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MASTER TELEPHONY TERMS v1.1 07.10.16

AGREED TERMS

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Acceptable Use Policy: the acceptable use policy agreed between the Customer and the Supplier or, if none is agreed, the Supplier’s acceptable use policy available on the Supplier’s website at www.acs365.co.uk/aup and as amended from time to time.

Agreement: these Master Telephony Terms, together with the relevant Order Form to which they are attached, together with any relevant Service Specifications or schedules.

Airtime: means the provision of a pre-pay or post-pay voice, data or broadband connection in relation to a mobile public telecommunications system operated by a Mobile Network Operator.

Assets: means any Software or Intellectual Property provided by the Customer for use by the Supplier for the delivery of Services to the Customer.

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

Charges: the charges payable to the Supplier, as described in the relevant Order Form.

Commencement Date: the date this agreement is executed by the parties.

Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party's Representatives in connection with this agreement which information is either labelled as such or else which should reasonably to be considered as confidential because of its nature and the manner of its disclosure. The term "Confidential Information" does not include any information that: is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause); or was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party; or was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or was known to the receiving party before the information was disclosed to it by the disclosing party; or the parties agree in writing is not confidential or may be disclosed; or is developed by or for the receiving party independently of the information disclosed by the disclosing party.

Customer: the customer so-named on the relevant Order Form.

Customer Cause: any of the following causes; (a) any improper use, misuse or unauthorised alteration of the Services by the Customer; any use of the Services by the Customer in a manner inconsistent with the then-current Service Specification; (b) the use by the Customer of any hardware or software not provided by the Supplier or approved by the Supplier in the Services Specification for use by the Customer in connection with the Services.

Customer Data: any information which is provided by Customer to the Supplier as part of Customer's use of the Service, including any information derived from such information.

Device: connected devices (including mobile handsets), SIM Cards, accessories and any such other goods as may be offered by ACS or its suppliers from time to time.

Direct Third Party Services: the services of third parties and/or software programs proprietary to third parties, which are to be provided to the Customer without modification.

Due Date: the date for payment as specified in the Supplier’s invoice, or if date is unspecified, 30 days after the invoice date.

Equipment: the Rented Equipment and Sold Equipment.

Error: a failure of the Service in any material respect to conform with the Service Specification.

Extended Term: has the meaning given in Clause 16.1.

Facility: any building belonging to or occupied by the Supplier for the provision of the relevant Services.

Hosted Telephony: means a centrally hosted service for the provision of voice, video, instant messaging and other multi-media communications over IP networks

Indirect Third Party Services: the services of third parties, which are to be provided to the Customer as part of the Services.

Initial Term: the period for the supply of the Services from the Service Commencement Date or, if no period is specified, a period of 3 calendar years.

Intellectual Property: any and all intellectual property rights of any nature anywhere in the world, whether registered, registrable or otherwise, including patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the "look and feel" of any websites.

Landline: the supply of voice and/or data telecommunications services via a fixed line or a leased line as set out in the relevant Order Form.

MSA: this Master Services Agreement.

Mobile Network Operator: a party that operates a mobile telecommunications network to provide Airtime.

Mobile Voice Recording: the recording of mobile telephone calls.

Mobile Voice Recording Application: the software application used by the Supplier to provide Mobile Voice Recording;

Normal Business Hours: 8.30 am to 5.30 pm local UK time on a Business Day.

Order Form: an order placed by the Customer for relevant Services, which shall be submitted on the Supplier’s standard form unless otherwise agreed by the Supplier and which shall be subject to this agreement;

Permitted Purpose: the purpose of exercising or performing a party’s rights and obligations under this agreement.

Rented Equipment: any apparatus or equipment as specified in the relevant Order Form to be loaned to the Customer by the Supplier or any third party on behalf of the Supplier to enable the provision of Services;

Representatives: a party’s employees, officers, representatives, advisers or subcontractors.

Service Commencement Date: means the date specified in the relevant Order Form from which the Supplier is to provide the Services or the actual date from which the Supplier provides the Services, whichever is sooner.

Service Credit: means any credits payable to the Customer in accordance with the Service Level Agreement.

Service Level Agreement: the service level arrangements agreed in writing in respect of Services.

Services: the provision of Landlines, Mobile Devices and Airtime and Hosted Telephony as specified in a relevant Order Form, together with such other services as are agreed between the parties from time to time. 

Software: means any software used by Supplier to provide the Service to the Customer whether owned by a third party (Third-Party Software), by the Customer (Customer Software) or by the Supplier (Supplier Software).

Service Specification: the description of the Services.

Sold Equipment: any apparatus or equipment as specified in the relevant Order Form to be sold to the Customer by the Supplier or any third party on behalf of the Supplier.

Step-In Rights: the ability for the Customer to step-into a direct relationship with the third party supplier of Indirect Third Party Services in place of the Supplier.

Supplier: ACS Systems UK Limited with registered number 02988060 and registered office at ACS House Oxwich Close, Brackmills, Northampton, Northamptonshire, NN4 7BH. 

Telco: a third party provider of telecommunications or communications services (whether land or mobile), hosted telephony or other services as appropriate.

Term: the term of this agreement being the Initial Term and/or the relevant Extended Term, as appropriate.

Third Party: any third party provider for any Service including that stated on the relevant Order Form.

TUPE: the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended from time to time.

1.1  Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.2 A person includes a corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time

1.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.8 A reference to writing or written includes faxes but not e-mail.

1.9 Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.

1.10 References to clauses and schedules are to the clauses and schedules of this agreement. References to paragraphs are to paragraphs of the relevant schedule.

