Terms & Conditions

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Purchase of Services & Equipment – T’s & C’s

MID Digital Solutions Limited

Conditions

• application and BASIS OF CONTRACT

• These Conditions will apply to the supply and (where applicable) the purchase of the Equipment and Services, provided to (i) the Customer (as identified in the Commercial Details) by (ii) the Supplier, MID Digital Solutions Limited incorporated in England and Wales with the registration number: 13442975 registered address: MID House, Stakehill Industrial Estate, Middleton, Manchester, M24 2RW.  All of these Conditions shall apply to the supply of both Equipment (where applicable) and Services except where application to one or the other is specified.
• The Order constitutes an offer by the Customer to purchase the Services and Equipment (as applicable) in accordance with these Conditions.  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.  The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
• The Supplier’s employees, representatives and agents are not authorised to make any representations concerning the Equipment or the Services unless confirmed by the Supplier in writing. In entering into the Contract, the Customer acknowledges that it does not rely on any such representations, which are not so confirmed.
• Acceptance of the Order is at the Supplier’s discretion and subject to the availability of the Equipment, the entering into of the Equipment Lease (where applicable)  and the outcome of any installation and site surveys and shall only be deemed to be accepted when the Supplier countersigns the Contract at which point and on which date the Contract shall come into existence (Commencement Date). 
• Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
• Where the Customer has entered into an Equipment Lease then:-

• the Equipment will be provided to the Customer by the Leasing Company subject to the terms of the Equipment Lease and not by the Supplier;
• The Supplier has no liability or responsibility for the performance of the Leasing Company;
• Without limitation, the Supplier has no responsibility or liability for the Equipment, its performance , provision or supply;
• It is a condition of this Contract that the Customer has entered into the Equipment Lease on or by the date of this Contract and has provided a true copy thereof to the Supplier; and
• The Supplier provides Services only (and not Equipment), the Contract will be construed to that effect and nothing in the Contract will make the Supplier liable for the provision or performance of the Equipment.

• EQUIPMENT  – This CLAUSE 2 DOES NOT APPLY WHERE THE CUSTOMER HAS ENTERED INTO AN EQUIPMENT LEASE

• The Equipment is described in the Proposal.  The Supplier reserves the right to amend the specification or description of the Equipment if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer as soon as reasonably possible in any such event.
• The risk in the Equipment shall pass to the Customer on delivery.
• Where the Supplier has agreed to sell and the Customer has agreed to purchase the Equipment for a single payment at the start of the Contract then title to the Equipment shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Equipment.
• Where the Supplier has agreed to accept payment for the Equipment by way of instalments over the term of the Contract as part of the Service Charges then title shall only pass to the Customer if:

• the Supplier has received in full and in cleared funds payment of all Service Charges (and any other sums) owing from the Customer throughout the term of the Contract;
• the Contract has not terminated before the end of the Initial Contract Period (or any extension thereto) (for any reason); and
• the Customer is not in breach of any of the terms of the Contract.

• Provided that the requirements of clause 2.4 have been met then such title to the Equipment as the Supplier had on the Commencement Date shall transfer to the Customer automatically upon receipt by the Supplier in full and in cleared funds of the final instalment of the Service Charge. The Equipment shall transfer to the Customer in the condition and at the location in which it is found on the date of transfer.
• In each case, until title to the Equipment has passed to the Customer, the Customer shall:

• maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price on the Supplier’s behalf from the date of delivery;
• not, without the prior written consent of the Supplier, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
• not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify the Supplier and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Supplier on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
• notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(d); and
• give the Supplier such information as the Supplier may reasonably require from time to time relating to:

• the Equipment; and
• the ongoing financial position of the Customer.

• At any time before title to the Equipment passes to the Customer, the Supplier may require the Customer to deliver up all Equipment in its possession at the Customer’s cost and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment is stored in order to recover it.

