1.1 These terms and conditions (‘General Terms’) are for business customers ordering Services for business purposes only. Any Services ordered under this Agreement are not to be used for domestic or residential purposes and you will not have the benefit of any rights that apply only to consumers under Applicable Law. These terms should be read alongside the other documents that comprise the Agreement.
1.2 The terms of the Agreement apply to all Orders you place for Services.
1.3 You shall ensure that your Order is complete and accurate and you shall be fully responsible and liable for all information set out on Orders you place with us.
The following definitions and rules of interpretation apply to this Agreement.
Acceptable Use Policy: Our acceptable use policy applicable to the Services which is available at the Website updated by us from time to time.
Agreement: the clauses of these General Terms, the applicable Service Terms, the Contract Information, the Contract Summary, each Order and any other documents referred to in such documents.
Applicable Law: all a) laws, statutes and regulations, and b) all instructions, guidelines, guidance, determinations, designations or codes of conduct having force of law of any regulatory authority or agency of competent jurisdiction, which relate to the provision or use of the Services which are applicable from time to time.
Applicable Data Protection Laws: means the UK GDPR and the Data Protection Act 2018 and any other laws of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
Business Day: a day, other than a Saturday, Sunday, public or bank holiday in England.
Business Hours: the period from 9.00 am to 5.30 pm on any Business Day.
Charges: all and any charges payable by you pursuant to this Agreement, or as set out in the Price List.
Commencement Date: the date on which the Order becomes binding on us and you or you otherwise indicate acceptance of the Order and/or this Agreement.
Contract Information: the document entitled Contract Information we issue to you in accordance with Applicable Law prior to your entering into this Agreement.
Contract Summary: the document entitled Contract Summary we issue to you in accordance with Applicable Law prior to your entering into this Agreement.
Deliverables: any documents, products and materials provided by us to you in relation to the Services.
Early Termination Charge: the charge payable by you in the event that a Service is terminated after the Service Commencement Date but prior to the end of any applicable Minimum Service Period and which is calculated as set out in clause 15.2 below.
Equipment: any equipment that we agree to supply to you as part of any Order for use in connection with the Services.
Index Rate: the Consumer Prices Index rate published by the Office of National Statistics in respect of December in the year prior to which any notice of increase of charges is given.
Intellectual Property Rights or IPRs: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses: all losses, liabilities (including provision for contingent liabilities), fines, damages, costs and expenses including without limitation legal fees on a solicitor/client basis and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties.
Minimum Service Period: the minimum contractual term applicable to a Service, starting on the Service Commencement Date for that Service, as set out in the Contract Information and Contract Summary.
Order: the document entitled “Order Form” we issue to you setting out the Services and Equipment we provide to you under this Agreement.
Portal: any web hosted portal as we may make available to you from time to time (at our sole discretion) for the purposes of providing you with information in relation to the Services and such other purposes as we may from time to time decide.
Price List: the prices, charges and/or tariffs in relation to any Services or Equipment set out on the Website from time to time.
Representatives: each party’s directors, officers, employees, agents or consultants of our group companies together with any professional advisors to the same.
Service Commencement Date: the date on which the Services are first provided or made available to you and they are capable of being used as contemplated by this Agreement.
Services: the services to be supplied to you by us as detailed or referenced in the applicable Service Terms and Order.
Service Terms: the specific service terms which relate to the Service and/or the Equipment which is being supplied to you and which are sent to you with the Order or otherwise referenced in the Order.
Software: any software provided by us to you that forms part of, or allows you to make use of, the Services and/or Equipment.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
We, Us and Our: Pozitive Telecom Limited incorporated and registered in England and Wales with company number 07764492 whose registered office is at Octagon, 27 Middleborough, Colchester, England, CO1 1TG.
Website: the website located at [https://pozitiveplanet.com/product/telecommunication] or any URL that replaces the same from time to time and/or the Portal.
Year: each successive period of 12 months, the first such period commencing on the Commencement Date.
You and Your: the person or entity identified as the customer in the Order.
