error or interruption free.
5.2 Service Levels
The Supplier will use reasonable endeavours to provide the Services in accordance any service levels communicated to the Customer from time to time in writing, including as to availability, moves, adds, changes, outages and fault response times.
5.3 Provision of Lines
Unless otherwise expressly specified to be provide by the Supplier as part of the Services, the Customer shall procure and maintain all Lines (including PSTN Lines and associated Telephone Numbers) required for the Connections or other Services and/or over or in connection with which any Connections or Services are to be provided, with the characteristics required by the Supplier. The Services are dependent on such Lines, and may be delayed, suspended or disrupted (but the Customer will still be obliged to pay the Charges) if any such Line and Telephone Number is not provided or it is not available for any reason.
Any Connection, Line or other On-Going Service to be provided under the Services will have the characteristics specified in the Proposal(s) and Order Form(s), or if not so specified, will have the characteristics specified by the Third Party Service Provider or the Supplier from time to time. References in this Condition to characteristics include bandwidths, capacity, contention ratios, access times, data transfer limits, traffic prioritisation, and capping and management arrangements. Bandwidth is normally the fastest connection speed the Third Party Service Provider considers will be stable, up to the maximum bandwidth specified for the Service.
5.5 Technical Limits
All Connections, Lines and other On-Going Services will be subject all applicable technical limitations of the technology used, including those specified by any Third Party Service Provider, which may not become apparent until after any Connection, Line or other On-Going Service has been has been installed and working for some time. Technical limitations may include incompatibility between the On-Going Services and any other telecommunications services which the Customer is receiving or proposing to receive, incompatibility with any Customer Systems used, and technical or geographical limitations that inhibit the installation or performance of any Connection or Line. The Supplier shall have the right to decline to provide or to cancel or terminate any On-Going Services or any feature of the On-Going Services, or to change the characteristics of the On-Going Services, without liability to the Customer, where any such technical limitations are identified.
5.6 Telephone Numbers
All Telephone Numbers supplied by the Supplier or any Third Party Service Provider as part of the Services, shall be and remain the property of the Supplier and each Third Party Service Provider, and shall not be transferrable or portable except where provided by the OFCOM General Conditions. The Supplier may make an Additional Charge, to include Third Party Service Provider Charges for any number portability provided. Telephone Numbers a may be changed in accordance with any national or local code changes.
5.7 IP Addresses
All IP addresses supplied by the Supplier or any Third Party Service Provider as part of the Services, shall be and remain the property of the Supplier and each Third Party Service Provider, and shall not be transferrable or portable. The Supplier may, by giving not less than 30 days prior written notice to the Customer at any time during the term of this Contract, change the Customer’s IP addresses, including due to a change in the core network routing.
The Supplier does not guarantee that the Services will prevent viruses or other harmful or malicious software from getting onto the Customer Systems, or prevent attacks or other computer misuse in relation to the Customer Systems. The Customer will be responsible for maintaining its own protections on the Customer Systems against viruses and other malicious software and against attacks and computer misuse.
5.9 Customer Materials and Internet Content
The Supplier shall have no responsibility for the Customer Materials or the content, approval, issue or transmission of any material or content made available on the internet or otherwise which can be accessed using the Services or CPE.
5.10 Technical Support
The Supplier will provide reasonable technical support for installation of CPE, usage and operation of the Services and CPE, and faults suspected or experienced with the Services and CPE, remotely by e-mail or telephone, using such e-mail and telephone contact details as the Supplier may specify. An Additional Charge is payable if the Customer requires or is otherwise provided with support or other Services involving an individual representative of the Supplier attending any Site or any other premises of the Customer or any Customer Client, unless due to a fault with the Services or CPE, calculated in accordance with Condition 7.7. The Customer shall be reasonable in its use of the Supplier’s support service, and shall use reasonable endeavours to investigate and resolve problems and queries itself first. The Customer shall give Supplier a reasonable opportunity to investigate and correct any problems or faults.
5.11 Fault Handling
The Customer shall notify the Supplier promptly of any faults or other problems experienced with any Services. If the Customer reports a fault in the Service or any Service Equipment, the Supplier will use all reasonable endeavours to resolve the fault itself, for its own systems, and with any Third Party Service Provider for any Third Party Service. Where any fault is with a Third Party Service, then the fault will be handled in accordance with the fault handling procedures and standard service levels of each Third Party Service Provider, including as to response times and the hours and days during which any faults will be worked on. The Supplier and any Third Party Service Provider will only be obliged to work on rectifying the fault during their respective normal working hours and days, and the Supplier may make a reasonable charge and may pass on any Third Party Service Provider Charges, if the Customer wishes work to continue outside such normal working hours and days. If the Customer reports a fault and the Supplier or the Third Party Service Provider finds that there is no fault, or that the Customer has caused the fault, the Supplier may make an Additional Charge to the Customer for any work, calculated in accordance with Condition 7.7, and may pass on any resulting Third Party Service Provider Charges.
5.12 General Suspension Right
The Supplier may suspend, interrupt or degrade the provision of any On-Going Services in the following circumstances: (a) if the Supplier is obliged or needs to do so to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority; or (b) in order to carry out any Equipment Management to any CPE, Communications Systems or Supplier Property; or (c) in order to deal with and resolve any actual or suspected security breach, virus, emergency, or attack; or (d) where the Supplier suspects that the On-Going Services may be being used fraudulently or illegally or in other violation of this Contract; or (e) in order to take any action that the Supplier or a Third Party Service Provider reasonably considers necessary as a reasonable and prudent provider of the Services; or (f) if any Third Party Service Provider exercises any right of suspension, interruption, or degradation, it may have against the Supplier at law or under any contract with the Supplier with respect to any Third Party Service forming part of or relevant to the Services. The Supplier must continue to pay the Charges and all other Payments during and with respect to any period of suspension.
5.13 Suspension on Breach
If the Customer breaches or there is any evidence (whether or not amounting to proof) that the Customer may be breaching this Contract, or any Payment is overdue, then the Supplier shall be entitled to suspend the Services or any of them, as determined by the Supplier. The Supplier will give you 7 days prior warning of any proposed suspension. In the case of a breach or suspected breach, the suspension will be of sufficient time to enable the Supplier to investigate the breach or suspected breach, and the Supplier will reinstate the Services when the breach has been remedied to the Supplier’s satisfaction, or the suspected breach has been proven not to have occurred. In the case of an overdue Payment, the Supplier will re-instate the Services if the Payment is made in full in cash or cleared funds. Reinstatement will be in accordance with any timescales of the Supplier or any Third Party Service Provider, and the Supplier may a reasonable Additional Charge for re-connection and may as an Additional Charge re-charge any Third Party Service Provider Charges incurred as a result of any such suspension or subsequent re-instatement. Where the Supplier suspends when it was not entitled under this Condition, then the Supplier will in any case not be liable to the Customer for the first 7 days of any suspension, if the suspension was not arbitrary or capricious. This provision will be without prejudice to the Supplier’s rights to terminate this Contract, including under Condition 13(EARLY TERMINATION), which may still be exercised during or after any period of suspension. The Supplier must continue to pay the Charges and all other Payments during and with respect to any period of suspension.