• DELIVERY OF EQUIPMENT – THIS CLAUSE 3 DOES NOT APPLY WHERE THE CUSTOMER HAS ENTERED INTO AN EQUIPMENT LEASE

• The Supplier shall deliver the Equipment to the location set out in the Commercial Details or such other location as the parties may agree in writing (Customer Premises) on or around the date notified by the Supplier for delivery and/ or instalment of the Equipment.  Any dates quoted for delivery of the Equipment are approximate only, the time of delivery is not of the essence and any delay in meeting delivery, installation or performance dates shall not give rise to a right to cancel the Contract or to claim damages.
• Delivery of the Equipment shall be completed on the arrival of the Equipment at the Customer Premises.  The Supplier may terminate the Contract and charge the Customer for all associated costs or store the Equipment and charge the Customer for the costs of storing the Equipment (including insurance costs) if the Customer fails to take delivery of the Equipment and/ or permit entry to the Supplier (or its representatives) to instal the Equipment.

• warranties

• In relation to the Equipment, the Supplier shall (where it supplies the Equipment) pass on the benefit of any unexpired warranties it receives from the manufacturer of the Equipment and, where the Equipment is provided by the Leasing Company will use reasonable endeavours to do so (in both cases the Warranty), the length of which shall be as stated in the relevant Warranty and is hereafter referred to as the Warranty Period.
• If during the relevant Warranty Period, the Customer notifies the Supplier in writing of any inherent defect in the Equipment arising under normal use in consequence of which the Equipment fails to conform in all material respects with the specification, the Supplier shall use reasonable efforts to make a claim under the Warranty and obtain the remedy offered by the relevant manufacturer for the Customer.  The Customer may be required to make a claim under the Warranty directly, and the Supplier shall notify the Customer that this is the case when the Customer contacts the Supplier to make a claim under the Warranty. 
• Where the relevant Equipment is a mobile phone and a repair is not free of charge under the relevant Warranty, has fallen out of Warranty or where the fault is caused by any of the factors or circumstances outlined in clause 4.4, a quotation shall be provided for the cost of repair with an approved 3^rd party repair facility. The Supplier (or its approved provider) shall carry out diagnostic work to determine the scope of the repair work and shall be entitled to charge a fee of £17.50 plus VAT (or such other amount as may be notified by the Supplier from time to time)) for the diagnostic work.  The charge for the diagnostic work shall be paid by the Customer upon the Supplier’s written demand and the Supplier shall not be required to provide a quotation for repair work and/ or undertake any repair work until the charge for the diagnostic work has been paid in full by the Customer.
• Where the defect arises due to (i) physical damage (whether deliberate or negligent); (ii) liquid ingress; (iii) the Customer failing to follow the Supplier’s and/ or the manufacturer’s instructions as to the installation, use or maintenance of the Equipment or (if there are none) good practice regarding the same; (iv) the Customer attempting to alter, repair, or tamper with the relevant Equipment without the written consent of the Supplier, (v) the Equipment being installed, used or stored in inappropriate conditions; or (vi) the Customer committing any other act or omission which, under the terms of the Warranty invalidates that Warranty, then the Warranty shall be invalidated and the Customer shall be wholly responsible for the cost of repair or replacement.