Your Materials: all documents, information, items and materials in any form, whether owned by you or a third party, which are provided by you to us in connection with the Services.
2.1 References to clauses are to the clauses of this Agreement. Clause and paragraph headings shall not affect the interpretation of this Agreement.
2.2 A person includes a natural person or a corporate or unincorporated body (in each case whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
2.3 This Agreement shall be binding on, and be for the benefit of, the parties to this Agreement and their respective successors and permitted assigns, and references to any party shall include that party’s successors and permitted assigns.
2.4 Unless provided otherwise in this Agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that legislation or legislative provision.
2.5 A reference to writing or written excludes fax but includes email.
2.6 A reference to this Agreement or to any document referred to in this Agreement is a reference to this Agreement or such other document referred to in this Agreement, in each case as varied from time to time.
2.7 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.8 In the case of conflict between any of the documents that comprise this Agreement, the following descending order of precedence shall apply: (i) the Contract Summary, (ii) the Contract Information, (iii) the relevant Service Terms; (iv) the General Terms; (v) the Order; (vi) any other documents referred to in such documents.
3. Commencement and duration
3.1 This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with its terms, until the expiry or termination of all of the Services provided pursuant to this Agreement, when it shall terminate automatically without notice.
4.1 Once you have confirmed to our sales agents over the phone the services that you require us to provide, we will send you a Contract Information and Contract Summary, and an Order for you to sign and submit back to us. The Order shall become binding on us and you once you have signed and submitted the Order to us in accordance with our instructions.
4.2 You agree that once the Order becomes binding in accordance with clause 4.1 above, you will be bound by the terms of the Agreement, including in respect of using the Services and paying the Charges. You may not cancel a binding Order without incurring an Early Termination Charge.
5. OUR RESPONSIBILITIES
5.1 We shall use reasonable endeavours to supply the Services to you from the applicable Service Commencement Date in accordance with this Agreement in all material respects and subject to technical feasibility. We shall also provide the Services using reasonable skill and care as could be expected from a competent communications provider.
5.2 We shall use reasonable endeavours to meet any performance or delivery dates specified in the relevant Service Terms but any such dates shall be estimates only. Time shall not be of the essence in relation to the performance by us of any obligation under the Agreement and any lead times for the installation, commencement and/or recommencement of any Services or the delivery of any Equipment are indicative only and not guaranteed. This clause is without prejudice to your rights and our obligations under Applicable Law.
5.3 Without prejudice to any service levels set out in the Service Terms, we do not guarantee that the Services will be continuously available or fault-free or provide any minimum levels of service and you acknowledge that faults and issues may occur from time to time.
5.4 You acknowledge and agree that any non-mobile Services will not work in the event of a power cut and it is your responsibility to ensure you have a back up plan in place to make calls and/or access the internet in any such situation. Further details are set out in the relevant Service Terms and in our Vulnerable Policy.
5.5 If we do not comply with any of our obligations in clauses 5.1 and 5.2, we may (acting reasonably) at our sole discretion, and as our exclusive liability and your exclusive remedy, take such steps as we deem necessary to either:
5.5.1 remedy such failure; or
5.5.2 refund such part of the Charges as relates to the relevant part of the Services.
5.6 We provide a range of support for vulnerable customers. For information and assistance available to users with disabilities or who are otherwise vulnerable, please see our Vulnerable Policy.