1.11 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors or permitted assigns.

 

2. Provision of services

2.1 The Supplier will provide the Services in accordance with the Services Specification and the Service Level Agreement as from the Service Commencement Date until expiry or termination of this agreement for any reason.

2.2 The Service Level Agreement for any particular Service shall apply with effect from the start of the first complete month occurring at least 30 days after the Commencement Date.

2.3 The Customer shall use the Services in accordance with the Acceptable Use Policy, as varied from time to time and notified to the Customer.   Without prejudice to the foregoing, the Customer shall not use the Services or store, distribute or transmit any material through any part of the Services that:

2.3.1  is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;

2.3.2 facilitates illegal activity;

2.3.3 depicts sexually explicit images;

2.3.4 promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

2.3.5 constitutes a violation or infringement of the rights of any person, firm or company (including, without limitation rights of copyright and confidentiality).

2.4 The Customer shall indemnify and hold harmless from any losses, costs and expenses suffered or incurred as a result of the Customer’s breach of clause 2.3.

2.5 The Customer shall not provide the Services to third parties without the prior written consent of the Supplier.

2.6 The Supplier shall procure the provision of the Direct Third Party Services to the Customer under the standard terms provided by the relevant third parties, copies of which shall be annexed to this agreement or sent separately to the Customer by the third party and/or presented to the Customer’s IT administrator electronically upon first log-in and the Customer agrees to be bound by such terms. The Customer acknowledges that it will have a direct relationship with those third parties and that, while the Supplier may provide the Services in relation to or supplemental to such Direct Third Party Services, if there is any inconsistency between the terms of this Agreement and the third party’s terms, the latter will prevail.

2.7 The Customer acknowledges that the Supplier shall provide or resell various third party services to the Customer as part of the Services under this Agreement. The Supplier shall use reasonable endeavours to obtain the Indirect Third Party Services with Step-In Rights.

2.8 The Supplier reserves the right to:

2.8.1 modify the Supplier's IT system, its network, system configurations or routing configuration; or

2.8.2 modify or replace any hardware or software in its network or in equipment used to deliver any Service over its network,

provided that this has no adverse effect on the Supplier's obligations under this agreement and its provision of the Services or the Service Level Agreement. If such changes will have an adverse effect, the Supplier shall notify the Customer and the parties shall follow the change control procedure in clause 11.

 

3. Rent and Sale of Equipment

3.1 The Supplier's standard terms of rent in force from time to time shall apply to all Rented Equipment and the Supplier's standard terms of sale in force from time to time shall apply to all Sold Equipment under this agreement. The terms of rent and sale that apply at the Commencement Date are annexed to this agreement or set out at www.acs365.co.uk/salerentterms. If there is any inconsistency between those terms of rent or sale (as appropriate in the circumstances) and the terms of this agreement, the latter shall prevail.

 

4. Landlines

4.1 This clause 4 only applies if the Customer orders Landlines as part of the Services.

4.2 The Customer must pay rental and installation charges (if applicable) from the Commencement Date for the Landlines, together with such other fees and charges as are set out in the relevant Order Form. 

4.3 The provision of the Landline(s) may require the pre-ordering of equipment and/or the installation or reprogramming of equipment which will either be Rented Equipment or Sold Equipment.  The Supplier will charge the Customer for all costs incurred in this respect.

4.4 The Supplier may invoice the Customer at any time although it is common practice to provide an invoice shortly after commencing the Services and monthly thereafter in relation to the Services (although the Supplier may send the Customer additional invoices during the Term as applicable).  Where possible, The Supplier will include all accrued charges on the next invoice, and in any event as soon as possible after those charges have been incurred.

4.5 The Customer must pay all invoices in relation to the Services in accordance with the provisions of clause 4.4. 

4.6 The Telco's standard terms and conditions of business relate to Landline rental and ancillary services and the manner of provision of the Supplier’s Services are subject to those terms and conditions in force from time to time. In particular:

4.6.1 if the Landline service is interrupted the Supplier will contact the Telco to request its restoration as quickly as possible;

4.6.2 occasionally, at the request of the Telco, the Supplier may have to change the code or phone number or the technical specification of the Landlines for operational reasons or interrupt the service on the Landlines for operational reasons or because of an emergency or give instructions necessary for health or safety reasons or because of the quality of the telephony services;

4.6.3 the Customer has no right to sell or to agree to transfer the telephone number(s) provided to the Customer for use with the Services and the Customer must not attempt to do so; and

4.6.4 the Customer must not allow the advertisement of any telephone number(s) used for the Services in or on a public telephone box without the Supplier’s prior written consent.

4.7 The Telco may add the Customer’s name, address and the telephone number(s) for the Landlines in a telephone directory and make the Customer’s telephone number(s) available from directory enquiries services. Notwithstanding the foregoing, the Customer may make a request [in writing] for the Supplier to notify the Telco that (i) the Customer does not wish to be included in the directory; or (ii) that it wishes to have a special entry in the directory in which case the Customer will pay such additional charges as are applicable.

4.8 Both the Supplier and the Telco may use the information the Supplier has about the Customer and the Customer’s use of the Services for marketing purposes unless the Customer informs the Supplier not to make such usage. 

4.9 Both The Supplier and the Telco will process the Customer’s billing data and information about the Customer’s use of the Lines for the purposes of providing the Landlines and for invoicing the Customer for the same.