5.14 Moves of On-Going Services
Where the Customer wishes to move any On-Going Services provided to any Site to an alternative site, the Customer shall not do so without the approval of the Supplier which will not be unreasonably withheld or delayed, but which approval may be made subject to reasonable conditions specified by the Supplier, including appropriate variations to this Contract, Additional Charges for the re-location, and the availability of the On-Going Services at such new site. The Customer agrees that such move may involve the interruption to any On-Going Services, and to pay an Additional Charge for any duplication of the On-Going Services at the new and old sites reasonably required to ensure a smooth transition. If any move involves a merger of two or more Sites, and a reduction in the number of Connections or other On-Going Services required, then the Supplier may make an Early Termination Charge under Condition 14.2(Early Termination Charge) for any Connections or other On-Going Services no longer required by the Customer. On completion of any move the new site shall be considered a Site in substitution for the old.
5.15 Cessation of On-Going Services
Where this Contract expires or terminates, or where any On-Going Services expire or are terminated for any reason, the On-Going Services will actually terminate on the soonest date that the Supplier is able to practically cease the On-Going Services, including with any Third Party Service Provider, which may be after the contractual expiry or termination date, and the Supplier shall continue to pay all Charges until the time of such practical cessation.
6. CPE, SYSTEMS AND SUPPLIER PROPERTY
All CPE, Communications Systems and Supplier Property shall remain the property of the Supplier and each Third Party Service Provider that owns it, at all times. This is not a contract for the sale of any goods.
All CPE and other Supplier Property is provided on a loan or hire basis only, for the duration of this Contract, inclusive in the Charges. There shall be no option to purchase any CPE or Supplier Property. The Customer shall not have and shall not suffer or allow to be created any lien or other interest in the CPE or any other Supplier Property.
6.3 Installation Support
Unless the Supplier is to procure the installation of any CPE or other Supplier Property, the Customer will be responsible for this, and the Supplier shall use its reasonable endeavours to provide a telephone support service to assist the Customer with the installation in accordance with Condition 5.10(Technical Support).
The Supplier and its Third Party Service Providers (as applicable) shall be entitled to do anything constituting Equipment Management in relation to the CPE or other Supplier Property from time to time at their absolute discretion, and the Customer shall procure all necessary access to the CPE or other Supplier Property to enable this promptly on request. The Customer grants an irrevocable licence to the Supplier and its Third Party Service Providers to enter onto Site for the above purposes.
The Customer shall: (a) take reasonable care of all CPE and other Supplier Property, keep it in good condition, protect it from theft, loss or damage; and provide UPS (Uninterruptible Power Supply) and surge protection for all CPE; (b) comply with and carry out all instructions the Supplier may notify to the Customer for use and care of the CPE or other Supplier Property, including reasonable user maintenance procedures; (c) ensure that a suitable environment is provided for the CPE and other Supplier Property in accordance with reasonable requirements of the Supplier and its Third Party Service Providers (as applicable); (d) not allow the CPE and other Supplier Property to be repaired or maintained other than by an authorised representative of the Supplier or its Third Party Service Providers (as applicable); (e) not damage the CPE or other Supplier Property and not to add modify or in any way interfere with the performance of the CPE or other Supplier Property; (f) not sell or attempt to sell the CPE or other Supplier Property; and not remove any identification mark affixed to the CPE or other Supplier Property showing that it is the property of the Supplier or any Third Party Service Provider (as applicable).
Upon termination of this Contract, or any Service, and at any other time on request, the Customer must return the CPE and all other Supplier Property promptly on request by courier at the Supplier’s cost, or alternatively, if requested by the Supplier, permit the Supplier and its Third Party Service Providers to recover and remove the CPE and other Supplier Property from the Site promptly on request.
All CPE and other Supplier Property shall be at the risk of the Customer from the point it is installed at or delivered to or left at any Site, or possession is otherwise given to the Customer or any of its representatives, until the CPE or other Supplier Property is repossessed by the Supplier or its Third Party Service Provider (as applicable). The Customer shall pay to the Supplier the then full new replacement value of any CPE or other Supplier Property which is stolen, lost or damaged howsoever occurring whilst at the risk of the Customer, and the Customer shall indemnify the Supplier from and against any loss, damage, cost (including legal cost), expense or liability suffered or incurred as a result of the theft, loss or damage (except fair wear and tear) to any CPE or other Supplier Property howsoever occurring whilst it is at the risk of the Customer, and in recovering possession of any CPE or other Supplier Property. If any CPE or other Supplier Property is not returned within 14 days of demand, or is stolen, lost or damaged whilst at the risk of the Customer, the Supplier shall be entitled to deem the CPE or other Supplier Property as having been sold to the Customer and the Customer shall pay the full retail price for the CPE or other Supplier Property. Nothing in this Condition will make the Customer liable for any acts or omissions of any representatives of the Supplier or any Third Party Service Provider.
7.1 Agreement to Pay
The Customer shall pay all Charges, VAT and other Payments specified in this Contract. Payment of such Charges, VAT and other Payments, and time for payment, shall be of the essence of this Contract. The Supplier may at any time and from time to time at its sole discretion issue a price list to the Customer to specify and/or confirm the Charges currently applicable to this Contract.
All Charges exclude and are stated exclusive of VAT (if any), which shall be payable in addition by the Customer at the same time as the Charges, and which the Supplier shall and shall be entitled to add to its invoices at the appropriate rate.
7.3 Set-Up Charges
The Customer shall pay the Supplier’s Set-Up Charges, including for the set-up of each On-Going Service and variation to the On-Going Services. The Supplier may invoice for the Set-Up Charges for any On-Going Services or variation to them, on or at any time after the date that the relevant Order Form is signed by the Customer, or if sooner, when the Supplier commences set-up of the On-Going Services or variation. If the Supplier has not charged any Set-Up Charges for the set-up of any On-Going Service or variation to an On-Going Service, then the Supplier may invoice for such Set-Up Charges if this Contract does not continue for the Initial Period for any reason other than due to termination by the Customer under Condition 13.1.