• SUPPLY OF SERVICES

• The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects however the Supplier is not able to guarantee fault-free performance. Due to factors outside the Supplier’s control such as use of and access to third party content and services and shared use of networks, internet access availability and speed may vary from time to time. In addition, the speed and limitations of the Customer’s equipment and infrastructure may affect the transmission speed that the Supplier can provide. The Supplier cannot provide a fully guaranteed end to end Service to be available at all times and does not warrant, represent or guarantee in any way whatsoever that the Services will be virus-free, worm-free, spam-free or inaccessible to malicious code or malignant third parties.
• The Additional Terms Relating to Unified Communications Cloud Telephony Services set out in Schedule 3 shall also apply to the supply of the Cloud Telephony Services where applicable.
• The Additional Terms Relating to Connectivity Services set out in Schedule 4 shall also apply to the supply of the Connectivity Services where applicable.
• The Additional Terms Relating to Mobile Services set out in Schedule 5 shall also apply to the supply of the Mobile Services where applicable.
• The Supplier shall use reasonable commercial endeavours to meet any performance dates for the Services specified in the Proposal, but any such dates shall be estimates only, time shall not be of the essence for the performance of the Services and (without limitation) the Customer will have no right to terminate as a result of any delay by the Supplier in meeting any performance dates. Without limitation, the Supplier shall not be liable for any delay or failure to provide the Services (or any of them) caused by any default of the Customer or any Force Majeure Event. 
• The Customer agrees, acknowledges and accepts that the Supplier may be reliant on third party suppliers and in some cases require planning consents, wayleaves or rights of way for installations and to provide the Services and any delays caused by such matters are beyond the control of the Supplier and accordingly the Supplier shall have no liability for such delays and the Customer will not commit to any work or activities that are dependent on deadlines being met by the Supplier.
• The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
• The Customer understands and agrees that the Supplier may withdraw any offer to provide or cease to provide or discontinue providing certain third-party Equipment, products or the Services without liability to the Customer for which specifications and discontinuances are subject to change at the election of such third party provider without notice, the Supplier shall endeavour to provide 30 days’ notice of such discontinuances or changes where possible.
• The Customer understands and agrees that the Supplier may withdraw the offer to provide the Equipment (if applicable) and the Services and terminate the Contract (where already formed) without liability to the Customer where:

• a site survey finds that a site is not suitable or safe for the provision of the Services;
• the Supplier (or its nominated representatives) finds that additional work will be required to facilitate the installation of the Equipment and/ or the provision of the Services and the Customer does not agree to pay the additional costs or charges (including but not limited to any construction charges) required to enable the Supplier to provide the Services;
• commission testing fails and the Supplier (or its nominated representatives) cannot determine the cause or rectify the fault after using reasonable commercial endeavours;
• the Customer fails to enter into the Equipment Lease or the Equipment is not provided by the Leasing Company for any reason. 
• For the avoidance of doubt the rights to withdraw an offer and/or to terminate the Contract set out in clause 5.9 apply to and are exercisable by the Supplier only

• CUSTOMER’S OBLIGATIONS

• The Customer shall:

• ensure that the terms of the Order and any information it provides to the Supplier are complete and accurate;
• co-operate with the Supplier in all matters relating to the Services;
• provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
• provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
• prepare the Customer Premises and its own equipment and infrastructure for the supply of the Services;
• be and at all times remain responsible for the installation, configuration, performance, maintenance and use of the Services beyond the Service Demarcation Point and for the security, suitability, maintenance, compatibility, state and conditions of its own equipment (including but not limited to any hardware, cabling, handsets, headset and other equipment) used in connection with the Services;
• be and at all times remain responsible for the provision, maintenance and upkeep of an environment suitable for the provision of the Services.  For the avoidance of doubt, this includes adequate and consistent electrical power as required for the supply of the Services;
• provide the Supplier with the contact details of employees or other representatives with sufficient authority and capacity to liaise with the Supplier and agree any changes to the Services
• obtain and maintain all necessary licences, permissions and consents which may be required for the Services (including those required under any Equipment Lease) before the date on which the Services are to start;
• only use the Services for lawful purposes and any material transmitted through the Services, or use of any part of them, in violation of any applicable law or regulation, which is otherwise defamatory, discriminatory, or derogatory is prohibited;
• comply with all applicable laws, including health and safety laws and the acceptable use policies or other lawful contractual requirements of any third party suppliers or subcontractors or the Supplier;
• keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
• comply with the Equipment Lease (where applicable)
• take all reasonable steps to keep any password issued or created to access the Services private and confidential and ensure that it does not become known to other persons. If the password becomes known to any other person, the Customer will immediately inform the Supplier and the password will immediately be changed. The Supplier may change the Supplier’s password from time to time at their discretion without prior notice; and
• comply with any additional obligations or reasonable instructions notified by the Supplier from time to time in relation to the supply of the Services.

• If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

• without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
• the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 6.2; and
• the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

• CHARGES AND PAYMENT
• The price for Equipment (where applicable) and the Service Charges:

• shall be the amounts set out in the Order or, if no price is quoted, the price set out in the Proposal subject to any increases made in accordance with this Contract; and
• shall (unless otherwise set out in the Proposal), be exclusive of all costs and charges of packaging, insurance and transport of the Equipment which shall be paid by the customer in addition, at the point of placing the Order for the Equipment.

