Last Updated: May 2018
The agreement relates to the on-site maintenance and Managed services provided by Communicate Technology PLC.
2.0. The Agreement shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter:
2.1. if the Customer is a consumer or employs less than 10 employees (a “Specified Customer”) and the Services to be provide by Company are (i) fixed line telephone service and (ii) fixed broadband services (each a “Fixed Service”) then the Agreement in relation to such Fixed Service only shall automatically terminate at the end of the Minimum Term and the parties shall be entitled to enter into a new Contract in relation to such Fixed Services; or
2.2. if the Customer is not a Specified Customer or the Service to be provided by Company under the Agreement is not a Fixed Service then the Agreement in relation to such Services (other than Fixed Services) shall be subject to clause 14.0 automatically renew for consecutive 12 month periods (each a (“Renewal Period”) until terminated by either party in accordance with the terms of this Agreement.
3.0. In consideration of the Customer paying the Charges and fulfilling all of its commitments as set out in the Agreement, Company shall supply the Services in accordance with the terms of the Agreement.
3.1. Company shall commence supplying a Service on the relevant Service Commencement Date and shall supply those Services for the Minimum Term and thereafter until terminated by either party in accordance with the provisions of the Agreement.
4.0. Company will supply the Services with the reasonable skill and care of a competent telecommunications service provider.
4.1. Company does not guarantee that the Services will be continuously available and/or fault-free. The Customer acknowledges that faults may occur from time to time.
4.2. Company will endeavour to provide the Services subject to technical and commercial feasibility.
4.3. Company shall be entitled to change the way it provides a Service, provided that any change to the way it provides such Service does not have a materially detrimental effect on the Customer.
4.4. Company shall use reasonable endeavours to provide the Services within any time periods and/or by any date indicated to the Customer, but all time periods and dates (including the Target Delivery Date) are estimates and Company shall have no liability for any failure to meet any date or perform any of its obligations within the time period indicated.
5.0. The Customer shall pay the Charges by Direct Debit for:
5.1. The Customer acknowledges that the Charges have been agreed on the basis that they will be paid by Direct Debit. Where the Customer fails to set up any such Direct Debit then Company may add to its Charges a monthly amount for its administration expenses.
5.2. The Charges are as set out in the Commercial Schedule, or:
5.3. Where relevant Charges shall be based upon call and billing data recorded by or on behalf of Company.
5.4. The Charges are exclusive of value added tax which will be charged at the prevailing rate.
5.5. Unless otherwise stated in the Commercial Schedule or the Company Price List:
5.6. The Customer will be liable for any Charges incurred as a result of unauthorised use of the Services whatsoever and howsoever and whether fraudulently, through misuse or otherwise.
5.7. The Customer may be liable for a Termination Fee.
5.8. If applicable, where the Customer fails to meet the Minimum Revenue Commitment, Company will apply a charge equal to the difference between the actual spend by the Customer and the Minimum Revenue Commitment on a monthly basis in arrears.
6.0. Unless otherwise agreed with the Customer, Company may issue to the Customer on a monthly basis one or more invoice(s) which shall set out the Charges due in accordance with the Agreement.
6.1. Unless otherwise stated in the Commercial Schedule, the Customer shall pay:
6.2. If the parties agree that payments of the Charges to Company are to be made by credit card and if payments of such Charges are not made on the due date, Company is authorised to debit the Customer’s nominated credit card company with all Charges due and payable to Company.
6.3. The Customer shall pay each invoice issued by Company under the Agreement (including any invoice relating to Termination Fees) within 30 days of the date of invoice.
6.4. The Customer shall pay the Charges (including any Termination Fees) in full without any deduction or set off.
Late payment
6.5. Without prejudice to any other rights of Company, in the event of the Customer failing to pay any sums due to Company on time or at all, notwithstanding notification by Company of the overdue debt to the Customer, Company shall be entitled to:
Credit security
6.6. Company reserves the right to set a credit limit on the Charges that can be accrued under the Agreement and Company can review any such credit limit at any time.
6.7. Company may require from the Customer a deposit as security for payment of Charges. The Customer may request the return of any deposit paid at the expiry of each 12 month period after the deposit was taken but the decision to return any deposit prior to termination of the Agreement will be at the discretion of Company. Company reserves the right to set off any deposit against the Charges.