4.10 The Supplier cannot guarantee that the telecommunications network and ancillary services will never be faulty and the Customer acknowledges to the Supplier that the Customer is subject to the terms and conditions of the Telco in relation to the provision of those telephone services.

4.11 The Customer must notify the Supplier in the event of any faults in relation to the Landline and the Supplier will notify the relevant Telco and monitor the progress of the Telco in rectifying the fault.  The Supplier will request the Telco to work on any fault that the Customer reports to the Supplier and that work will be subject to the repair service which the Telco agrees to provide to the Customer from time to time and the charges levied by the Telco from time to time.

4.12 If the Customer notifies the Supplier that there is a fault in relation to the Landline and either the Supplier, or the Telco, finds that either there is no fault or that someone at the Customer premises has caused the fault, the Supplier may make a reasonable charge to the Customer for any work which the Supplier and/or the Telco has performed to try to identify and remedy the fault.

4.13 The Supplier shall not be liable for any interruptions to the Services or outages arising directly or indirectly from:-

4.13.1 interruptions to the flow of data to or from the internet;

4.13.2 any failure in the IP or telecommunications network;

4.13.3 changes, updates or repairs to the network or software which it uses as a platform to provide the Services subject to the Supplier using reasonable endeavours to minimise the interruptions/outages that may be caused by such change;

4.13.4 the effects of the failure or interruption of services provided by third parties;

4.13.5 any actions or omissions of Customer (including, without limitation, breach of Customer's obligations set out in the Agreement) or any third parties;

4.13.6 problems with Customer’s equipment and/or third party equipment; or

4.13.7 interruptions to the Services requested by the Customer.

4.14 The Customer acknowledges that Landlines are provided via third parties and the nature of the service available via any Landline is subject to a number of factors. For example, with contended services such as ADSL, resources are shared between many users and the Telco manages traffic during busy periods to ensure all users have fair access to resources. The Telco may require the Customer not to make unreasonable demands on its network and, if the Customer is found, in the Telco’s reasonable discretion, to be making excessive use of the services via a Landline, the Telco may without any liability to the Customer restrict or suspend the services.

4.15 The Customer acknowledges that neither the Supplier nor the Telco are able to exercise control over the material sent via the Landlines and that the Supplier and the Telco exclude liability of any kind for the reception by the Customer of viruses, offensive, threatening or obscene material.

4.16 The Landlines may be used by the Customer to link into other networks worldwide, and the Customer agrees to conform to the acceptable use policies of such networks.

4.17 The limit in clause 14.5.2 shall be adjusted in respect of Lines as follows:  £10,000 for any one instance or £25,000 for a series of incidents arising from a common cause in any twelve month period.

 

5. Mobile Devices And Airtime

5.1 This clause 5 only applies if the Customer orders Mobile Devices and Airtime as part of the Services.

5.2 The Customer acknowledges that Airtime is provided directly by a Mobile Network Operator and the Customer will have a direct relationship as a Direct Third Party. Accordingly, the Customer must accept any relevant terms and conditions of service from such Mobile Network Operator.

5.3 The Customer shall consume Airtime as an end-user customer only and not act as distributor in respect of Airtime.

5.4 ACS shall provide reasonable assistance to the Customer to obtain updates issued by a Mobile Network Operator of any software or hardware comprised in the Devices.

5.5 The Customer must not unblock any blocked device or knowingly connect Devices which have been blocked.

5.6 ACS sells the Devices with the benefit of the manufacturer's warranty (if any) subject to the terms and conditions of such warranty and ACS shall have no further liability to the Customer.

5.7 Any manufacturer’s warranty does not apply:

5.7.1 in respect of any defect in the Devices arising from any drawing, design or specification supplied by the Customer;

5.7.2 in respect of any defect arising from fair wear and tear, wilful damage, negligence (including improper storage), improper installation or maintenance, abnormal working conditions, failure to follow ACS’s or its supplier’s instructions (whether oral or in writing), misuse or alteration or repair of the Devices without the approval of ACS or its supplier; and

5.7.3 in respect of any matter regarded as a fault due to a modification, alteration, or replacement required by a change in the requirements of any governmental or regulatory society, institute, authority or other body.

5.8 If the fault arises within 28 days of the date of delivery of the faulty Devices (the "Warranty Period") ACS shall procure a replacement or a repair free of charge of the Devices (or the part in question) which do not meet the warranty.

5.9 ACS shall refund to the Customer the price of the Goods (or a proportionate part of the price) where ACS receives a refund from its supplier or the manufacturer of the price but otherwise ACS shall have no further liability to refund the Customer.

5.10 For any Devices for which the fault arises after expiry of the Warranty Period the Customer shall be responsible for the cost of carriage and insurance in respect of all Devices returned to ACS for repair or replacement. In the case of valid warranty claims ACS shall refund any such reasonable costs.

5.11 ACS reserves the right to levy a surcharge in the event of returned Devices being found not to be defective.

5.12 ACS will conduct a service review and support call ("Support Call") with the Customer on a quarterly basis (or at such other intervals as may be agreed). ACS may provide its suppliers on a quarterly basis with a report detailing the outcome of the Support Calls, any Customer feedback and any remedial plans agreed with the Customer in relation to the feedback.