• The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
• The Supplier reserves the right to:

• increase the Service Charges on or at any time following the expiry of the Initial Contract Period by notice in writing to the Customer;
• increase the Services Charges at any time (including during the Initial Contract Period) with immediate effect where the cost of providing the Services to the Supplier has increased due to any reasons beyond the control of the Supplier including but not limited to where any third party supplier has increased its costs or a statutory or regulatory change results in increased costs to the Supplier;
• increase the Services Charges at any time (including during the Initial Contract Period) with immediate effect where the Customer’s requirements change or a Customer Default results in increased costs to the Supplier;
• increase the price of the Equipment (where applicable) , by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to the Supplier that is due to:

• any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
• any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the Equipment Specification; or
• any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Equipment.

• In some cases the price of Equipment may be calculated by the Supplier based on the assumption that the  Customer will enter into agreements (including Airtime Agreements) with third party suppliers (including MNO’s) for a minimum period (for example where a discount and/or the price of Equipment is linked to/conditional on the completion of such a minimum period). Where this is the case, and the Customer terminates its agreement with the relevant third party supplier before the relevant minimum period has expired the Supplier reserves the right to increase the price of the Equipment or make other charges to reflect any increased cost to or loss/expense suffered by the Supplier as a result of such early termination.
• In respect of Equipment (where applicable), the Supplier shall invoice the Customer either:

• on or at any time after delivery where the Customer is making a single capital payment for the Equipment; or
• as part of the monthly Services Charges.

• Unless otherwise set out in the Proposal, in respect of Services, the Supplier shall invoice the Customer:

• for any one-off costs (as identified in the Proposal and which may include installation, configuration, training, and number port charges or otherwise in this Contract) on or at any time after the Commencement Date; and
• for other ongoing Service Charges (as identified in the Proposal), monthly in advance.

• The Customer shall provide its bank with a compliant and complete Direct Debit Instruction (DDI) permitting the Supplier to collect the Service Charges via Direct Debit and accordingly the Supplier shall be authorised to collect the Service Charges via Direct Debit.  The Customer agrees not to suspend or cancel the Direct Debit Instruction (DDI) at any time during the term of the Contract without the Supplier’s consent.
• The Customer agrees that it is liable for any charges on the Customer’s account regardless of whether the Customer or anybody else (with or without the Customer’s permission) incurs those charges. For the avoidance of doubt, the Supplier considers anyone who has access to the Customer’s premises or has been given access to the Services (whether deliberately or by default or weaknesses in the Customer’s security) to be within the Customer’s control and the Customer would be liable for those charges. If the Customer becomes aware of any fraud by someone else, it must immediately notify the Supplier. The Customer shall be deemed to have given permission to use the Customer’s account and add charges on to the Customer’s account to any other individual or party to whom they have divulged any PINs or passwords relevant to the Services.
• All other invoices raised by the Supplier which are not payable by Direct Debit shall be paid by the Customer:

• within 14 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
• in full and in cleared funds to a bank account nominated in writing by the Supplier,

and time for payment shall be of the essence of the Contract.

• All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.
• If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12, the Customer shall indemnify the Supplier against all losses, costs, charges, expenses and fees (including court costs, debt collection and legal fees) in recovering the overdue amount from the Customer and shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.10 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
• All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
• INTELLECTUAL PROPERTY RIGHTS
• All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier or its relevant licensor.
• At the request and expense of the Supplier, the Customer shall do all such things and sign all documents or instruments reasonably necessary to enable the Supplier to obtain, defend and enforce the Supplier’s rights (or those of its licensor) in any Intellectual Property Rights in or arising out of or in connection with the Services.
• DATA PROTECTION
• In this Clause, the following terms shall have the following meanings:

• “controller”, “processor”, “data subject”, “personal data” and “processing” (and “process”) shall have the meanings given in the GDPR; and
• “Applicable Data Protection Law” shall mean:  (a) the General Data Protection Regulation ((EU) 2016/679) (GDPR) as implemented into UK law from time to time; (b) any UK laws, regulations and secondary legislation implementing or amending GDPR  including without limitation the UK GDPR and the Data Protection Act 2018; and (c) any other applicable law relating to personal data to which Customer or Supplier is subject.