New services on the terms of the Company Price List
7.0. The Customer may request new services on the terms set out in the Company Price List by placing a new service order under the Agreement. Company shall be entitled to accept or reject a new service order. Once a new service order is accepted by Company:
New services on bespoke terms
7.1. The Customer may request a new service at any time on terms other than those set out on the Company Price List. In the event that Company and the Customer agree the terms that would apply to such new services, those terms will be added to the Agreement by execution of a formal variation in writing to the Agreement.
8.0. Subject to any specific procedures otherwise set out in the Agreement, the Customer may request a change to the Services by submitting a request in writing, including, but not limited to the following types of changes:
The change request shall contain sufficient information to enable Company to submit a response.
8.1. Company shall supply to the Customer a written response confirming whether or not Company would be prepared to accept the changes and may specify in such notice:
8.2. any additional Charges that would result from the change (e.g. Termination Fees in the case of termination of an instance of a Service) and/or any changes to existing Charges;
8.3. The Customer shall notify Company in writing within 14 days of the date that it receives Company’s response whether or not it would like to proceed with the change.
9.0. The Customer shall and shall procure that Users (or anyone having access to the Services), shall:
9.1. Subject to clause 11 of these General Conditions, the Customer agrees that it is procuring the Services solely for its own use and that it will not re-sell or otherwise act as any form of distributor in respect of the Services.
9.2. The Customer shall provide Company with any and all information and/or assistance that Company may require in order to perform the Services. The Customer shall ensure the information is complete and accurate. Company shall not be responsible for any failure and/or delay to provide the Services if such failure and/or delay is a result of the Customer’s failure to provide Company with the required information and/or assistance. The Customer shall reimburse Company for any administrative charges that it incurs as a result of information that it receives in accordance with this clause 9.2 that is incomplete or inaccurate.
9.3. The Customer shall notify Company immediately (and confirm in writing) on becoming aware that any person is making improper or illegal use of the Services. The Customer shall indemnify Company fully against all losses, liabilities, costs (including without limitation legal costs) and expenses which Company may suffer or incur as a result of any fraud, illegal or improper use (with or without Customer’s authorisation) of the Services.
9.4. The Customer agrees and acknowledges that Company, network provider and/or a supplier of Company or network provider may monitor and record:
9.5. The Customer acknowledges that some of the Services enable access to the Internet and that use of the Internet is solely at the Customer’s risk and subject to all applicable laws. Company has no responsibility for any information, software, services, goods or other materials obtained by the Customer using the Internet.
9.6. The Customer warrants to Company that it will take all reasonable steps (including testing with the latest commercially available virus detection software) to ensure that any software used with or in connection with the Services that is not provided by Company under the Agreement is not infected by viruses and/or logic bombs, worms, trojan horses and any other types of disruptive, destructive or nuisance programs.
10.0. Company may allocate the Customer numbers, IP addresses and other codes in accordance with the Terms and Service Schedules.
10.1. Nothing in the Agreement shall be construed as to transfer from Company to the Customer ownership of any numbers, IP addresses or other codes or to grant the Customer the right to sell or dispose of a number, IP address or other code. All the Customer’s rights to use such IP addresses or other codes will cease upon termination of the Agreement or the relevant Service.
10.2. The Customer acknowledges that Company may change the numbers, IP addresses or other codes it has allocated to the Customer. Company shall (where reasonably practicable) provide the Customer with reasonable notice of such a change.
10.3. The Customer will comply with any and all instructions for use of any number, IP address or other code issued by the Third Party provider of that number, IP address or other code. Company shall (where reasonably practicable) provide the Customer with reasonable notice of such instructions.
11.0. Company acknowledges that the Customer may permit a Customer Affiliate to use the Services supplied by Company to the Customer under the Agreement. The Customer will procure that its Affiliates are aware of and comply with the terms of the Agreement. The Customer shall be liable to Company for any and all:
11.0.1. claims, losses and expenses suffered or incurred by Company as a result of a breach of a term of the Agreement resulting from a Customer Affiliate’s use of the Services; and
11.0.2. losses, costs and expenses resulting from any claims against Company made by any of the Customer’s Affiliates (or any other Third Party whom the Customer has permitted to use a Service or related equipment) to the extent that such claims exceed the financial caps and other limitations on liability as set out in the Agreement.