6. Your Responsibilities
6.1 You shall:
6.1.1 co-operate with us in connection with the Services and comply promptly with our reasonable instructions and/or those of our suppliers;
6.1.2 promptly provide us with such assistance, access to people, premises, facilities and complete and accurate information as we may require from time to time to comply with our obligations under this Agreement and to verify that you are complying with your obligations under this Agreement. This includes, without limitation, ensuring that we have up to date and correct contact information for you;
6.1.3 comply with all Applicable Laws and not cause us or any of our suppliers to breach any Applicable Laws;
6.1.4 ensure that any services and/or equipment that you use in connection with the Services is in good working order and is suitable for use with the Services and conforms with all Applicable Laws. In particular you must check with the relevant manufacturer and/or service provider that that any systems and/or equipment that you intend to use with any of our Services including CCTV, alarms and/or telemetry equipment will operate correctly when used with such Services;
6.1.5 keep any Equipment that we provide to you in good working order and promptly apply any software releases, updates, patches or fixes as we or our suppliers may require from time to time;
6.1.6 obtain and maintain in force all necessary authorisations, licence, permits or consents necessary or required either by Applicable Laws for using any of the Services or permitting the Services to be installed;
6.1.7 comply with the Acceptable Use Policy and other policies that may be implemented from time to time in relation to the use of the Services and/or the Equipment, you acknowledge that updates to such policies will not be notified to you and it is your responsibility to check for any updates to such policies. You must keep safe at all times all passwords and security information you use for your Service and your account with us;
6.1.8 ensure that you have adequate provision in place to meet your needs to protect against any loss of data, service or connectivity including in the event of a power cut; and
6.1.9 only use the Services and Equipment for your own use business use and not re-sell or allow a third party to use the same. You are responsible for all use of the Services connected with your account with us.
6.2 You shall indemnify, keep indemnified and hold us harmless in respect of any and all Losses incurred or suffered by us to the extent they result directly or indirectly from any breach by you of clause 6.1.
6.3 If you use a Service in breach of clause 6.1, or we have a reasonable suspicion that you may have done so, then we may suspend the relevant Service on giving you written notice. If we suspend the Service in accordance with this clause, we shall reconnect the Service as soon as reasonably practicable once we are satisfied that the breach in question (if remediable) has been remedied by you. If the breach in question cannot be remedied, we may terminate this Agreement by giving you written notice and you may be liable for Early Termination Charges. All Charges shall remain payable during any period of suspension and we shall also be entitled to invoice you for charges associated with any such reconnection (as set out in the Price List list) and the same shall be payable by you in accordance with clause 9.
6.4 If the performance of any of our obligations under the Agreement is prevented or delayed by your act or omission or failure to perform any relevant obligation (Your Default):
6.4.1 we may suspend performance of the Services until you remedy Your Default, and we shall be relieved from the performance of any of our obligations in each case to the extent Your Default prevents or delays such performance;
6.4.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of its obligations; and
6.4.3 you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising out of or in connection with Your Default.
6.5 We are not obliged to monitor the usage of the Services by you. In the event that we do carry out any such monitoring, we shall not be liable for detecting, preventing or failing to detect or prevent any unauthorised or fraudulent use of the Services.
6.6 You shall not use the Services for any illegal, fraudulent or unauthorised use and shall notify us immediately as soon as you become aware of any such use of the Services whether by you or by any third party including your employees, agents or contractors.
6.7 We can suspend or terminate the provision of the Services upon becoming aware of any illegal, fraudulent or unauthorised use of the Services or if we have a reasonable suspicion of the same. If we suspend any of the Services pursuant to this clause 6.7, then, subject to earlier termination in accordance with this clause, we will recommence provision of such Services as soon as reasonably practicable after you demonstrate to our reasonable satisfaction that appropriate technical, organisational, security or other measures have been put in place to prevent any further unauthorised or fraudulent use of the Services. Any such suspension shall be without prejudice to our right to terminate at any time during such period of suspension.
6.8 You shall remain liable for the payment of the Charges for the Services in relation to any illegal, fraudulent or unauthorised use of the Services by you, any person who uses and/or accesses any of the Services pursuant to this Agreement or otherwise as a result of your acts or omissions including for any suspension in respect of the same.
7.1 As well as our rights to change the Charges which are set out in clause 8 below, we are entitled to make other changes to this Agreement, the Charges and/or any of the Services from time to time. Unless such change is (i) exclusively for your benefit; (ii) purely administrative with no negative effect on you; or (iii) is directly imposed by a change in Applicable Law, we will give you at least one month’s notice in writing of such change. In such circumstances, you may terminate the Agreement by giving us notice within one month of the date of the notice given by us of any such proposed change.