• The Customer, as controller, appoints the Supplier as a processor to process the personal data that is the subject of the Contract (the Data).  Each party shall comply with the obligations that apply to it under Applicable Data Protection Law. Without prejudice to the generality of this clause 9.2, the Customer will ensure that it has all necessary consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer’s behalf.
• The Supplier shall process the Data as a Supplier as may be required to perform its obligations under the Contract and as set out in Schedule 6 and in accordance with the documented instructions of Customer (the Permitted Purpose), except where required by any United Kingdom law to do otherwise. 
• The Supplier shall not transfer the Data outside of the European Economic Area (which for the avoidance of doubt is deemed to include the United Kingdom) unless: (i) it has the Customer’s documented instructions to do so; (ii) it takes such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law; or (iii) it is required to do so by any applicable United Kingdom law.
• The Supplier shall ensure that any person that it authorises to process the Data (including Supplier’s staff, agents, suppliers and subcontractors) (an Authorised Person) shall be subject to a duty of confidentiality (whether a contractual duty or a statutory duty or otherwise).
• Taking into account (at its reasonable discretion) the risks, costs and other factors required by Article 32 GDPR the Supplier shall implement such reasonable technical and organisational measures as it reasonably believes are required to protect the Data from (i) accidental or unlawful destruction, (ii) accidental loss, alteration, unauthorised disclosure or access, and (iii) any other breach of security (each of (i), (ii) and (iii), a Security Incident).  Such measures may include as it reasonably determines:

• the pseudonymisation and encryption of personal data;
• the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
• the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
• a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

• The Customer consents to the Supplier engaging third party suppliers and sub-contractors to process the Data provided that: (i) Supplier provides at least 7 days’ prior notice of the addition or removal of any sub-contractor; (ii) Supplier imposes data protection terms on any sub-contractor it appoints that protect the Data to the same standard provided for by this Clause; and (iii) Supplier remains liable for any breach of this Clause that is caused by an error or omission of its sub-contractor. If Customer refuses to consent to Supplier’s appointment of a third party sub-contractor on reasonable grounds relating to the protection of the Data, then either the Supplier will not appoint the sub-contractor or the Supplier may elect to suspend or terminate this Agreement without penalty.
• The Supplier will provide the Customer with such reasonable assistance at Customer’s written request and at the Customer’s expense as the Customer may reasonably require to allow it to comply with Article 32 GDPR.
• The Supplier shall provide reasonable assistance (including by appropriate technical and organisational measures) to the Customer (at the Customer’s expense) to enable the Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data.   
• If the Supplier believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform the Customer and provide the Customer with reasonable assistance (at Customer’s expense) to allow the Customer to conduct a data protection impact assessment and, if necessary, consult with its relevant data protection authority.
• Upon becoming aware of a Security Incident, Supplier shall inform Customer without undue delay and shall provide such cooperation as the Customer may reasonably require (and at the Customer’s expense) including to allow the Customer to fulfil its data breach reporting or communication obligations under (and in accordance with the timescales required by) Applicable Data Protection Law. Supplier shall further take such measures and actions as are (in its reasonable discretion) necessary to remedy or mitigate the effects of a Security Incident and shall keep Customer up-to-date about material developments in connection with the Security Incident.
• Upon termination or expiry of this Agreement, Supplier shall (on Customer’s written instructions) destroy or return to Customer all Data (including all copies of the Data) in its actual possession or control (including any Data subcontracted to a third party for processing).  This requirement shall not apply to the extent that Supplier is required by any UK law to retain some or all of the Data.

• Supplier shall permit Customer (or its nominated auditor) to audit Supplier’s compliance with this Clause. Customer must give Supplier not less than 35 days’ prior written notice of its intention to conduct such an audit, must conduct the audit during normal business hours, must procure that it and its representatives enter into any reasonable confidentiality undertakings required by the Supplier and must take all reasonable measures to prevent disruption or harm to Supplier’s operations. Customer will not exercise its audit rights more than once in any twelve (12) calendar month period and will be responsible for all reasonable costs incurred by Supplier in connection with the audit.
• The Supplier will inform the Customer if it believes any instruction from the Customer relating to the Data breaches Applicable Data Protection Law.