The foregoing liabilities shall remain in full force and effect notwithstanding any termination of the Agreement.
12.0. Company reserves the right from time to time to vary the Agreement as follows:
12.0.1. Company shall be entitled to vary the Customer Service Charter and/or the Company Price List (including the prices and tariffs set out in the Company Price List). Such variations shall be published at http://www.Communicateplc.com at least 28 days before such changes come into effect or, where the variation arises due to changes imposed by Third Party manufacturers, Third Party suppliers or a regulatory body, as much notice as is reasonably practicable; and
12.0.2. Company shall be entitled to vary the provisions of the Agreement (including for the avoidance of doubt, the Commercial Schedule). Company will provide to the Customer 28 days notice in writing of any such variation or, where the variation arises due to changes imposed by Third Party manufacturers, Third Party suppliers or a regulatory body, as much notice as is reasonably practicable.
Maintenance and emergencies
13.0. Company may, from time to time and without notice, suspend the Services in any of the following circumstances:
13.1. Company shall endeavour to restore the Services suspended in accordance with clause 13.0 of these General Conditions as soon as reasonably practicable.
13.2. The Customer shall remain liable for all Charges levied in accordance with the Agreement during any period of suspension arising from the circumstances described in clause 13.0 of these General Conditions.
Actions of the Customer and/or fraud
13.3. Company may, without prejudice to its other rights hereunder, suspend or disconnect the Services without notice in any of the following circumstances:
13.4. if Company has reasonable cause to suspect fraudulent use of the Services (whether by the Customer or any third party).
13.5. If Company has suspended the Services in accordance with clause 13.3 of these General Conditions, Company shall restore the Services when the circumstance described in clause 13.3 of these General Conditions is remedied.
13.6. The Customer shall remain liable for:
Termination for convenience
14.0. The Customer may terminate the Agreement (in whole or in relation to a particular Service) by providing to Company 90 days’ notice in writing providing such notice does not expire prior to the expiration of the Minimum Term or Renewal Period relevant to those Services being terminated.
14.1. Company may terminate the Agreement (in whole or in relation to a particular Service) by providing to the Customer 90 days’ notice and, in this event, the Customer shall not be liable for any Termination Fees.
Termination resulting from changes to the Agreement
14.2. Subject to clause 14.4 of these General Conditions, the Customer shall be entitled to terminate a Service by providing 30 days’ notice in writing if:
14.3. Company increases the prices and/or tariffs set out in the Company Price List and/or the Commercial Schedule in respect of that Service pursuant to clause 12 of these General Conditions and that increase is to the material disadvantage of the Customer (for the avoidance of doubt an increase in prices and/or tariffs of 10% or less in any 12 month period shall not constitute a material disadvantage of the Customer); or
14.4. The right to terminate a Service in clause 14.2 above shall not apply where the increases in prices or tariffs or the variation of the terms of the Agreement arises as a consequence of a change in prices, tariffs, terms or otherwise made by Third Party manufacturers, Third Party suppliers or a regulatory body.
14.5. Termination of a Service in accordance with clause 14.2 of these General Conditions will not affect the Customer’s requirement to pay the Charges relating to that Service incurred prior to the date of termination, but, in this event, the Customer shall not be liable for any Termination Fees.
Termination for cause
14.6. The Customer may terminate the Agreement by providing to Company 30 days’ notice in writing in the event that Company:
14.7. Company may terminate the Agreement (in whole or in relation to a particular Service) by providing 30 days’ notice in writing:
14.8. and in the event of clause 14.7 applying, the Customer shall without limitation to any other remedies available to Company be liable for the Termination Fees (if any).
Insolvency
14.9. A party to the Agreement may terminate the Agreement by providing 30 days’ notice in writing in the event that bankruptcy or insolvency proceedings are brought against the other party, or if an arrangement with creditors is made, or a receiver or administrator is appointed over any of the other party’s assets, or the other party goes into liquidation.