7.2 If you terminate the Agreement in accordance with clause 7.1:
7.2.1 the Agreement will terminate on the date on which the change comes into effect or, where this is not feasible due to the timing of your notice of termination, as soon as reasonably possible after that date; and
7.2.2 no Early Termination Charges will apply.
8. Charges and payment
8.1 Except for usage related charges which shall be invoiced in arrears, unless otherwise specified in the Order or otherwise agreed between the parties, we shall invoice you for the Charges in relation to a Service monthly in advance on the same date in each month as the date on which the Service Commencement Date for that Service falls or if that day is not a Business Day on the next Business Day.
8.2 We may increase the Charges to reflect any change to the Index Rate plus 3.9% with effect from 1 April in each year on giving you at least one month’s written notice. If the Index Rate Increase is equal to or less than zero then this will be ignored and the Charges will increase by 3.9%.
8.3 We will only increase the prices to call non-UK destinations from the UK and for roaming calls (calls made from a mobile while the user is in another country) by any increase in the costs we are charged by our third party providers. The rate you will be charged will always be the rate shown on the Website on the day you make the call, which may increase from time to time. For example, this means that if your price to call a landline in the United States of America was 50 pence per minute yesterday and our cost of supply increases by 5 pence per minute, the new price on the website will be 55 pence per minute, which is the cost you will pay for a call today. For any change made in accordance with this clause 8.3, clause 7.1 will not apply.
8.4 You shall pay each invoice submitted to you under this Agreement by us within ten (10) days of receipt to a bank account nominated in writing by us from time to time. Unless otherwise agreed, you shall make all payments by Direct Debit. If you cancel your Direct Debit or fail to pay by Direct Debit for any reason, we may charge (and if charged, you shall pay) an administration fee as set out in the Price List which can be found on the Website.
8.5 Any delay by us in invoicing you for the Charges shall not prevent us from raising an invoice at a later date in respect of the same, nor shall it relieve you of your liability to pay for the same. If you (acting reasonably and in good faith) wish to dispute an invoice, or any part of an invoice issued by us, you must do so within 10 days of the date of the invoice, providing full details of the dispute to allow us to investigate it and any other information and evidence which we reasonably require to verify the disputed sum. Where an invoice is disputed in part, payment of the undisputed part must be made in accordance with this Agreement. You shall deemed to have accepted any invoice not disputed in accordance with this clause 8.5. Within 7 days following resolution of the invoice dispute either, as the case may be, you shall pay us that part of the disputed sum which is resolved as payable by you or we shall reimburse you any part of the disputed sum already paid by you that it is resolved as not payable by you.
8.6 If you do not pay us any sum due under this Agreement on the due date we shall be entitled to:
8.6.1 charge you interest on the overdue sum from the due date until payment of the overdue sum, which shall accrue each day at the interest rate payable pursuant to the Late Payments of Commercial Debts (Interest) Act 1998, to run from the due date of payment until receipt by us of the full amount (including any accrued interest) in cleared funds whether before or after judgment in respect of the overdue amount.
8.6.2 invoice you for the reasonable costs incurred by us of collecting any undisputed overdue amount from you.
8.6.3 pass information relating to you (including, where relevant, personal data) on to a credit reference agency.
8.7 All sums payable to us under this Agreement are (i) stated exclusive of VAT, and you shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and (ii) must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.8 We may set off any liability which you have to us against any liability which we have to you, whether present or future, liquidated or unliquidated, and whether it arises under this Agreement and/or any other contract between you and us or out of any other cause of action.
9. INTELLECTUAL PROPERTY
9.1 Save as set out in this clause 9, nothing in this Agreement or any Order shall affect, grant any licence to, or transfer any IPRs of yours or ours which exist as at the Commencement Date.
9.2 You hereby grant us a non-exclusive licence to use any of your data to the extent necessary for us to fulfil our obligations pursuant to this Agreement.