5.13 ACS reserves the right to charge the Customer in full for any losses, clawbacks, refunds, costs, losses or expenses ACS incurs from its suppliers in the following circumstances:

5.13.1 where a Device is subsequently disconnected as a result of any failure by the Customer to comply with its obligations or to provide appropriate documentation or identification;

5.13.2 where a Device is subsequently disconnected by the Mobile Network Operator for any reason;

5.13.3 where the connection of the Product has been identified by ACS, its suppliers or a Mobile Network Operator as fraudulent;

5.13.4 where any payment due has not been received by a Mobile Network Operator pursuant to an agreement between a Customer and a Mobile Network Operator;

5.13.5 where the Mobile Network Operator applies a clawback in relation to a Device;

5.13.6 where a Customer downgrades to a lower tariff plan or tariff structure during any minimum term of a contract;

5.13.7 where disconnection takes place within the minimum term of any Airtime contract; or

5.13.8 where the connection or connections are being used for any "Premicell", "Fixed Cellular Terminal" or "GSM Gateway" activity (as those terms as commonly understood in the mobile industry) by a Customer.

 

6. Hosted Telephony

6.1 This clause 5 only applies if the Customer orders Hosted Telephony as part of the Services.

6.2 The Supplier shall respond to any reported fault with the Hosted Telephony as soon as reasonably practicable during the Supplier’s normal working hours and will use all reasonable endeavours to correct any fault within the Supplier’s control.

6.3 The Supplier will use all reasonable endeavours to ensure the security of the Hosted Telephony but the Customer should be aware that there is always a risk of security being breached for reasons beyond the Supplier’s control, where for instance the Service is provided through a third party network.

6.4 The Supplier reserves the right to upgrade any Hosted Telephony delivery platform in order to provide new features and services, to manage obsolescence or for any other reason at any time. In such cases the Supplier reserves the right to migrate the provision of Hosted Telephony to the new platform providing an equivalent service, and will use reasonable endeavours to give Customer at least 15 days’ notice of such change.

6.5 Where the Hosted Telephony involves integration or involvement with any service provided by a third-party vendor at the Customer's request, the Supplier will use reasonable endeavours to accommodate the integration or involvement of the third-party service without any responsibility or liability whatsoever for; (i) the actions or non-actions of the third-party vendor; or (ii) the consequences of such integration or involvement with such third party service.

6.6 The Customer shall notify the Supplier in writing of any special or bespoke requests in regards to changes/additions to the Hosted Telephony and the Supplier will use reasonable endeavours to fulfil the same subject to agreement of additional cots by the Customer. The Supplier will not be responsible or liable for any resulting consequence of such request, such request and resultant consequence being at the additional full expense of the Customer, the Customer indemnifying the Supplier in full for all resulting loss, damages, costs and expenses incurred by the Supplier or any affected third party.

6.7 Where access to the Hosted Telephony is facilitated through BT number porting, the Customer authorises the Supplier to have the numbers from the BT lines listed in the relevant Order Form routed via the Supplier (or its appointed Third Party) instead of BT and to forward appropriate details of the Customer’s porting application for the Hosted Telephony to the Supplier. The Customer will receive advance notification of the change of service from BT to the Supplier. The Supplier’s ability to provide Hosted Telephony is subject to BT porting the numbers.

6.8 In the case of analogue lines being utilised for facsimile machines, the standard service is not compatible, and an alternative e-fax service will be offered for numbers that are required to be ported to the Supplier. This may result in loss of service for a period of up to 15 days.

6.9 Where the Customer is provided with a telephone number (including a code) as part of the Hosted Telephony, then that code and number belongs to the Supplier and the Customer will have no right to keep that number nor to sell, dispose or transfer that number at any time. The Supplier will use its reasonable efforts to ensure that the Customer is able to keep the number during the period of this Agreement but the Supplier reserves the right to change the telephone number on reasonable notice at its sole discretion.

6.10 The Customer shall pay to the Supplier an administration fee per number ported as notified by the Supplier.

6.11 If the Hosted Telephony is to be used to carry alarm signals, then the Supplier will not accept responsibility for lack of service or failure to deliver an alarm signal due to a) the network going down; b) suspension of the Customer’s account or c) reasons outside the Supplier’s reasonable control including but not limited to any technical failure of the network; d) because the network is being tested, modified or maintained or if access to the network is denied.

6.12 The Supplier will have the right to recover all reasonable costs incurred in investigating or remedying any fault with the Service where it is caused by the Customer’s negligence or default or by the customer failing to follow instructions from the Supplier or by the Customer equipment or where the fault does not lie with the Supplier or any Equipment.

6.13 This clause sets out the Supplier’s total liability to the Customer if the Hosted Telephony is not available for a continuous period of 12 hours or more in any one day and that unavailability is attributable entirely due to the fault of the Supplier. In such an event the Supplier’s total liability will be limited to the sum of 5% of the charges incurred in the average month for the previous quarter. Such liability will be paid as a credit against the next invoice.

6.14 The Supplier’s aggregate liability to the Customer under or in connection with the Hosted Telephony (whether in contract, tort or otherwise including any liability in negligence) in respect of all causes of action arising in a calendar year will not exceed 60% of the total charges paid or payable by the Customer for the Hosted Telephony in such calendar year.

6.15 The Mobile Voice Recording Service will be made available via the Mobile Voice Recording Application which the Customer must activate on their handset in accordance with the instructions supplied by the Supplier.

6.16 Use of the Mobile Voice Recording service requires the Customer’s mobile handset to make calls to access the recording service. These calls may be chargeable to the Customer by their mobile service provider.

6.17 The Hosted Telephony service allows calls to the UK emergency services (999 or 112). The Customer acknowledges that calls to the emergency services will not be available if there is a power cut or a broadband connection failure.

6.18 The Virtual Contact Centre (VCC) service does not support calls to the emergency services (999 or 112) from within the application. A VCC user may however make calls to the emergency services by picking up the handset and dialling (x) 999 where x is their outside access digit.