Consequences of termination
14.10. If the Agreement is terminated and the Customer wishes to transfer to another service provider, Company will provide reasonable assistance to the Customer in respect of the transfer of the Customer’s service in accordance with standard telecommunications industry practice.
14.11. Termination or expiry of the Agreement for whatever reason shall not affect:
14.12. On termination or expiry of the Agreement:
14.13. In the event of the Customer wishing to terminate any of the Services at any time prior to the expiration of the Minimum Term or Renewal Period relevant to such Service and Company (in its sole discretion) electing to accept such notice or Company terminating Services during the Minimum Term or Renewal Period pursuant to any of clauses 14.7 or 14.9 the Customer shall pay in full (i) an amount equal to the Discount for the period any of the Services have been supplied as Discount Services during the Minimum Term or Renewal Period and (ii) and admin charge of £25 per each Service and per each line or connection.
14.14. In the event of the Customer:
14.15. then the Customer accepts that Company shall be entitled to invoice the Customer a cancellation charge which is equal to:
14.15.1. 100% of the total Charges which are fixed charges (i.e. Line Rental Charges); together with an amount equal to
14.15.2. 30% of the aggregate anticipated call charges and other non -fixed charges
14.15.3. in each case which would have been payable in respect of the relevant Services being terminated or attempted to be terminated during each month outstanding during the remainder of the relevant Minimum Term or Renewal Period (as applicable) (each of 14.15.1 and 14.15.2 above together being the “Termination Fee”). For the purposes of part (b) above the Termination Fee shall be calculated for the call charges and other non -fixed charges using:
15.0. Title to, and all intellectual property rights in the Software, associated documents and all parts thereof will be and remain vested in and be the absolute property of the owner of the copyright in the Software or associated documents as appropriate, which owner shall be entitled to enforce any of the terms of the Agreement relating to the Customer’s use of that Software, associated documents and all parts thereof, directly against the Customer.
15.1. All information or materials exchanged between Company and the Customer in connection with the Agreement, together with the copyright therein, will remain the property of Company, Company’s suppliers or the Customer as applicable and will be returned to the owning party on termination of the Agreement, if requested by such party.
15.2. Company grants to the Customer a non-exclusive, non-transferable licence to use, in object code form, any Software provided by Company or its suppliers solely in the United Kingdom in connection with the proper use of the Services. The Customer undertakes not to copy, alter, adapt, translate, software develop, decompile, license, sub-license, reverse engineer or resell any Software (or any part of the Software), unless expressly permitted to do so by Company or by relevant law. This licence will terminate on the termination of the Agreement (or any relevant part of the Agreement).
15.3. Company grants to the Customer a non-exclusive, non-transferable royalty free licence for the term of the Agreement to use copy and reproduce any information or materials provided by Company to the Customer under the Agreement to the extent necessary for the Customer to receive the benefit of the Services. The Customer must not alter, adapt, translate, develop, decompile, license, sub-license, reverse engineer or resell any such information or materials (or any part thereof), unless expressly permitted to do so by Company or relevant law.
15.4. In the event that the Customer is subject to a claim by a Third Party in respect of any alleged infringement of any trademark, patent, registered design or copyright arising from its normal use or possession of the Mobile Equipment, Hardware, Software, information or materials provided by Company then Company will indemnify the Customer in relation to such claim provided that the Customer promptly notifies Company of such claim, makes no admission in respect of such claim, the Customer seeks to mitigate the loss where it can do so without unreasonable inconvenience or cost, allows Company or its licensor or supplier to conduct all negotiations and proceedings (providing Company or its licensor or supplier with all reasonable assistance) and allows Company at Company’s own discretion and expense to modify or replace the Mobile Equipment, Hardware, Software, information or materials so as to avoid any continuing infringement. This indemnity does not apply to any such infringements caused by the Customer’s own breach of the terms of the Agreement or the operation or use of the Mobile Equipment, Hardware, Software, information or materials in conjunction with other equipment and software or Services not supplied by Company pursuant to the Agreement in which event the Customer shall indemnify Company in respect of any claims, proceedings and expenses arising from any such infringement by the Customer.