9.3 Except as is permitted by, or required to be permitted by, law, you shall not copy, modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble, sub-license or carry out any act otherwise restricted by copyright or other IPR in the Services, Software or Deliverables without our prior written consent and will not distribute or disclose any Software to any third party. We hereby grant you, or shall procure the grant to you of, a non-exclusive licence to use the Software to the extent necessary for you to use the Services pursuant to this Agreement, subject to the licence terms (if any) accompanying or contained in such software or otherwise notified by us to you, and you shall comply with and act in accordance with those terms. You acknowledge and agree that where any Software is subject to the terms of a third party that your rights in relation to that Software shall be against that third party and that we shall no liability to you arising out of or in connection with that Software or its use by you, whether in contract, tort (including negligence), breach of statutory duty or otherwise howsoever arising.
9.4 Neither we nor you shall use the other party’s IPRs except to the extent necessary and for the sole purpose of fulfilling its obligations and exercising its rights under this Agreement.
9.5 Subject to clause 9.6, we shall indemnify you against any amounts awarded by a court or paid in settlement in relation to a claim by a third party that the use of any Service provided by us pursuant to this Agreement infringes the IPR of any third party provided that you:
9.5.1 promptly notify us of such claim
9.5.2 make no admission in relation to such claim; and
9.5.3 give us sole control of such claim including any proceedings in relation to the same;
9.5.4 allow us to modify or replace the Service to make it non-infringing.
9.6 We shall not be liable under clause 9.5 to the extent that such liability arises out of or in connection with:
9.6.1 your breach of this Agreement or the use of the Services by anyone other than you;
9.6.2 a specific design, feature or modification provided by us at your request;
9.6.3 any failure by you to implement any software releases, updates, patches or fixes as we or our suppliers may require from time to time where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
9.6.4 the combination or use of the Services with any other products, services or items not supplied by us;
9.6.5 the modification of the Services by anyone other than us or on our behalf;
9.6.6 any third party components or elements of the Services.
9.7 If any claim is made or is reasonably likely to be made against you, we may at our sole option and expense procure for you the right to continue using and possessing the relevant Services or modify or replace the infringing part of the Services to avoid the infringement or alleged infringement.
10. DATA PROTECTION
10.1 For the purposes of this clause 10, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
10.2 We collect and use personal data when you express an interest in one of our services, register, buy or use our services so that we can set you and your users up and provide you and them with our products and Services.
10.3 The personal data we need may include contact details and other information about you and your users that we need in order to enter into a contract with you and to provide you and your users with the Services.
10.5 We and you shall comply with all applicable requirements of the Applicable Data Protection Laws.
11. CONFIDENTIALITY AND PUBLICITY
11.1 References in this Agreement to ‘confidential information’ mean information in whatever form belonging or relating to one party which is expressly marked as confidential or where it is clear by necessary implication that it is of a confidential nature. Neither we nor you shall disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
12. LIMITATION OF LIABILITY
12. 1 References to liability in this clause 12 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise.
12.2 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
12.2.1 death or personal injury caused by negligence;
12.2.2 fraud or fraudulent misrepresentation; and
12.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.3 Nothing in this Agreement shall limit your liability to pay all undisputed Charges in accordance with the Agreement, any indemnity given by you under this Agreement or any provision set out in clauses 10 to 12 (inclusive).
12.4 Subject to clause 12.2, our total aggregate liability arising out of or in connection with this Agreement in any Year shall not exceed the amount of any Charges paid or payable in that Year in respect of any relevant Service provided that where such liability relates to any Equipment then our liability shall be limited to the replacement cost of that Equipment.
12.5 Subject to clause 2, we shall not be liable for the loss of:
12.5.1 profits (whether actual or anticipated);
12.5.3 sales or business;
12.5.4 agreements or contracts;
12.5.5 anticipated savings;
12.5.6 operation time;
12.5.7 use or corruption of software, data or information or loss of equipment or any damage to the same;
12.5.8 reputation or damage to goodwill;
in each case whether direct or indirect; or
12.5.9 any special, indirect or consequential loss or damage.