7.4 Periodic Charges
The Customer shall pay all Periodic Charges in accordance with the following terms:-
All Periodic Charges shall commence on the First Activation Date for the On-Going Services, including the Periodic Charges for any On-Going Services that have not yet been Activated. For any variation to the On-Going Services, all associated variations to Periodic Charges shall commence on the First Activation Date for the variation to the On-Going Services. If the Supplier voluntarily does not invoice some of the Periodic Charges for any On-Going Services or variation to them which have not yet been Activated on the First Activation Date, the Customer shall commence paying and the Supplier may commence invoicing those Periodic Charges as each such On-Going Service or variation, as and when it is Activated, and in any case may invoice all Periodic Charges for all On-Going Services and variations from the Full Activation Date (and where that date is a deemed date, whether or not such On-Going Services and variations have been fully Activated).
7.4.2 Quarterly Payment
All Periodic Charges are payable Quarterly in advance (“Quarterly Payment“). If any Periodic Charge is expressed as a monthly amount, or an amount for a period less than a Quarter, then the Quarterly Payment will be the sum of all such Periodic Charges applicable to the Quarter (pro-rated as required). If any Periodic Charge is expressed in relation to a year then the Quarterly Payment will be one quarter of the Periodic Charge.
If the First Activation Date starts part way through a Quarter, then the Quarterly Payment for that Quarter will be a percentage of the Quarterly Payment for the full Quarter, being the percentage which the number of days remaining in the Quarter from and including the First Activation Date is of the total number of days in the Quarter.
The Supplier may send its invoice for the first Quarterly Payment on or at any time after the First Activation Date. The Supplier may send its invoice for each future Quarterly Payment in advance on or at any time after the start of the relevant Quarter.
7.4.5 Application of Variations
Where there is any variation to any Periodic Charge then for the Quarter in which that variation took effect, the amount of the variation will be pro-rated in accordance with Condition 7.4.3 (as if references to the First Activation Date were to the First Activation Date of the variation) and may be invoiced on or at any time after the First Activation Date of the variation.
7.4.6 Final Quarter
Where any On-Going Services to which a Periodical Payment applies terminate, cease or are subject to a Migration, part way through a Quarter, then the whole Quarterly Payment will still be payable for that Quarter, and will not be required to be refunded in whole or in part, but without prejudice to any liability of the Supplier to refund any Quarterly Payment as a consequence of a breach of this Contract by the Supplier.
7.5 Call and Usage Charges
In respect of any Call and Usage Charges, the Supplier may invoice for these at any time after the usage to which it relates took place. The Supplier may at its discretion invoice instead in arrears at the end of a calendar month or Quarter. All Call and Usage Charges shall be calculated using all associated tariff specific terms published by the Supplier and/or any Third Party Service Provider, including as to what is or is not included in any Periodical Charge, and by reference to data recorded or logged by the Supplier and any Third Party Service Provider, and not by reference to any data recorded or logged by the Customer. All Call and Usage Charges shall be calculated using the minimum units and rounding rules applied by the Supplier and/or any Third Party Service Provider from time to time.
7.6 Special Charges
The Supplier may make and the Customer shall pay an Additional Charge for the following: (a) cancellation of or re-instatement of any Connection, Line or other Service; (b) cessation or Migration of any Connection, Line or other Service to or from the Supplier; (c) any variation in relation to a Connection, Line or other Service, including cease and re-provide, moves, adds, re-activation, change of premises, and upgrades; (d) any survey, site visit, or work required at the Site to enable the provision of the Services (including to install any Connection, Line or CPE) or caused by any inaccuracies in the Customer Materials; (e) any work required to repair any faults or damage to any CPE at the Site, where not caused by the Supplier; (f) for abortive and cancelled visits, and any missed appointments, unless due to the Supplier’s fault, including where the Customer fails to meet the appointment, or cancels the appointment, or fails to give access to the Site; (g) for investigation of and rectification of faults reported by the Customer but no fault is actually found, or the fault is found to have been caused by the Customer; (h) for work on installation and faults outside of Business Hours (or of any Third Party Service Provider normal working hours) where requested by the Customer; (i) for any costs and expense incurred by the Supplier in providing number portability, or as a result of misuse of the Services; or (j) for any visit to the Site to support or assistance with the Customer’s use of the Services, CPE and Deliverables; or (k) where the Supplier is subject to a Third Party Service Provider Charge which was not a set-up or periodical charge taken account of in the Periodical Charges or Set-Up Charges.
7.7 Calculation of Charges
Where this Contract does not specify the amount of any Charge, including any Additional Charge, then it will be calculated using the Supplier’s and any Third Party Service Provider’s published charges, rates, and tariffs relevant to the circumstances of the Charge, and in the case of any telephone calls for which the Supplier does not have its own tariff, the same rates and tariffs as the published retail rates and tariffs of the Third Party Service Provider whose call services the Supplier is reselling. If there is no published charge, tariff or rate, then the Charge it will be such amount as is determined by the Supplier, calculated on a time, materials and expenses basis, including labour (charged at the Supplier’s standard daily rate of not less than £500 per day, including travel time), the cost of materials, the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred, and any Third Party Service Provider Charges which the Supplier is obliged to pay or reasonably incurs. If the Supplier is entitled to recharge any Third Party Provider Charge to the Customer, the Supplier may recharge at the published retail rate which the Third Party Service Provider would have charged and not any wholesale rate charged to the Supplier.
7.8 Invoicing Time
Except as otherwise stated, all Charges, together with associated VAT, may be invoiced by the Supplier at the end of the month in which such Charge was incurred or arose, or any Services or Deliverables to which such Charge relates were provided, or any event, circumstance or work to which such Charge relates occurred. Any time specified for the raising of an invoice shall be considered to be the earliest time at which the Supplier may raise an invoice, and the Supplier shall be entitled to raise an invoice for the Charges at any time after that specified time. If the Supplier by mistake or in error issues an invoice which is an undercharge or omits to issue an invoice for any Charges at all, the Supplier may subsequently issue an invoice for the under- or un-invoiced Charges at any time up to 6 years after the date the original invoice was issued or could first have been issued by the Supplier, and no such undercharge or failure to charge, shall constitute a waiver of the Charges.
7.9 Invoicing method
The Supplier may issue an electronic invoice to an email account designated by the Customer, and the Customer shall designate an e-mail account immediately on request. Any e-mail account is stated on any Order Form(s) this may be used for the purpose of invoicing. The Supplier may at its discretion also issue an invoice by post or fax as well or instead. If the Supplier agrees to invoice a company or person other than the Customer, such as an Affiliate, the Customer shall be and remain jointly and severally liable to pay such invoice, this shall be at the discretion of the Supplier, and the Supplier shall be entitled to resume invoicing the Customer any time. If the Customer requests a paper invoice in the Order Form(s) then the Supplier may make an Additional Charge for this.
7.10 Payment of Invoices
Unless otherwise stated, the Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of the date of the invoice as stated on the invoice.
All Payments shall be made in Pounds Sterling (GBP).