15.5. The Customer will not be entitled to and agrees not to:
15.5.1. use in the course of trade or otherwise in relation to any goods or services of the Customer any registered or unregistered trademark, logotype or abbreviation of the name of Company (or any of its suppliers including without limitation provider) or any part thereof so that any person might reasonably import a connection between those goods or services and Company (or any of its suppliers) or any part thereof;
15.5.2. register or attempt to register as a trade mark anything referred to in clause 15.5 of these General Conditions; and/or
15.5.3. authorise any Third Party to do anything referred to in clause 15.5.1 of these General Conditions.
15.5.4. The Customer further agrees not to infringe any copyright, or registered or unregistered trademark rights belonging to any Third Party in respect of any Hardware or Mobile Equipment.
End User Licensed Software
15.6. The Customer recognises that the Services may be dependent upon End-User Licensed Software and if the Customer does not accept the licence terms relating to any End-User Licensed Software, Company shall have no liability whatsoever for any failure to provide the Services to the Customer where the Services depend on the use of End-User Licensed Software.
15.7. Where the Customer accepts the terms of a licence in respect of any End-User Licensed Software, then those licence terms shall take precedence over any terms within the Agreement relating to End-User Licensed Software and shall exclusively comprise the Customer’s sole rights and remedies in respect of such End-User Licensed Software.
15.8. The Customer shall accept and comply with all licence terms required from time to time by any Third Party provider of any Software or materials as agreed between the relevant Third Party and provider.
16.0. Neither party will divulge Confidential Information to any Third Party except such of its employees, contractors, suppliers and agents as may need to know the same for the purposes of the implementation and/or performance of the Agreement and in each case who agree to be bound by the provisions of this clause 16.0.
16.1. The obligation of confidence set out in clause 16.0 of these General Conditions shall not apply to any material or information which is:
16.1.1. in the public domain (other than as a result of a breach of the Agreement); already known to the receiving party prior to the Commencement Date; lawfully received from a Third Party; or
16.1.2. required to be disclosed pursuant to the order of a court or other tribunal or regulatory authority of competent jurisdiction.
16.2. The obligation of confidence set out in this clause 16 shall apply in the period commencing on the Commencement Date and ending five years after the termination or expiry of the Agreement.
17.0. Subject to clauses 17.2 and 17.3 of these General Conditions, Company shall not be liable to the Customer in respect of any matter arising out of or in connection with the Agreement in contract or tort (including negligence) or otherwise for any loss (whether direct or indirect) of profit, business, revenue, anticipated savings, goodwill, business interruption, from wasted expenditure or any loss or corruption of data, or for any indirect or consequential loss or damage whatsoever.
17.1. Subject to clauses 17.0, 17.2 and 17.3 of these General Conditions, Company’s aggregate liability of any sort resulting from breach of contract or negligence, under any indemnity or otherwise arising in connection with the Agreement (whether to the Customer, any Customer Affiliate, Users or otherwise) shall be limited in respect of all claims arising in a Year to an amount equal to the Annual Agreement Value, where the "Annual Agreement Value" means the total Charges paid or payable by the Customer in the year prior to the year in which any claim arises (or where a claim arises during the first year of the Agreement, the Charges paid or payable up to the date on which the Customer’s right to take action in respect of the claim arose); and "Year" means the first, and each subsequent, consecutive period of 12 months of the Agreement commencing on the Commencement Date.
17.2. Nothing in the Agreement shall exclude or restrict the liability of Company for:
17.3. Nothing in the Agreement shall exclude or restrict the liability of either party in respect of any liability which cannot be excluded or restricted by law.
17.4. Nothing in this clause 17 shall apply to the payment of the Charges.
17.5. Subject to clauses 17.2 and 17.3 of these General Conditions, the express terms of the Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
Liability for Third Parties
17.6. Company shall not be liable for the acts or omissions of other providers of telecommunication services unless such other providers have been specifically engaged by Company as subcontractors or assignees in respect of the performance of Company’s obligations under the Agreement.
18.0. The Customer shall not assign or transfer the Agreement to any third party without the prior written consent of Company, such consent not to be unreasonably withheld or delayed.
18.1. Company may assign or transfer the Agreement to any third party and may subcontract the performance of all or part of the same, provided that Company shall remain liable for the acts and omissions of its subcontractors.