• CONFIDENTIALITY
• Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.
• Each party may disclose the other party’s confidential information:

• to its employees, officers, representatives, contractors or 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 the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
• as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

• 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 the Contract.
• LIMITATION OF LIABILITY
• The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

• The Supplier will not be liable in any way:
• for any loss or damage which is caused to the Customer’s own equipment arising as a result of its use with the Services;
• to provide any remedies, damages, credits or compensation over and above any amounts or remedies that the Supplier is able to recover from any third party manufacturer of the Equipment, Leasing Company or third party supplier of the Services;
• for any Equipment provided by a Leasing Company;
• for any losses caused by a third party supplier where the Customer would be able to recover its losses (or a reasonable proportion thereof) directly from such third party supplier;
• for any adverse effects on the Services and/ or losses or other liabilities incurred or suffered by the Customer caused by or in connection with the Customer’s use of the Services other than in such manner as agreed by the Supplier and/ or any interference by the Customer or any third party which is not in accordance with the standard use of the Equipment or Services or following the Supplier’s or relevant manufacturer’s written instructions;
• if the Customer is not able to use the Services because the Customer equipment (for example, any PC, modem, network interface card, printer, switch, local area network or other equipment) does not work properly, is not compatible with the system, does not conform to the relevant standard or does not meet the minimum specifications or because of faults in any third party networks over which the Supplier has no responsibility;
• for any temporary unavailability of Services due to planned maintenance, emergency maintenance or loss of use outside the reasonable control of the Supplier.

• Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

• death or personal injury caused by negligence;
• fraud or fraudulent misrepresentation;
• breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
• defective products under the Consumer Protection Act 1987.

• Subject to clause 11.3, the Supplier’s total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
• In clause 11.4:

• cap. The cap is one hundred per cent (100%) of the total charges in the contract year in which the breaches occurred;
• contract year. A contract year means a 12-month period commencing with the Commencement Date or any anniversary of it; and
• total charges. The total charges means all sums paid by the Customer and all sums payable under the Contract in respect of Equipment and Services actually supplied by the Supplier, whether or not invoiced to the Customer.

• This clause 11.6 sets out specific types of loss which are wholly excluded and in respect of which the Supplier shall have no liability:

• loss of profits;
• loss of sales or business;
• loss of agreements or contracts;
• loss of anticipated savings;
• loss of use or corruption of software, data or information;
• loss of or damage to reputation and goodwill; and
• indirect or consequential loss.

• The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
• This clause 11 shall survive termination of the Contract.
• TERM AND TERMINATION
• The Contract shall come into effect on the Commencement Date and continue (unless terminated earlier in accordance with its terms) until the expiry of the Initial Contract Period whereupon it shall continue, subject to termination by either party on not less than 30 days’ written notice (such notice not to take effect before the end of the Initial Contract Period). 
• Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

• the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
• the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
• the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
• the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

• Without affecting any other right or remedy available to it, the Supplier may terminate or suspend the Contract (or the provision of a particular Service) with immediate effect by giving written notice to the Customer if:

• the Customer fails to pay any amount due under the Contract on the due date for payment;
• where applicable, the Customer breaches  the Equipment Lease;
• required due to a regulatory or statutory change;
• if the Supplier (or any relevant third party supplier) is obliged to comply with the order, instruction, or request of a court, government, agency, emergency service organisation, or other competent administrative or regulatory authority, requiring suspension to the Services;
• if the Customer’s use of the Services has or may damage or disrupt the proper functioning of the infrastructure and/ or equipment used to provide Services to the Supplier’s (or its third party providers’) other Customers;
• the Supplier has reason to believe that the Customer has provided the Supplier with false, inaccurate or misleading information either for the purpose of obtaining the Services or at any time during the provision of the Services;
• the Supplier or its agents or third party suppliers need to carry out any maintenance, repairs or improvements to any part of the Services;
• the Supplier believes (acting reasonably) that the Customer or another person associated with the Customer has committed, or may be committing, any fraud against the Supplier or against any other person or organisation by using the Services;
• the Customer or anyone the Customer authorises to deal with the Supplier on the Customer’s behalf acts in a way towards the Supplier’s staff,  third party suppliers or agents which the third party suppliers reasonably considers to be inappropriate;
• the Customer is in breach of any applicable Acceptable Use Policy; or
• there is a change of Control of the Customer.