 

7. Data protection

7.1 With respect to the parties' rights and obligations under this agreement, the parties agree that the Customer is the “Data Controller” and that the Supplier is the “Data Processor” as those terms are defined under the relevant data protection legislation.

7.2 The Supplier shall:

7.2.1 process the Customer Data only on behalf of the Customer, only for the purposes of performing this agreement and only in accordance with instructions contained in this agreement;

7.2.2 not otherwise modify, amend or alter the contents of the Customer Data or disclose or permit the disclosure of any of the Customer Data to any third party unless specifically authorised in writing by the Customer;

7.2.3 at all times comply with the provisions of the Seventh Data Protection Principle set out in Schedule 1 of the Data Protection Act 1998 and, in so doing, provide a written description of the technical and organisational methods employed by the Supplier for processing Customer Data (within the timescales required by the Customer) and implement appropriate technical and organisational measures to protect the Customer Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;

7.2.4 take reasonable steps to ensure the reliability of any of the Supplier's Personnel who have access to the Customer Data;

7.2.5 obtain prior written consent from the Customer before transferring the Customer Data to any sub-contractors in connection with the provision of the Services;

7.2.6 ensure that only those of the Supplier's personnel who need to have access to the Customer Data are granted access to such data and only for the purposes of the performance of this agreement and all of the Supplier's personnel required to access the Customer Data are informed of the confidential nature of the Customer Data and comply with the obligations set out in this clause 4;

7.2.7 not publish, disclose or divulge any of the Customer Data to any third party (including for the avoidance of doubt the data subject itself) unless directed to do so in writing by the Customer;

7.2.8 notify the Customer (within five Working Days) if it receives:

    (a) a request from a data subject to have access to that person's personal data; or

    (b) a complaint or request relating to the Customer's obligations under relevant data protection legislation; or

    (c) any other communication relating directly or indirectly to the processing of any Customer Data in connection with this agreement;

7.2.9  provide the Customer with full co-operation and assistance in relation to any complaint or request made in respect of any Customer Data, including by:

    (a) providing the Customer with full details of the complaint or request;

    (b)  complying with a data access request within the relevant timescales set out in relevant data protection legislation but strictly in accordance with the Customer's instructions;

    (c) providing the Customer with any Customer Data it holds in relation to a data subject making a complaint or request within the timescales required by the Customer; and

    (d) providing the Customer with any information requested by the Customer;

7.2.10 permit the Customer or its external advisers (subject to reasonable and appropriate confidentiality undertakings) to inspect and audit the Supplier's data processing activities and those of its agents, subsidiaries and sub-contractors and comply with all reasonable requests or directions by the Customer to enable the Customer to verify and procure that the Supplier is in full compliance with its obligations under this agreement; and

7.2.11 not transfer Customer Data outside the European Economic Area without the prior written consent of the Customer and, where the Customer consents to such transfer, to comply with:

    (a) the obligations of a Data Controller under the Eighth Data Protection Principle set out in Schedule 1 of the Data Protection Act 1998 by providing an adequate level of protection to any Customer Data that is transferred; and

    (b) any reasonable instructions notified to it by the Customer.

7.3 The Customer acknowledges that the Supplier is reliant on the Customer alone for direction as to the extent the Supplier is entitled to use and process the Customer Data. Consequently, the Supplier shall be entitled to relief from liability in circumstances where a Data Subject makes a claim or complaint with regards to the Supplier's actions to the extent that such actions directly result from instructions received from the Customer.

7.4 The parties shall, and the Supplier shall procure that each of its sub-contractors shall, comply at all times with relevant data protection legislation and shall not perform their obligations under this agreement in such a way as to cause either party to breach any of its obligations under the data protection legislation. The Supplier shall immediately notify the Customer in the event that it becomes aware of any breach of the data protection legislation by the Supplier or any of its sub-contractors in connection with this agreement.

7.5 In the event of any loss or damage to Customer Data, Supplier shall use all reasonable endeavours to restore the same from any backup held by the Supplier..

7.6 The Supplier shall, at all times during and after the Term, indemnify the Customer and keep the Customer indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the Customer arising from any breach of the Supplier's obligations under this clause 4 except and to the extent that such liabilities have resulted directly from the Customer's instructions.

7.7 The following definitions apply: the terms "data controller", "data processor", "data subject", "personal data" and "processing" bear the respective meanings given them in the Data Protection Act 1998, and "data protection principles" means the eight data protection principles set out in Schedule 1 to that Act.

 

8. Supplier's obligations

8.1 The Supplier warrants that each of the Services will be performed with all reasonable skill and care and that it will be provided substantially in accordance with the relevant Service Specification.

8.2 The warranty in clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of any of the Services contrary to the Supplier's instructions.

8.3 If the Service does not conform with the warranty in clause 8.1, the Supplier will, at its expense, use all reasonable commercial efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.

8.4 Notwithstanding the foregoing, the Supplier does not warrant that the Customer's use of the Services will be uninterrupted or Error free.

8.5 The Supplier shall use reasonable endeavours to supply or procure the supply and installation of the Rented Equipment and Sold Equipment as specified in the Services Specification but any such dates shall be estimates only, and time shall not be of the essence in this agreement.

8.6 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.