18.2. Company may assign or transfer to any third party and/or more than one third party a particular Service (rather than the Agreement as a whole). Where Company assigns or transfers to any third party a particular Service only, such assignment or transfer shall be of such part of the Agreement as relates and/or is generally applicable to the relevant Service being transferred or assigned. The Agreement shall, following such assignment or transfer continue in accordance with its terms as relate to or are generally applicable to the remaining Services.
19.0. The Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, proposals, understandings and agreements whether written or oral relating to the subject matter of the Agreement.
19.1. Each of the parties acknowledges and agrees that in entering into the Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in the Agreement. Nothing in this clause 19.0 shall, however, operate to limit or exclude any liability for fraudulent misrepresentation.
If any of the provisions of the Agreement become invalid, illegal or unenforceable, the validity or enforceability of the remaining provisions shall not in any way be affected or impaired. In such circumstances, the parties shall negotiate in good faith in order to agree the terms of a mutual satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision which is found to be invalid, illegal or unenforceable.
The failure or delay by either party to the Agreement to exercise or enforce any right, power or remedy under the Agreement shall not be deemed to operate as a waiver of any such right, power or remedy; nor shall any single or partial exercise by any party operate so as to bar the exercise or enforcement thereof or of any right, power or remedy on any later occasion.
22.0. In this clause 22:
22.0.1. "Applicable Laws" means (for so long as and to the extent that they apply to us) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law;
22.0.2. “Data Protection Legislation” means the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy;
22.0.3. “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK;
22.0.4. “UK Data Protection Legislation” means any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation; and
22.0.5. “Personal Data”, “Data Subject”, “Data Controller” and “Data Processor” shall have the meanings as defined in the Data Protection Legislation.
22.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 22 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
22.2. The parties acknowledge that for the purposes of the Data Protection Legislation:
22.2.1. Company is the Data Controller of Personal Data relating to individuals through whom it conducts its relationship with the Customer. Further information in this regard can be found in Company's Privacy Policy (which is available at www.communicateplc.com); and
22.2.2. the Customer is the Data Controller and Company is the Data Processor, acting on behalf of the Customer in respect of any other Personal Data supplied to Company by the Customer or on behalf of the Customer in the course of the relationship between the parties (whether under this Agreement or otherwise).
22.3. Clauses 22.4 to 22.6 shall apply to any Personal Data (and the processing thereof) where Company is the Data Processor, acting on behalf of the Customer, as detailed in clause 22.2.2.
22.4. The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Company for the duration and purposes of this Agreement.
22.5. Company shall, in relation to any Personal Data processed in connection with the performance by it of its obligations under this Agreement:
22.5.1. process that Personal Data only on the written instructions of the Customer unless Company is required by Applicable Laws to otherwise process that Personal Data. Where Company is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Company from so notifying the Customer;
22.5.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
22.5.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
22.5.4. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
22.5.5. assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
22.5.6. notify the Customer without undue delay on becoming aware of a Personal Data breach;
22.5.7. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
22.5.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 22.
22.6. The Customer does not consent to Company appointing any third party processor of Personal Data under the Agreement.
23.0. Neither party shall be deemed in default or liable to the other party for any matter whatsoever for any delays in performance or from failure to perform or comply with the terms of the Agreement due to any cause beyond that party’s reasonable control including, without limitation, acts of God, acts of Government or other competent regulatory authority, telecommunications network operators, war or national emergency, riots, civil commotion, fire, explosion, flood, lightning, extremely severe weather, epidemic, lock-outs, strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce).
24.0. Delivery of the Mobile Equipment, Hardware and/or End-User Licensed Software (as applicable) to the Customer may be subject to export control law and regulations. Company does not represent that any necessary approvals and licences have been obtained or will be granted.
24.1. The Customer agrees to comply with any applicable export or re-export laws, regulations, prohibitions or embargoes of any country, including obtaining written authority from any relevant licensing authority where necessary.