• If the Supplier suspends the Services due to a breach of the Contract by the Customer or in accordance with its rights under clause 12.3 then without affecting any other right or remedy available to it, the Supplier may charge a reconnection fee to the Customer in addition to any outstanding amounts on the Customer’s account before any suspension of Service is lifted. Should the reconnection require a service call out the Supplier reserves the right to levy an additional charge to the Customer.
• Without affecting any other right or remedy available to it, the Supplier may also suspend the supply of Services or all further deliveries of Equipment under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
• CONSEQUENCES OF TERMINATION
• On termination of the Contract:

• the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Equipment supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
• the Customer shall return all of the Supplier Materials and (where applicable) any Equipment which has not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

• Save where the Customer has validly terminated the Contract in accordance with clause 12.2, upon termination of the Contract for any other reason, the Customer shall pay to the Supplier upon demand, the Termination Fees.
• Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
• Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
• FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control, which shall include but is not limited to 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 or public authority, including without limitation 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 (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party), non-performance by suppliers or subcontractors or other third parties (other than by companies in the same group as the party seeking to rely on this clause) and interruption or failure of utility service (a Force Majeure Event). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 16 weeks, the party not affected may terminate the Contract by giving 30 days’ written notice to the affected party.

• GENERAL
• Assignment and other dealings

• The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without notice to the Customer. 
• The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

• Notices.

• Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

• delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
• sent by email to the correct address provided by the other party (as may be updated from time to time by notice in writing).

• Any notice shall be deemed to have been received:

• if delivered by hand, at the time the notice is left at the proper address;
• if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
• if sent by email, provided that the sender does not recall the message nor receive notification of non-delivery, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 15.2(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.  If the sender receives notification of delayed delivery (an “out of office”) then delivery shall be deemed to have occurred at the time and on the date stated in the notice.

• 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.

• Severance. If any provision or part-provision of the Contract 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 the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 15.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
• Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
• No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
• Entire agreement.

• The Contract 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 acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
• Nothing in this clause shall limit or exclude any liability for fraud.

• Third party rights.

• Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
• The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

• Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
• Dispute Resolution.

• both Parties shall use reasonable endeavours to resolve any dispute under this Contract. If any dispute arises in connection with this Contract, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.
• The payment of the Service Charges, the price of the Equipment and the Termination Fees shall not be included in the dispute resolution process, and nothing in this Contract shall prevent the Supplier issuing proceedings against the Customer for non-payment of the Service Charges, the price of the Equipment or the Termination Fees, howsoever incurred.

• Governing law. The Contract 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.
• Jurisdiction. 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 the Contract or its subject matter or formation.
• INTERPRETATION
• The following definitions and rules of interpretation apply in these Conditions.

DEFINITIONS:

• Interpretation:

• A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
• A reference to a party includes its successors and permitted assigns.
• A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
• 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.
• A reference to writing or written includes email but not fax.
• The provisions set out in the Schedules shall prevail and take precedence over any contradictory or conflicting terms set out in clauses 1 to 15 (inclusive) of the Conditions.

Termination fees

SCHEDULE 2

TERMINATION FEES

• Where a Spend Forecast is specified in the Order, the Termination Fee shall be either:
• the difference between the Spend Forecast and any termination charges paid to the MNO under the Airtime Agreement; or
• where there are no termination charges imposed by the MNO, the difference between the Spend Forecast and the total Service Charges and cost of Equipment actually paid by the Customer to the Supplier for the Services (as determined by the Supplier).