7.12 Payment Method
The Customer must pay the Supplier’s invoices and all Payments by DIRECT DEBIT, unless the Supplier otherwise agrees in writing, and the Customer must provide all necessary bank account information to the Supplier, and sign, set up and maintain for as long as any Payments are or may become due under this Contract, all necessary authorisations (including any forms requested by the Supplier), to enable the Supplier to collect Payments by DIRECT DEBIT, and to enable the Supplier to specify the amount of the Payments from time to time. The Supplier may carry out any Payment collection on the last Business Day before the end of the payment period in Condition 7.10(Payment of Invoices), but may also do so sooner at its sole discretion. The Supplier may make an Additional Charge, specified by the Supplier from time to time (of at least £5), per Payment made by the Customer by any other method other than DIRECT DEBIT.
7.13 No Set-Off
The Customer may not make any set-off, withholding, deduction or counter-claim with respect to any Payments under this Contract, and shall pay all Payments in full.
7.14 Consequences of Late or Non Payment
Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to make any Payment to the Supplier on its due date, the Supplier shall have all of the following rights, and the Supplier shall be entitled to exercise any one or more of them at its discretion at any time, and no exercise of any right shall prejudice any other right:-
7.14.1 Charge Interest
The Supplier shall be entitled to charge interest on such Payment from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and compounded every 30 days, until such Payment is made, whether before or after any judgment. Any such interest shall be paid within 14 days of demand.
7.14.2 Reduce Credit Period
If the Customer is late in paying more than three (3) invoices, the Supplier may at any time after, unilaterally reduce the credit period under Condition 7.10(Payment of Invoices) to 14 days for all future invoices. If the Customer is late in paying more than five (5) invoices, the Supplier may at any time after, unilaterally reduce the credit period under Condition 7.10(Payment of Invoices) to 7 days for all future invoices.
7.14.3 Suspend Technical Support
The Supplier may immediately suspend all technical and other support for the On-Going Services, including under Conditions 5.10(Technical Support) and 5.11(Fault Handling), for such period as the Supplier may decide, and during such period the Supplier will not be obliged to rectify faults or outages with respect to the On-Going Services or CPE. The Charges will continue to be payable during such period of suspension.
7.14.4 Suspend Services
The Supplier shall be entitled to suspend all or any of the Services in accordance with Condition 5.13(Suspension on Breach). The Charges will continue to be payable during such period of suspension.
If the Customer fails to pay such overdue Payment within 7 days of notice from the Supplier demanding payment, or the Customer has been late in paying six (6) or more invoices, then this shall be deemed to be a repudiatory breach of this Contract by the Customer, and the Supplier shall be entitled to terminate this Contract by further notice to the Customer. This right shall subsist and continue until such overdue Payment is made, and shall not be prejudiced by any delay in the Supplier exercising it.
7.14.6 Recovery Costs
The Customer shall pay to the Supplier within 7 days of demand all reasonable and proper costs and expenses (including legal costs) incurred by the Supplier in enforcing and recovering any such Payments.
7.15 Acceleration of Payments on Termination
If this Contract is terminated by the Supplier under Conditions 7.14.5 or 13.1, all invoices issued prior to the date of such termination and not yet paid shall become due immediately, and any further invoices issued shall be payable by the end of the Business Day following the day of receipt.
8. SUPPLIER’S GENERAL RIGHTS OBLIGATIONS
8.1 Provide Services
The Supplier shall use reasonable endeavours to provide the Services and associated CPE, and to deliver the Deliverables (if any), to the Customer, as detailed in the Order Form(s) or associated Proposal(s). It is technically impracticable to provide the Services fault free or on an uninterrupted basis and the Supplier does not undertake to do so.
The Supplier shall use reasonable endeavours to meet any dates and times for performance of this Contract stated in the Order Form(s) or associated Proposal(s), but any such dates shall be estimates only and time shall not be of the essence of this Contract.
8.3 Customer Health and Safety Regulations
The Supplier shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Site and that have been communicated to it under Condition 9.5, provided that it shall not be liable under if, as a result of such observation, it is in breach of any of its obligations under this Contract.
8.4 Data Protection
Where the Supplier is processing any personal data on behalf of the Customer as part of the Services, it does so as a data processor under the Data Protection Act 1998, and the Customer is the data controller. The Supplier will carry out such processing in accordance with the reasonable instructions of the Customer, and in particular the Supplier will maintain and comply with reasonably appropriate technical and organisational measures against unauthorised or unlawful processing of that personal data and against accidental loss or destruction of, or damage to that personal data. The Customer is responsible as data controller for ensuring that the Supplier is lawfully able to process the personal data for the Customer.
8.5 Legal Duties
The Supplier shall not be obliged to do or permit anything under this Contract which would or is likely to cause the Supplier to be in breach of the OFCOM General Conditions, or any law or legal duty applicable to the Supplier. The Customer agrees that the Supplier shall be entitled, when required by law, to disclose to government agencies passwords, decryption codes, and details of the Customer’s information processed using the Services, without notice to the Customer. Where the Supplier is subject to any obligations or duties under any law with respect to the usage of the Services by the Customer, including under the Communications Act 2003, and the Digital Economy Act 2010, then nothing in this Contract shall prevent the Supplier from, and the Supplier shall be entitled to do anything necessary to comply with such laws. Where there is any doubt, the Supplier may take such action without liability, until ordered by a court to do otherwise.
The Supplier may sub-contract any or all of its rights and obligations under this Contract.
The Supplier shall be entitled to inspect and monitor from time to time all usage being made of the Services by the Customer, including communications being sent and received and data being hosted and processed using the Services, to verify compliance with this Contract and to perform the Services.
9. CUSTOMER’S OBLIGATIONS
9.1 Customer Manager
The Customer shall appoint a Customer Manager in relation to this Contract, who shall have the authority contractually to bind the Customer on matters relating to this Contract, and who shall attend on reasonable notice meetings with the Supplier to discuss the performance and operation of this Contract. The Customer’s general and technical contacts on the Initial Order Form shall be the initial Customer Managers.
9.2 Co-operation and assistance
The Customer shall co-operate with and assist the Supplier and its Third Party Service Providers in all matters relating to the supply of the Services, Deliverables, and CPE.
The Customer shall provide, in a timely manner such true and complete information as the Supplier may request from time to time to: provide the Services; resolve problems and faults with the Services; monitor and verify compliance with this Contract; and investigate any suspected misuse of the Services.
9.4 Access to Premises
The Customer shall provide to (and procure for) the Supplier, its Third Party Service Providers, and their respective representatives, reasonable access to the Site (and any other intermediate premises over which the Supplier or Third Party Service Provider does not have existing rights) to carry out installation of or other Equipment Management activities in relation to the CPE, to perform this Contract, and to exercise any rights under this Contract. The Customer shall obtain all permissions and consents from third parties necessary to procure such access for the Supplier, its Third Party Service Providers, and their respective representatives.