 

9. Customer's obligations

9.1 The Customer shall:

9.1.1 provide the Supplier with:

    (a)  all necessary co-operation in relation to this agreement; and

    (b) all necessary access to such information as may be required by the Supplier;

in order to render the Service, including but not limited to Customer Data, security access information and software interfaces, to the Customer's other business applications;

9.1.2  provide such personnel assistance and access to and use of its premises, facilities and utilities as may be reasonably requested by the Supplier from time to time;

9.1.3 maintain all relevant Customer equipment in good working order and suitable for the Supplier to provide the Services;

9.1.4 comply with all applicable laws and regulations with respect to its activities under this agreement, including those set out in clause20;

9.1.5 carry out all other Customer responsibilities set out in this agreement or in any of the schedules in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary; and

9.1.6  ensure the Customer has and maintains the right in any equipment or software that it makes available to the Supplier as part of the Services, whether the same are stored on the Customer’s or the Supplier’s  premises.

 

10. Charges and payment

10.1 The Customer shall pay Charges for the Services in the amounts and at the times set out in the relevant Schedule or Services Specification or, if no Charges are specified, as calculated in the Supplier’s price list currently in force.

10.2 The Customer shall reimburse the Supplier for all actual, reasonable travel expenses including, but not limited to, airfares, hotels and meals incurred by the Supplier in performance of any Services, which the Supplier shall reasonably agree with the Customer in advance.

10.3 All amounts and Charges stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

10.3.1 The Customer shall pay the Charges by the Due Date. Time of payment by the Customer shall be of the essence in this agreement. Save where otherwise agreed, the Customer shall pay (and the Supplier may collect) all sums due under this agreement by way of variable direct debit in accordance with the direct debit mandate attached to this MSA or as varied from time to time.

10.4 The Supplier shall have the right to alter the rates of the Charges in the Supplier price list from time to time (unless still within the Initial Term) by giving the Customer not less than four weeks' notice in writing.

10.5 If the Customer fails to make any payment in full on the due date under this agreement the Supplier may:

10.5.1 request payment on demand of all invoices issued whether or not due at that point;

10.5.2 request payment upfront for any further Services it provides;

10.5.3 charge interest on the outstanding amount, such interest to accrue on a daily basis at the rate of 4% above the base rate of Barclays Bank PLC from time to time in force or such higher rate as is prescribed under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until the date of payment, whether before or after judgment;

10.5.4 suspend the provision of the Services;

10.5.5 exercise a lien over the any Sold Equipment until such time as all outstanding payments are made in full; and

10.5.6 where payment of any invoice has been outstanding for more than 60 days after the invoice due date:

    (a) sell any Sold Equipment and account to the Customer for all sums received less a sum equal to all sums outstanding due to the Supplier and an administrative fee to cover the costs of sale equal to 15% of the sums outstanding due to the Supplier at the time of sale of the Sold Equipment such fee to be a minimum of £75 plus VAT; and

    (b) charge the Customer a reconnection fee of up to 20% of the annual rental of the related Services;

10.6 The Supplier reserves the right to increase the price of the Services or supply of the Equipment by giving notice to the Customer at any time, to reflect any increase in the cost of the Services to the Supplier that is due to:

10.6.1 any factor beyond the Supplier’s control including but not limited to inflation, foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs;

10.6.2 any request by the Customer to change the delivery date, quantities and/or types of Equipment ordered or the commencement date of Services and/or the Services supplied under this Agreement;

10.6.3 any delay caused by any instruction of the Customer in respect of the Equipment or Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Equipment or Services;

10.6.4 any supplier (including but not limited to a Telco) to the Supplier increasing the cost of supply to the Supplier of any equipment or services which form part of the Equipment or Services provided by the Supplier to the Customer under this Agreement;

10.6.5 any failure or delay by the Customer to provide access to the premises or other locations which the Supplier requires access to in order to fulfil the provisions of this Agreement, Equipment, network, data or such other property or service which the Supplier reasonably requires access to in order to fulfil the provisions of this Agreement; or where access to any such site, information or service is restricted or curtailed;

10.6.6 any failure or delay on the part of the Customer in responding to a reasonable request or direction from the Supplier;

10.6.7 any failure or delay on the part of the Customer in obtaining any necessary licences, approvals or consents for any work required to be carried out by the Supplier under the provisions of this Agreement;

10.6.8 where there is a fault with any Equipment;

10.6.9 where the Customer does not have the minimum hardware required for the Supplier to fulfil the provisions of this Agreement;

10.6.10 the Customer requesting that the Supplier carry out any work required under the provisions of this Agreement outside of the Supplier’s Business Hours;

10.6.11 any costs incurred as a result of carrying out any maintenance or repair work which in the Supplier’s reasonable opinion is considered necessary in order to provide the Services (or as a result of providing the Services);

10.6.12 any maintenance or repair work;

10.6.13 any change to the Equipment ordered which will change the Equipment for which any maintenance services are provided by the Supplier; and

10.6.14 any delay, refusal or inability of the Customer to accept delivery of the Equipment.

10.7 The Supplier may increase any charges payable by the Customer with effect from the end of the Initial Term or any Extended Term by notice in writing at least 90 days prior to the expiry of the Initial Term or Extended Term as applicable.  

 

11. Changes

11.1 If either party wishes to change the scope of the Service (including Customer requests for additional services), it shall submit details of the requested change to the other in writing.

11.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:

11.2.1 the likely time required to implement the change;

11.2.2 any variations to the Charges arising from the change;

11.2.3 the likely effect of the change on the Service Specification if applicable; and

11.2.4 any other impact of the change on the terms of this agreement.

11.3 If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.

11.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its charges, the Service Specification and any other relevant terms of this agreement to take account of the change.