12.6 Where we choose to pay any service credits in relation to breach of a service level, such service credits shall be your sole and exclusive right and remedy for any failure by us to comply with such service levels. Any service credits paid or payable shall be taken into account when assessing the liability caps in clause 12.4.
12.7 Except as otherwise stated in this Agreement, all warranties and conditions whether express or implied by statute, common law or otherwise in relation to the provision of the Services are hereby excluded to the fullest extent permitted by law.
12.8 We shall not be in breach of this Agreement to the extent that such breach is due to the compliance by us with any Applicable Law.
12.9 You agree and acknowledge that your rights in relation to the provision of the Services and/or any breach of this Agreement are against us and you shall not take any action or make any claim against any third party in connection with this Agreement. You shall indemnify us against all Losses arising out of any breach of this clause.
13.1 We may upon giving notice in accordance with clause 13.2 restrict or suspend the provision of any Service (whether in whole or in part) without liability (subject to clause 13.5) if:
13.1.1 necessary for operational reasons such as upgrades to any of the Services or maintenance;
13.1.2 a Service has been affected by a Force Majeure Event;
13.1.3 we or any of our suppliers is required to so do in order to comply with any Applicable Law or any court order, or request, order, direction, determination or consent by or of a governmental or regulatory body;
13.1.4 you are in breach of this Agreement or we are entitled to terminate the Agreement;
13.1.5 you fail to pay any invoice in accordance with clause 8;
13.1.6 any third party supplier restricts suspends or terminates the Service in whole or part.
13.2 Except in the case of clause 13.1.4 (where we may restrict or suspend Services on immediate notice to you), for any other restriction or suspension under clause 13.1, we will use reasonable endeavours to give you as much notice as reasonably practicable of such suspension and will restore the Service as soon as we are reasonably able to do so provided we are satisfied (acting reasonably) that the reason for the suspension has ceased and there is no immediate prospect of it reoccurring.
13.3 You shall continue to pay the Charges for the Services during any period of suspension other than suspension pursuant to 13.1.2.
13.4 Any exercise by us of our rights of suspension in accordance with this Agreement shall not exclude our right subsequently to terminate this Agreement (whether in whole or in respect of specific Services).
13.5 If there is any suspension under clauses 13.1.4 or 13.1.5 or (where such suspension is wholly or partly attributable to you) clause 13.1.6, you shall reimburse us for all costs and expenses incurred by us in the implementation of such suspension and/or the recommencement or the provision of the Services (as applicable).
14.1 Subject to earlier termination of this Agreement in accordance with its terms, this Agreement shall remain in effect during the Minimum Service Period(s) of all relevant Services. Upon expiry of the Minimum Service Period, the Minimum Service Period will not automatically renew but this Agreement for the relevant Service shall continue unless and until terminated by us or you on giving at least 30 days’ notice to the other, such notice to expire at the end of the Minimum Service Period or at any time after that.
14.2 You may terminate this Agreement for some or all Services upon giving to us not less than 30 days’ notice in writing provided that where you terminate this Agreement pursuant to this clause 14.2 during any Minimum Service Period, you must pay us the Charges incurred up to the date of termination and any outstanding or overdue charges and the Early Termination Charges in respect of the relevant Service(s). The Early Termination Charge shall be calculated as follows:
14.2.1 the sum of all outstanding Monthly Charges ordinarily payable until the end of the Minimum Service Period for the relevant Service(s), calculated at a daily rate (but excluding VAT) minus 3%, plus VAT.
14.3 Either we or you may terminate this Agreement in respect of some or all Services with immediate effect by giving written notice to the other party if:
14.3.1 the other party commits a material breach of any other term of this Agreement 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;
14.3.2 the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 14.3.
14.3.3 the other ceases or threatens to cease to trade.