9.5 Inform of Health and Safety Rules
The Customer shall inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Site.
9.6 Prepare Premises
The Customer shall be responsible (at its own cost) for preparing the Site for any Equipment Management activities and carrying out any other works in accordance with the reasonable requirements of the Supplier and its Third Party Service Providers, including: the taking up or removing of any fitted or fixed floor coverings, ceiling tiles, suspended ceiling and partition covers as the Supplier or any Third Party Service Provider advises are necessary; obtaining all necessary consents; providing a suitable place and conditions for the CPE, complying with the manufacturer’s recommendations, and a continuing power supply and suitable electrical connection points in an accessible place immediately next to the CPE; making good and redecoration after completion of the Equipment Management activities in relation to the CPE and any other works; providing a safe and secure working environment; and providing such access, accommodation, power, assistance and other facilities at the Site as requested by the Supplier or its Third Party Service Providers from time to time for such purposes.
9.7 Transfer Assistance
Unless otherwise agreed in any Order, where any Connection, Line or other Services are being migrated or transferred by the Customer to the Supplier from another provider, then the Customer shall be responsible for obtaining any migration codes and agreements (including migration authorisation codes from existing providers for broadband services) and doing anything else required to enable such migration or transfer.
9.8 Notification of Problems
The Customer shall notify the Supplier of all problems or suspected problems experienced with the Services and CPE, promptly after the Customer becomes aware or ought reasonably to have become aware of the same. The Customer shall notify the Supplier promptly of any suspected misuse or security breaches which come to its attention.
9.9 Customer Systems
Except for the CPE, the Customer is responsible for providing anything else necessary to make use of the On-Going Services and CPE. The Customer shall ensure that all Customer Systems are compatible with the CPE and On-Going Services and in conformity with all relevant United Kingdom standards or requirements. The Customer shall maintain reasonable protections (including organisational and software protections) in the Customer Systems against viruses, spyware, or other malicious or harmful programs, and against malicious attacks and computer misuse in relation to the Customer Systems.
9.10 Third Party Service Provider Requirements
The Customer shall comply at all times with the specified operating procedures and interconnection requirements of the Third Party Service Providers as may be notified to it from time to time.
9.11 Licence of Customer Materials
In relation to all Customer Materials in respect of which Intellectual Property Rights are vested in the Customer, the Customer grants and shall grant to the Supplier and each Third Party Service Provider a licence to do anything with those Customer Materials reasonably required to perform this Contract and provide the Services. In relation to all Customer Materials in respect of which Intellectual Property Rights are vested in the Customer, the Customer shall ensure that it holds and procures the grant to the Supplier and each Third Party Service Provider the necessary licences to enable the Supplier and each Third Party Service Provider to do anything with those Customer Materials reasonably required to perform this Contract and provide the Services, and to enable the upload, download, hosting, storage and other processing of those Customer Materials by the Supplier and each Third Party Service Provider as part of the Services.
9.12 Data Protection
Where the Supplier is processing any personal data on behalf of the Customer the Customer shall obtain all necessary consents under the Data Protection Act 1998 as a data controller to enable such processing.
The Customer shall conduct its operations and use the On-Going Services in a manner that does not interrupt, impair or interfere with the operation of any Communications Systems or the use thereof by any other user of the Communications Systems.
9.14 Acceptable Use Policy
The Customer shall comply with any Acceptable Use Policy, and acknowledges that its capacity, bandwidth and access may be restricted from time to time in accordance with any such policy, and in any event where determined by the Supplier or any Third Party Service Provider, to ensure that all customers have a fair and reasonable share of available bandwidth and capacity.
9.15 Permitted Use
Subject to Condition 9.16(No Misuse), the Services may, and may only be used, by:-
9.15.1 the Customer;
9.15.2 any Affiliate of the Customer who occupies for the time being any specified Site; and
9.15.3 where the Customer is an IT services company, the specified Customer Client in the Order Form, who occupies for the time being a Site,
as end-user for its own internal business purposes (and by its employees for personal domestic use in accordance with its employee e-mail and web usage policies), and may not be resold to any other person, or used to provide the same type of service to any other person.
9.16 No Misuse
The Customer shall be answerable for all use made of the On-Going Services and all Customer Materials processed in connection therewith. The Customer shall not and shall ensure that no other person shall use the On-Going Services for or in connection with: (a) sending, receiving or publishing any indecent, offensive, obscene, defamatory or otherwise unlawful materials; (b) sending or receiving any unsolicited email, advertising or promotional material; (c) violating any law, rule or regulation; (d) the commission of any offence or crime; (e) downloading, sharing, transmitting or publishing content that infringes the rights of others, including without limitation, any Intellectual Property Rights of third parties; (f) any fraud (including using or attempting to use On-Going Services with the intent of avoiding payment by any means or device); (g) any activity which does or is likely to result in the Supplier or any Third Party Service Provider having any liability to a third party, or damage to the reputation of the Supplier or any Third Party Service Provider. This provision is of the essence of this Contract, and a breach of this Condition, however minor, shall be deemed to be a material breach of this Contract.
9.17 Content Monitoring
The Customer acknowledges that the Supplier is not obliged to monitor and shall have no responsibility or liability for the content of any Customer Materials.
The Customer is responsible for management of all passwords issued to it in connection with the Services, and shall be responsible for any use and misuse of such passwords, or any fraud committed using such passwords, unless by the Supplier or its representatives.
9.19 Customer Indemnity For Breach
The Customer shall indemnify the Supplier, on demand, against all liability (including to any Third Party Service Provider), loss and damage suffered or incurred by the Supplier as a direct or indirect result of the Customer’s breach of its obligations under this Contract and for any event of misuse under Condition 9.16(No Misuse) however arising, together with all cost and expenses (including reasonable and proper legal costs) incurred in handling, defending and settling any third party claims in respect of any such liability.
9.20 Affiliates and Customer Clients
Where the Services are to be provided for use or consumption of any Affiliates of the Customer or Customer Client, or the Supplier agrees to invoice some or all of the Charges to any Affiliate or Customer Client, then: this shall not cause a contract to arise between any such Affiliate or Customer Client; his Contract shall considered to remain between the Customer and the Supplier; the Customer shall be and remain liable for performance of the obligations of the Customer under this Contract and payment of all Charges; and all acts and omissions of such Affiliates and Customer Clients shall be deemed to be acts and omissions of the Customer. The Customer shall indemnify the Supplier against any and all liability which the Supplier may have to any Affiliate of the Customer or Customer Client, who is permitted to use the Services under Condition 9.15, however arising (including through breach of this Contract or negligence arising in connection with this Contract), together with all cost and expenses (including reasonable and proper legal costs) incurred in handling, defending and settling any claims in respect of any such liability. Where the Supplier has at the start of this Contract contracted with, or at any time during the Term, contracts with any company that is a subsidiary of the Customer for the provision of any goods or services, the Customer hereby guarantees as a continuing guarantee due and proper payment by each such subsidiary of all charges and other amounts payable under such contracts, and the Customer shall not be released from this guarantee by any variation or termination of any such contracts.