 

12. Proprietary rights

12.1 The Customer acknowledges and agrees that, as between the parties, the Supplier and/or its licensors own all Intellectual Property in all materials connected with the Services and in any material developed or produced in connection with this agreement by the Supplier, its officers, employees, subcontractors or agents. The Supplier grants the Customer a non-exclusive licence to use the Intellectual Property for the purposes of the Services. Except as expressly stated, this MSA does not grant the Customer any rights to such Intellectual Property.

12.2 The Supplier acknowledges that, as between the parties, the Customer and/or its licensors own all Intellectual Property in the Assets.

12.3 Subject to the Customer complying with clause 12.4, the Supplier shall indemnify the Customer against all costs, expenses, damages and losses as a result of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services.

12.4 The Customer shall:

12.4.1 notify the Supplier in writing of any claim against it in respect of which it wishes to rely on the indemnity in clause 12.3;

12.4.2 allow the Supplier, at its own cost, to conduct all negotiations and proceedings and to settle such claim;

12.4.3 provide the Supplier with such reasonable assistance regarding such claim as is required by the Supplier at the Supplier’s cost.

 

13. Confidential Information

13.1 Each party shall keep the other party's Confidential Information confidential and shall not:

13.1.1 use such Confidential Information except for the Permitted Purpose; or

13.1.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.

13.2 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

13.3 The Customer acknowledges that the Supplier's Confidential Information includes any network documentation, proposals, designs, plans, software or other materials created by the Supplier in connection with the Service and the Customer agrees not to make use of any such material for any purpose other than receipt of the Service from the Supplier. 

13.4 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

13.5 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

13.5.1 it informs such Representatives of the confidential nature of the Confidential Information prior to disclosure; and

13.5.2 at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.

13.6 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

13.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.

13.8 The provisions of this clause13 shall continue to apply after termination of this agreement.

14. Limitation of liability

14.1 This clause 14 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:

14.1.1 any breach of this agreement;

14.1.2 any use made by the Customer of the Services; and

14.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

14.2 Except as expressly and specifically provided in this agreement:

14.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by Errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction; and

14.2.2 all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.

14.3  Nothing in this agreement excludes or limits the liability of the Supplier for:

14.3.1 death or personal injury caused by the Supplier's negligence;

14.3.2 fraud or fraudulent misrepresentation;

14.3.3 breach of any obligation as to title implied by statute; or

14.3.4 any other liability which cannot lawfully be excluded or limited.

14.4 This MSA states the Customer's full and exclusive right and remedy, and the Supplier's only obligation and liability in respect of, the performance and/or availability of the Services, or its non-performance and non-availability.

14.5 Subject to clause 14.3 and clause 14.4:

14.5.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent) or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising; and

14.5.2 the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement (including any indemnities under this agreement) shall be limited to 150% of the Charges paid by the Customer under this MSA during the 12 months preceding the date on which the claim arose or if within the first 12 months then 150% of the total of Charges that were scheduled to fall due in the first year.

 

15. Suspension Of The Services

15.1 The Supplier may at its sole discretion upon giving notice to the Customer either orally (confirming such notification in writing) or in writing elect to suspend immediately the provision of the Services until further notice where:

15.1.1 the Supplier is entitled to terminate this agreement pursuant to Clause 16.2;

15.1.2 the Supplier or a Third Party needs to carry out any maintenance service to the Rented Equipment, the Sold Equipment or the Supplier’s own equipment necessary to provide the Services in which event the Supplier shall use its reasonable endeavours to ensure there is minimum disruption to the Services;

15.1.3 the Supplier or a Third Party suspects that the Equipment or Services are being used fraudulently or otherwise unlawfully;

15.1.4 the Supplier is entitled to suspend provision of any other telecommunication service under the terms of any other agreement between the Supplier and the Customer;

15.1.5 the Supplier is obliged to comply with an order, instruction or request of government, an emergency services organisation or other competent administrative or regulatory authority; or

15.1.6 the Supplier is entitled to do so under clause 10.5.4.

15.2 Any exercise by the Supplier of its right of suspension in respect of an event referred to this clause 15 shall not exclude the Supplier’s right subsequently to terminate this Agreement.

15.3 In the event a suspension is implemented as a consequence of the breach, fault or omission of the Customer, the Customer shall reimburse the Supplier for all reasonable costs and expenses incurred in the implementation of such suspension and/or the recommencement of the provision of the Services as appropriate.

15.4 The Supplier shall not be liable to the Customer for any charges incurred by the Customer for the use of other services whether provided by the Supplier or any other person during any period of unavailability referred to in Clause 15.1.

 

16. Term & Termination

16.1 This agreement shall commence on the Commencement Date and shall, unless terminated earlier in accordance with this clause, continue in force for the Initial Term. The term of the agreement shall automatically be extended for successive 12-month periods (Extended Term) at the end of the Initial Term and at the end of each Extended Term, unless a party gives written notice to the other party, not later than 120 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.

16.2 If the Supplier notifies the Customer of an increase in the charges under clause 10.7, the Customer shall have the option to terminate only those Services to which the price increase relates by providing written notice of termination of the relevant Service to the Supplier, such notice to be received by the Supplier at least 75 days prior to the date on which the price increase for that Service is due to come into effect. 

16.3 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

16.3.1 the other party commits a material breach of any term of this agreement or and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or

16.3.2 the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or

16.3.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (in the case of a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or

16.3.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or 

16.3.5 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); or

16.3.6 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; or

16.3.7 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or

16.3.8 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or

16.3.9 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(c) to clause 11.2 (i) (inclusive); or

16.3.10 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

16.4 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.