14.4 We may terminate this Agreement in respect of some or all Services with immediate effect by giving written notice to you if:
14.4.1 you fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 7 days after being notified in writing to make such payment;
14.4.2 you have committed fraud in relation to this Agreement, or we reasonably consider that an act, omission or default by you will result in (or has resulted in) a failure by you or us to comply with any Applicable Laws or constitutes fraud or other unlawful activity, or may place us in breach of any agreement with any third party supplier;
14.4.3 we are required to do so by any governmental or regulatory authority or to comply with any Applicable Laws;
14.4.4 you or your respective officers or employees are prosecuted for a criminal offence relating to the Services or any similar services; or
14.4.5 any third party supplier terminates the provision of any of the Services (in whole or part).
15. Obligations on termination and survival
15.1 On termination or expiry of this Agreement:
15.1.1 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
15.1.2 you shall pay to us, within 7 days of the effective date of termination any Early Termination Charge for which you are liable;
15.1.3 cease use of and (if and to the extent required by us), subject to compliance with Applicable Laws, destroy or deliver up to us (at our option) all documentation containing our confidential information and erase from any computer under your control any documents or files containing or reflecting our confidential information in a manner that makes the erased data irrecoverable.
Where the Agreement is terminated in respect of only some (and not all) Services, this clause 15.1 shall apply to the relevant extent and not in respect of any Services that are to continue.
15.2 Except where you terminate this Agreement pursuant to clauses 9.1 and/or 14.3, you will forfeit any Charges paid to us in advance in relation to any Services.
15.3 On termination or expiry of this Agreement, the following clauses shall continue in force: clause 8, 9, 10, 11 12, 15 , 17 and 18 and any provision containing an indemnity together with any other provisions of the Agreement which are impliedly or expressly stated to survive termination or expiry.
15.4 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
16. ANTI-BRIBERY AND MODERN SLAVERY
16.1 Each party shall, and shall procure that its staff, employees, agents and any other persons who perform its obligations under the Agreement (or otherwise carries out activities in relation to it) for and on behalf of it in connection with the Agreement shall in relation to its activities pursuant to this Agreement comply with all Applicable Law which relates to the anti-bribery and/or anti-corruption, including the Bribery Act 2010.
17. FORCE MAJEURE
17.1 Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations to the extent that such delay or failure results from a Force Majeure Event and the time for performance of such obligations shall be extended accordingly. If the period of breach, delay or non-performance continues for 30 days or more, the party not affected may terminate this agreement by giving 7 days’ notice written notice to the affected party.
17.2 For the purposes of this clause a “Force Majeure Event” means any circumstance not within party’s reasonable control including, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government, regulators, public authority or other competent authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors; and interruption or failure of utility service, including power failures or other public telecommunications operators and/or non-availability of any third party communication services and/or the internet.
18.1 Each party shall at the request of the other party do or cause to be done all such further acts and shall execute in favour of the other party such documents as the other may reasonably require, in a form and substance satisfactory to the other party, in order to give full effect to any right, benefit or remedy of the other party under or in connection with this Agreement and/or other relevant dealings.
18.2 This Agreement is personal to you and you shall not assign, transfer or subcontract any of your rights and obligations under this Agreement without our express written consent in advance (such consent not to be unreasonably withheld or delayed). We may at any time assign, transfer sub-contract any or all of our rights and/or obligations under this Agreement. You shall at our request enter into such documents as we may reasonably require to give effect to this clause 18.2.
18.3 Subject to any express provisions in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by both us and you (or either party’s authorised representatives).
18.4 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any other rights or remedies provided under this Agreement and any other rights or remedies provided by law.
18.6 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement and the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.7 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
18.8 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, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18.9 Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
19. DISPUTE RESOLUTION
19.1 If you have any issues with the Services, including coverage or speed, you should contact us. Our Customer Complaints Policy available on the Website sets out how you can contact us and how we’ll deal with any complaint or dispute. You may be able to refer an issue to an alternative dispute resolution service to get an independent opinion. Our Customer Complaints Policy provides further information about this.
20.1 Any notice or communication sent by you to us or by us to you can be given by any of the ways set out on our Website in our Code of Practice.
20.2 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.
21. LAW AND JURISDICTION
21.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.