9.21 Consequences of Customer non-performance
If the Customer fails to perform any of its obligations under this Contract, then the Supplier shall not be liable for any consequential delays, interruptions or adverse effects on the Services or CPE, the Customer shall continue to pay all Charges as if such consequence had not occurred, and the Customer shall pay an Additional Charge to cover any additional or wasted, costs, expenses or Third Party Service Provider Charges incurred by the Supplier as a direct or indirect result.
10.INTELLECTUAL PROPERTY RIGHTS
As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Services, Deliverables and CPE shall be owned by the Supplier (or its Third Party Service Providers where provided by them) and no right, licence, or interest is transferred to, shall vest in or is granted to the Customer under this Contract except for the licence in Condition 10.2(Usage Licence).
10.2 Usage Licence
The Supplier licenses the Customer free of additional charge to operate the CPE and use the Services and Deliverables for the purposes of conducting the Customer’s business or official functions and responsibilities, in accordance with the terms of this Contract, for the duration of this Contract. The Customer may not resell the Services, Deliverables or CPE to any third party or permit any third party to use the Services, Deliverables or CPE for their own purposes (except to the extent necessary to deal with the Customer). If this Contract expires or is terminated, this licence will automatically terminate as a whole. If any On-Going Services expire or are terminated then this licence will automatically terminate in respect of those Services and their associated CPE and Deliverables.
11.1 Confidentiality Undertaking
The Customer and Supplier shall each keep in strict confidence all technical or commercial know-how, specifications, inventions, processes and initiatives of the other or their representatives which are of a confidential nature and have been disclosed to them by the other or their representatives, and any other information concerning the other’s businesses, products or services or their representatives’ which they may obtain (“Confidential Materials“). The Charges and terms of this Contract shall be confidential to the Supplier and Confidential Materials of the Supplier.
11.2 Permitted Disclosure
The Customer and Supplier shall restrict disclosure of the Confidential Materials of the other to such of their representatives as need to use the same for the purpose of discharging any obligations under this Contract and exercising any rights under this Contract, or for the general management or enforcement of this Contract, and shall ensure that such representatives are subject to obligations of confidentiality in relation to the Confidential Materials of the other party corresponding to those in this Condition 11(CONFIDENTIALITY).
This Condition 11(CONFIDENTIALITY) shall not apply to any Confidential Materials received by a party which are or fall into the public domain other than through any act or omission of that party or its representatives.
On termination or expiry of this Contract, howsoever occurring, each party shall return all Confidential Materials of the other in physical or printed form and all copies thereof, and shall securely erase from all computer systems, all copies of the Confidential Materials, except as may be reasonably required to keep a record of this Contract for all liability and tax purposes and, subject to continuing to comply with this Condition 11.
12. LIMITATION AND EXCLUSION OF LIABILITY
This Condition 12 sets out limitations and exclusions on the liability (including contractual and non-contractual, in negligence, in tort, case law, and under statute) of the Supplier to the Customer and its Affiliates and Customer Clients (“Relevant Liability“) for, in connection with, or arising out of the following (each a “Liability Event“): any breach of this Contract by the Supplier, including any contractual negligence of the Supplier under this Contract; any non-contractual negligence of the Supplier in connection with or in the course of performing this Contract, and any other breach of a duty of care or any other non-contractual duty or obligation arising in connection with this Contract or the Services; any act or omission of the Supplier in the course of performing or otherwise in connection with this Contract or the Services, including tortious acts and omissions; any breach by the Supplier of any statutory duty owed to the Customer which duty arises or applies as a result of or in connection with this Contract or the Services; any representation or statement made by the Supplier or any of its representatives, under or in connection with this Contract, or which induced the Customer to enter into this Contract; and any act or omission of the Supplier’s representatives, including Third Party Service Providers, in the course of performing or providing or otherwise in connection with this Contract or the Services. The Customer acknowledges that that the limits and exclusions of Relevant Liability in this Contract are reasonable and that the Customer is responsible for insuring where to the extent any liability is excluded by this Condition 12.
12.2 Non-Excluded Loss
Nothing in this Contract limits or excludes the Relevant Liability of the Supplier for: death or personal injury resulting from negligence; fraud or fraudulent misrepresentation by the Supplier; or any Relevant Liability to refund all or any part of the Payments made by the Customer.
12.3 Excluded Loss
Subject to Condition 12.2(Non-Excluded Loss), the Supplier shall not have any Relevant Liability for and the Supplier excludes all Relevant Liability for: (a) business interruption, loss of profits, loss of revenue, loss of business, loss of contract, loss of use, loss of goodwill, loss of anticipated savings, loss of bargain, loss or corruption of data or information, and liability of the Customer to any third party, in each case including any such loss or liability which is direct, special, indirect or consequential ; (b) any loss, liability or damage caused by viruses or other malicious software or by malicious attacks, including any such loss, liability or damage which is direct, special, indirect or consequential; and (c) any special, indirect, or consequential loss, costs, damages, charges or expenses.
12.4 General Liability Cap
Subject to Condition 12.2(Non-Excluded Loss), and except for liability for loss or damage to physical property covered by Condition 12.5(Property Damage Liability Cap), the Supplier’s total Relevant Liability for all Liability Events occurring in any Contract Year in aggregate shall be limited to the total of the Periodic Charges payable with respect to that Contract Year (pro-rated accordingly), or if that figure cannot be ascertained with reasonable certainty , £50,000.
12.5 Property Damage Liability Cap
Subject to Condition 12.2(Non-Excluded Loss), the Supplier’s Relevant Liability for any loss or damage to any physical property caused by the negligence of the Supplier or its employees or sub-contractors shall be limited to £200,000 for each incident (or if it is part of a series of connected incidents, all of those incidents) resulting in such loss or damage.
12.6 Third Party Service Providers
The Customer agrees with the Supplier, and also for the benefit of the Supplier and each Third Party Service Provider, that no Third Party Service Provider shall have any liability directly to the Customer with respect to the Services, and the Customer shall make no claim against the Third Party Service Provider in respect of or arising out of anything done by the Third Party Service Provider in connection with the Services.