16.5 Termination of this agreement for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

16.6 On termination of this agreement for any reason, then the following provisions shall apply to such termination as appropriate:

16.6.1 the Supplier shall immediately cease provision of the Services but may, at the Supplier’s discretion and upon the Customer’s reasonable request and at the Customer’s expense, provide reasonable assistance to the Customer to help manage the exit process;

16.6.2 each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;

16.6.3 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

16.7 On termination of a Service for any reason but not this agreement as a whole, the provisions of clauses 16.6.1 to 16.6.3 shall apply in respect of the Services in that Services Specification, but all other Services (if any) shall continue in force.

16.8 If the Customer attempts to terminate any Service (including by attempting to terminate this Agreement as a whole) before the expiry of the relevant Initial Term or any subsequent Extended Term for that Service, the Supplier may in its discretion agree to accept this request (which would otherwise be a breach of the terms of this Agreement) subject to payment by the Customer to the Supplier of the following sums (as applicable):

16.8.1 sums for all Services up to the end of the relevant notice period;

16.8.2 all reasonable costs and expenses incurred by the Supplier in removing any Equipment and/or ceasing or migrating any Services on termination and any administrative expenses in doing the same;

16.8.3 the remaining charges for any Line rental that would have been due for the remainder of the Initial Term or Extended Term as appropriate;

16.8.4 the charges in relation to any long term commitments and/or unusually priced agreements with one or more of its suppliers due to the requirements of the Customer under this agreement.

16.9 The Supplier shall render a termination invoice in relation to all monies due under this clause and all sums payable under this clause shall be due to the Supplier and the Customer shall pay the same immediately.

16.10 For the avoidance of doubt, termination in relation to one or more Services shall not terminate other Services provided under this Agreement (unless it is the Agreement as a whole that is terminated).

16.11 If the reason for the termination of this Agreement or any Service is by the Customer in accordance with clause 16.3 then the Customer shall have no liability to the Supplier under the provisions of clause 9.6 but the provisions of clauses 9.5 and 9.7 shall apply.

 

17. Employees

17.1 The parties do not intend for any employees, officers, agents and contractors  to transfer pursuant to TUPE from the employment of the Customer into the employment of the Supplier in connection with the commencement and/or the provision of the Services.

17.2 If, notwithstanding clause 17.1, any employees, officers, agents and contractors  transfer (or are alleged to transfer) from the employment of the Customer into the employment of the Supplier, the Customer, on the demand of the Supplier, shall indemnify and fully reimburse the Supplier, for all time, from and against all direct or indirect actions, proceedings, claims, demands, costs, losses, expenses (including legal expenses), damages, liabilities and penalties whatsoever incurred, suffered or paid by the Supplier in respect of the employment or termination of the employment or other liability relating to each transferring individual.

 

18. Non-solicitation

18.1 Except in respect of any transfer of staff pursuant to TUPE, neither party shall (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party in the provision of the Services or (in the case of the Customer) in the receipt of the Services at any time during the Term or for a further period of 12 months after the termination of this agreement other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.

18.2 If either the Supplier or the Customer commits any breach of clause 18.1, the breaching party shall, on demand, pay to the claiming party a sum equal to one year's basic salary or the annual fee that was payable by the claiming party to that employee, worker or independent contractor plus the recruitment costs incurred by the claiming party in replacing such person.

 

19.  Uncontrollable event

The Supplier shall have no liability to the Customer under this agreement if it is prevented from, or delayed in, performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, provided that the Customer is notified of such an event and its expected duration and that if the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 14 days' written notice to the other party.

 

20. Anti-bribery

20.1 Each party shall:

20.1.1 comply with all applicable laws, regulations, mandatory codes and sanctions relating to anti-bribery and anticorruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);

20.1.2 have and shall maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;

20.1.3 promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this agreement;

20.1.4 immediately notify the other party if a foreign public official becomes one of its officers or employees or acquires a direct or indirect interest in the first party (and the first party warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this agreement).

20.2 Breach of this clause20 shall be deemed a material breach under clause16.3.1.

20.3 For the purposes of this clause20 a person associated with a party includes but is not limited to any subcontractor of that party.

 

21. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

 

22. Severance

22.1 If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.

22.2 If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.

 

23. Entire agreement

23.1 This agreement constitute the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.

23.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement.

23.3 Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.

23.4 Nothing in this clause shall limit or exclude any liability for fraud.

 

24. Assignment

24.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.

24.2 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner, with all or any of its rights or obligations under this agreement without the consent of the Customer.

 

25. No partnership or agency

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

 

26. Third-party rights

This agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit or be enforceable by anyone else.

 

27. Notices

27.1 Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.

27.2 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by fax, at 9.00 am on the next Business Day after transmission, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

27.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include email.

 

28. Dispute resolution procedure

28.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:

28.1.1 the operational managers of each party shall attempt to resolve the dispute as soon as practicably possible;

28.1.2 if the operational managers are not able to resolve the dispute within 5 Business Days, either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the senior executives of both parties attempt in good faith to resolve it; and

28.1.3 if the senior executives of each party are for any reason unable to resolve the Dispute within 15 Business Days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (Mediation notice) to the other party to the Dispute, requesting a mediation. A copy of the Mediation notice should be sent to CEDR Solve. The mediation will start not later than 20 Business Days after the date of the Mediation notice.

28.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute.

 

29. Governing law and jurisdiction

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

29.2 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 agreement or its subject matter or formation (including non-contractual disputes or claims).