24.2. In the event that the Customer procures Mobile Equipment, including tablet devices or similar computer technology from Company, the Customer agrees that in entering into the Agreement the Customer accepts the terms of the following end-user undertaking: The Customer certifies that it or will be the end-user of the Mobile Equipment and further certifies that it shall use the Mobile Equipment only for the purposes of allowing its employees to send, receive, store and process data and voice Mobile Services in order to perform their every day contractual duties; that the Mobile Equipment will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that the Mobile Equipment will not be re-exported or otherwise re-sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; and that the Mobile Equipment, or any replica of them, will not be used in any nuclear explosive activity or un-safeguarded nuclear fuel cycle activity; and agrees to sign a formal "End-User Undertaking" in a format specified by the United Kingdom Department of Trade and Industry if requested to do so by Company.
Nothing in the Agreement shall create, or be deemed to create, a partnership or joint venture between the parties and nothing in the Agreement shall be construed to appoint one party as the distributor, dealer or agent of the other.
Any notice or other communication required or permitted under the Agreement to be given in writing shall be given in writing to the address of the recipient stipulated herein or as notified from time to time and will be deemed to have been given or made: when delivered personally; or, if properly addressed and posted by first class mail in the United Kingdom within two Working Days of posting: or, if sent by facsimile upon being sent; or, if sent by e-mail or other electronic means upon such communication being acknowledged as having been received.
27.0. Except as otherwise explicitly set out in the Agreement, a person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement. For the avoidance of doubt, Customer Affiliates shall have no rights to enforce any term of the Agreement.
28.0. The Agreement includes the following documents:
28.1. In the event of any conflict between provisions of the documents making up the Agreement, the order of precedence shall be as set out in clause 28.0 of these General Conditions (in order of decreasing precedence) unless explicitly stated otherwise.
29.0. When the Customer applies for Services, Company may check the following records about the Customer and the Customer’s business partners:
29.0.1. Company’s own records;
29.0.2. business records at credit reference agencies ("CRAs") including both public (including the electoral register) and fraud prevention information. When CRAs receive a search from Company they will place a search footprint on the Customer’s business credit file that may be seen by other lenders;
29.0.3. records held by fraud prevention agencies ("FPAs"); and
29.0.4. if the Customer contact is a director, Company may seek confirmation, from CRAs that the residential address that is provided is the same as that shown on the restricted register of directors” usual addresses at Companies House.
29.1. Company may also make checks such as assessing the Customer’s application for Services and verifying identities to prevent and detect crime and money laundering. Company may also make periodic searches at CRAs and FPAs to manage the Customer’s Company account.
29.2. Company will send information on the Customer’s applications, Company account and how the Customer manages its account to CRAs which may record such information, including information on the Customer’s business and its proprietors. The CRAs may create a record of the name and address of the Customer and its proprietors if there is not one already.
29.3. If the Customer does not pay the Charges when they become due and payable, CRAs will record the outstanding debt which shall remain on file for six years after they are closed (whether by settlement or default). Such records may be supplied to other organisations by CRAs and FPAs to perform similar checks and to trace the Customer’s whereabouts and recover debts owed by the Customer.
29.4. If the Customer gives Company false or inaccurate information and Company suspect or identify fraud Company will record this and may also pass this information to FPAs and other organisations involved in crime and fraud prevention.
29.5. Company and other organisations may access and use from other countries the information recorded by fraud prevention agencies.
29.6. Customer data may also be used for other purposes for which the Customer or any User gives its specific permission or, in very limited circumstances, when required by law or where permitted under the terms of the Data Protection Act 1998. To read the full details of how data may be used please visit our Company Web Site.
29.7. The Customer can contact the CRAs currently operating in the UK, including CallCredit (Consumer Services Team, PO Box 491, Leeds, LS3 1WZ or call 0870 0601414): Equifax PLC, (Credit File Advice Centre, PO Box 3001, Bradford, BD1 5US; 0870 010 0583; www.myequifax.co.uk); and Experian (Consumer Help Service, PO Box 8000, Nottingham, NG80 7WF; 0844 4818000; www.experian.co.uk). The information they hold may not be the same. They will charge a small statutory fee for access to their Records. Details of the relevant fraud prevention agencies are available from provider on request.
The Agreement, and any issues or disputes of whatever nature arising out of or in any way relating to it or its formation (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation, or otherwise) shall be governed by and construed in accordance with the laws of England and Wales. The Parties submit to the exclusive jurisdiction of the courts of England and Wales.