12.7 Force Majeure
The Supplier shall have no Relevant Liability to the Customer under this Contract, and shall not be considered to have committed a Liability Event, if the Supplier is prevented from or delayed in performing its obligations under this Contract or providing the Services, or any Services are degraded or interrupted, by any of the following events or circumstances (“Force Majeure Event“): (a) acts of God; (b) war, threat of war, terrorism, hostilities, riot, civil commotion, blockade, and sabotage; (c) the act of any government or competent regulatory authority governing the Supplier, including OFCOM; (d) strikes, lock-outs or other industrial actions of whatever nature (whether involving the workforce of the Supplier or any other person); (e) lightning, fire, storm, flood, earthquake, lack of water arising from weather or environmental problems; (f) shortage of or prevention from obtaining in any way labour, parts, materials, fuel, energy or other supplies; (g) breakdown of plant or machinery, failure of power supply or other utility service, failure of transport network, failure of any third party system on which the Services are dependent; (h) malicious damage; (i) any interruption, termination or failure of any Third Party Service or default of any Third Party Service Provider; (j) any delay or failure by any of its sub-contractors to perform their obligations; and (k) any event or circumstance which is beyond the reasonable control of the Supplier. If a Force Majeure Event means that the Services taken as a whole are materially unavailable or degraded, with a substantial adverse effect on the Customer’s business, for more than seven (7) Business Days then the Customer shall be entitled to terminate this Contract by notice to the Supplier, and such termination shall be effective on such date as the Customer may specify.
13. EARLY TERMINATION
In addition to any termination rights under Condition 3(DURATION), or at law, the parties shall have the following early termination rights:-
13.1 Reciprocal Rights
Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Contract without liability to the other if:-
13.1.1 Material Breach
the other party commits a material breach of any of the terms of this Contract and either: that breach is irremediable; or the other party fails to remedy that breach within 10 days of being notified of the breach; or
an order is made or a resolution is passed for the winding up of the other party; or
an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
a receiver is appointed over any of the other party’s assets or undertaking, or if any other person takes possession of or sells the other party’s assets to recover debts overdue; or
the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(e) Cease Trading
the other party ceases to trade; or
(f) Other Jurisdictions
the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.2 Additional Rights of the Supplier
The Supplier shall have the termination rights in Condition 7.14.5(Termination) if the Customer fails to make any Payment when due.
13.2.2 Third Party Services
If any Services include or are dependent on any Third Party Service, then the Supplier shall be entitled to cancel or terminate those Services, or this Contract as a whole, without liability to the Customer, if that Third Party Service is ceased or terminated by the Third Party Service Provider for any reason.
The Supplier shall be entitled to terminate this Contract by notice to the Partner with immediate effect if any authorisation, licence or other permission for the Supplier to provide the Services is revoked, withdrawn, or not renewed for whatever reason, or if the Supplier is otherwise prohibited by any exercise of any statutory power by OFCOM from providing the Services.
13.3 Termination Date
Except for termination under Condition 3(DURATION), where either party exercises a right of termination under this Contract, then unless a notice period is specified, such termination may be immediate or on such date as the party exercising the right to terminate may decide in its sole discretion.
14. CONSEQUENCES OF EXPIRY AND TERMINATION
On termination of this Contract, all Services shall terminate, and may be ceased by the Supplier. Condition 5.15 shall apply with respect to the cessation of the On-Going Services.
14.2 Early Termination Charge
If any On-Going Service is terminated or otherwise ceases, for any reason or under any right, including as a result of termination of this Contract, and any such termination or cease is not as a result of an Excepted Termination, then the Customer shall pay the Supplier, within 7 days of receipt the Supplier’s invoice for the same, a Charge (an “Early Termination Charge“) equal to 70% of the Periodic Charges which would have been payable under this Contract for the terminated or ceased On-Going Service with respect to the Remaining Period, plus VAT, assuming that the On-Going Service had continued for the Remaining Period and that no variations were made to this Contract with respect to the Remaining Period. For the purposes of this Condition:-
14.2.1 The “Remaining Period” means the period:-
(a) FROM the date of such termination or cessation of such On-Going Service;
(b) TO the sooner of:-
(i) the earliest time such On-Going Service could have been terminated had, at the date of such termination or cessation, the Customer served notice under Condition 3.2.2(Prevention of Automatic Renewal) or (if applicable) Condition 3.3(Rolling Contract – Where Clause 3.2 does not apply ); or
(ii) if the Customer has, at the date of such termination or cessation, already validly served notice under Condition 3.2.2(Prevention of Automatic Renewal) or (if applicable) Condition 3.3(Rolling Contract – Where Clause 3.2 does not apply ), the date on which such On-Going Service would have otherwise terminated in accordance such notice.
14.2.2 An “Excepted Termination” is a termination in accordance with Condition 3.2.2(Prevention of Automatic Renewal) or (if applicable) Condition 3.3(Rolling Contract – Where Clause 3.2 does not apply ), or a valid termination by the Customer under Condition 13.1(Reciprocal Rights), or a termination under Conditions 13.2.2(Third Party Services) or 13.2.3(Authorisations).
14.3 Continuation of terms
Termination of this Contract shall not affect the following Conditions which shall continue in full force and effect without limit of time : 6(CPE, SYSTEMS AND SUPPLIER PROPERTY), 7(CHARGES ), 9.4(Access to Premises), 9.6(Prepare Premises), 9.19(Customer Indemnity), 9.20(Affiliates and Customer Clients), 9.21(Consequences of Customer non-performance), 10(INTELLECTUAL PROPERTY RIGHTS), 11(CONFIDENTIALITY), 12(LIMITATION AND EXCLUSION OF LIABILITY), 14(CONSEQUENCES OF EXPIRY AND TERMINATION), 16(NOTICES), and 17(GENERAL). Termination of this Contract will also not affect any accrued rights or obligations or liability of the parties as at the date of termination or arising as a result of termination or any circumstances giving any right to terminate.
15.1 Right of variation
The Supplier shall be entitled to unilaterally vary this Contract, the Charges, the Services, and all Contract Terms and other terms incorporated into it, in any way it may decide in its sole and absolute discretion, from time to time, subject to the following terms, and subject to Condition 15.2:-
15.1.1 Unless otherwise stated below, the Supplier may exercise such right by sending to the Customer a notice of variation, and setting out the effective date of the proposed variation, which will not be less than 30 days after the date of the Supplier’s notice.
15.1.2 The Supplier will not vary any Charges which are expressly stated in an Order Form to be fixed for a period of time, until expiry of that period of time, but without prejudice to any variations (including indexations) stated in the Order Form to apply during that period of time.
15.1.3 The Supplier may apply a notice period of less than 30 days, if the variation is as a consequence of any variation to any Third Party Services or the contract under which those Third Party Services are provided, or as a result of any variation in law or any regulatory obligations, to coincide with the effective date of that variation.
15.1.4 The Supplier is not obliged to provide notice of any variation which is an improvement or upgrade to the Service, or necessary to maintain the quality and security of the Services.
15.2 OFCOM General Conditions
Where OFCOM General Conditions 9.6 applies to any variation under Condition 15.1, and the variation is likely to be of material detriment to the Customer, then the following terms shall apply except to the extent prohibited by OFCOM General Condition 9.6:-
15.2.1 The Customer may, by notice served on the Supplier within 14 days from receipt of the Supplier’s notice of the variation under Condition 15.1, reject that variation. The Customer may only reject a variation if the variation is likely to be of material detriment to the Customer, and the Customer shall supply a reasoned explanation of this with its notice of rejection. The Customer will be deemed to have accepted a variation if it does not give notice rejecting the variation within the time period in this Condition 15.2.1.
15.2.2 If the Customer validly rejects any variation, then the Supplier shall be entitled, by further notice to the Customer within 14 days following communication of the rejection, to either: withdraw the variation; or terminate this Contract; or elect to proceed with the variation in any event. If the Supplier fail to give notice under this Condition 15.2.2 within the above time period, then the Supplier will be deemed to have elected to withdraw the variation (but shall have the right to propose it again at any time).
15.2.3 If the Supplier gives notice to terminate this Contract under Condition 15.2.2 then such termination will be effective 30 days following service of its notice of termination. Until termination the variation will take effect, but only if it is required to comply with any variation imposed by a Third Party Service Provider or to comply with any variation in any legal obligations applicable to the Supplier.
15.2.4 If the Supplier elects to proceed with the variation under Condition 15.2.2, then the Customer may terminate this Contract, and such termination will be effective 30 days following service of its notice of termination. If the Customer does not serve such notice of termination within 7 days from the Supplier’s notice under Condition 15.2.2 it will be deemed to have accepted the variation. Until termination the variation will take effect, but only if it is required to comply with any variation imposed by a Third Party Service Provider or to comply with any variation in any legal obligations applicable to the Supplier.
The following terms apply to all notices served under this Contract:-
Notices shall be in writing.
16.2 Method of Sending and Deemed Receipt
Notices shall be served by any one or more of the following methods: personal delivery, fax. email, pre-paid first-class post, or pre-paid recorded delivery.
Notices shall be sent to the postal address, fax number, or email address, of the other party specified in this Contract or on any website or e-mail of the other party. A party may at any time unilaterally vary its postal address, fax number, or e-mail address for notices by notice to the other party under this Condition 16(NOTICES). Alternatively, or in addition, a notice may be sent by post to the registered office of or last known principal place of business of the other party.
16.4 Deemed Receipt and Evidence
A notice is deemed to have been served and received as follows: if delivered personally, at the time of delivery or attempted delivery; in the case of fax, at the time of successful completion of transmission to the recipient’s fax machine; in the case of e-mail, at the time of successful completion of delivery to the mail server of the intended recipient, even if the recipient does not subsequently access their mailbox; in the case of first class post and signed-for or recorded delivery, on the second day after the day of posting. If any deemed time of service or receipt above is not within Business Hours, then the notice shall be deemed to be received on the next Business Day. If any deemed day of receipt would not be a Business Day then the notice shall be deemed to be received on the next Business Day.
If the Supplier sends any invoice using any method and address for notices, then such invoice shall be deemed to be received in the same way as any notice sent using such method and address.
The Customer shall not assign, declare a trust over, or grant any security interest over, this Contract or any of its rights or obligations under this Contract, or any document referred to in it, without the prior written consent of the Supplier.
17.2 Third Party Rights
Except for any benefits conferred on any Third Party Service Provider in this Contract, the parties agree that no third party (including Affiliates and Customer Clients) shall be given any right under or be entitled to enforce any term of this Contract, and The Contracts (Rights of Third Parties) Act 1999 shall not apply. Where any third party has any right under this Contract, the Supplier may at any time unilaterally vary, amend or withdraw that right by notice to the Customer.
17.3 Agreement to Variations
Any unilateral or other rights of variation, and any automatic variations, provided for under this Contract, including under Condition 15, may be exercised without requiring the agreement of the other party, and unless otherwise stated may be exercised by notice to the other party. In all other cases, no variation to the terms of this Contract shall be valid unless agreed to in writing by a duly authorised representative of the Supplier.
If any of these Conditions or any other term, condition or provision of this Contract is determined by a court or competent authority to be invalid, unlawful, unenforceable to any extent, then such term, condition or provision shall to that extent be deemed to be severed from this Contract and the remaining terms, conditions or provisions of this Contract will continue to be valid to the fullest extent permitted by law.
A waiver of any right, Charge, breach or obligation under this Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure of the Supplier to exercise any right or remedy under this Contract, to invoice or claim any Charges under this Contract, or to enforce any term of this Contract, and no delay of the Supplier in doing any of the same, shall constitute a waiver of such right, remedy, term or Charge.
17.6 Rights Cumulative
Unless specifically provided otherwise, all rights and remedies provided under or arising under or in connection with this Contract are cumulative and are in addition to and do not exclude any other rights or remedies provided by this Contract and any rights or remedies provided by law.
17.7 Governing Law and Jurisdiction
This Contract and any dispute or claim arising out of or in connection with it or its subject matter, including non-contractual disputes, shall be governed by, and construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Contract or its subject matter, including non-contractual disputes.
In this Contract and the Contract Documents: where the words “include(s)“, “including” or “in particular” are used, they are deemed to have the words “without limitation” following them; where the context permits, the words “other” and “otherwise” are illustrative and shall not limit the sense of the words preceding them; references to a “Condition” is to a condition of this Conditions, and references to a “Schedule” are to any written schedule of this Contract or the Order Form(s) or associated Proposal(s); reference to a “month” hall be to a calendar month, unless the month is expressed to start on a date other than the 1st of a calendar month, in which case a month shall be period running from (and including ) that date to (but excluding) the same date in the next calendar month (or if that date does not exist, to (and including) the last day of that next calendar month); reference to “termination” includes expiry, termination under an express term of this Contract, rescission, and discharge as a result of a repudiatory breach, wrongful termination, or frustration; reference to any statute or other legislation shall be to that legislation and all secondary legislation made under it from time to time, as amended, replaced or re-enacted from time to time; headings are for convenience only and shall be disregarded when interpreting this Contract; a reference to a “person” includes any company, association, partnership, individual or other legal entity; a reference to the singular shall include the plural and vice versa; the expressions “holding company” and “subsidiary” have the meanings ascribed thereto by section 1159 of the Companies Act 2006; “writing” means in any eye-readable form, including printed and digital form (such as e-mails or web pages), “representative” means a person’s officers, employees, agents, sub-contractors and suppliers, and each of their representatives; and a reference to “change“, “vary” or “variation” (and cognate terms) in relation to any contract, legal obligations, services or charges, includes the deletion, addition, withdrawal, alteration, change, increase, upgrade or reduction of or to any terms of that contract, or those legal obligations, services or charges.