• If a Spend Forecast is not specified in the Order, then the Customer shall pay:
• the periodic fees for the Services (usually monthly) as outlined in the Order, multiplied by the number of months remaining in the term of the Contract; plus
• the Customer shall return the Subsidy Value or any proportion of the Subsidy Value already paid in advance by the Supplier to the Customer and where Equipment has been provided as part of its Subsidy, the Customer may also be required to pay for the Equipment.

Unified Communications & Telephony T’s & C’s

SCHEDULE 3

ADDITIONAL TERMS RELATING TO UNIFIED COMMUNICATIONS CLOUD TELEPHONY SERVICES

• CUSTOMER’S OBLIGATIONS

• If the Customer’s Unified Communications Cloud Telephony Services includes Ethernet or Assured access then, unless the customer has ordered an installation of the router,  it is the Customer’s responsibility to install the router at the Customer Premises or such other sites where this is required and neither the Supplier nor its subcontractor shall bear any liability for any delay the Customer’s failure to install may cause.
• Where the Supplier agrees the Customer may use/supply its own router for any part of the Unified Communications Cloud Telephony Services then the Customer agrees that all responsibility and liability for such equipment remains with the Customer. Should the Supplier or its subcontractor visit the Customer Premises or such other relevant sites due to a fault which is later found to be caused by equipment not provided by the Supplier then the Supplier will charge the Customer for such site visit and any additional costs incurred as a direct result. Use of the Customer’s own router(s) will affect the Demarcation Point of the Unified Communications Cloud Telephony Services.
• The Supplier does not issue any IP address to be used with the Unified Communications Cloud Telephony Services. Access to and use of this address is controlled by the internet authorities and its use is subject to any rules which they may prescribe. The Supplier reserves the right to withdraw or change this address if for any reason the address ceases to be available.
• The Supplier will provide you with access to a third party internet portal account through which the Unified Communications Cloud Telephony Services can be controlled online. The Supplier shall use reasonable endeavours to maintain (but does not guarantee) access to such account 24 hours in every day on every day of the year and shall not be liable for any losses caused by any restrictions in such access.
• If the Customer requests and the Supplier agrees to upgrade the Customer’s bandwidth of the underlying access then additional charges will apply and the Supplier will advise you of these at the time.
• The Unified Communications Cloud Telephony Services supports 999/112 public emergency call services and such calls will be routed to the national emergency call handling agents. However these services do not operate in the same way as PSTN fixed line 999/112 public emergency call services and connection to such services may not be possible in the event of a service outage caused by loss of connectivity to the internet for whatever reason. In such circumstances the Customer should use a separate line to make the emergency call. Furthermore it may on occasions not be possible for emergency services personnel to identify the Customer’s location and telephone number so this information should be stated promptly and clearly by you when making such a call.
• Where the Supplier agrees that the Customer may use its existing or other new access circuits (including but not limited to broadband, Ethernet, leased line etc) not provided by the Supplier then it is the Customer’s responsibility to ensure such access meets the necessary requirements and functionality as defined in the “non-Supplier access Customer responsibilities document”, a copy of which is available on request. The Customer’s failure to meet such requirements and functionality may result in quality and set up issues or may mean the Unified Communications Cloud Telephony Services will not work. Where the Supplier does not provide the access, the Customer agrees that all responsibility and liability for such access remains with the Customer. Should the Supplier or its subcontractor visit the Customer Premises or other relevant site due to a fault which is later found to be caused by access not provided by the Supplier then the Supplier will charge the Customer for such site visit and any additional costs incurred as a direct result. Use of the Customer’s own access will affect the Demarcation Point of the Unified Communications Cloud Telephony Services.
• Where the Supplier agrees that the Customer may use a third party to install the Unified Communications Cloud Telephony Services then the Customer agrees to indemnify the Supplier from any direct or indirect claims or losses, financial or otherwise, that the Customer may incur as a result of such installation by a third party. Use of a third party installer will affect the Demarcation Point of the Unified Communications Cloud Telephony Services.
• At the end of each Business Day, if requested by the Supplier, the Customer agrees to sign off for the work carried out that day by the Supplier or its subcontractor. In the absence of an authorised representative then the Customer agrees that Supplier sign off shall have equivalent effect as if the Customer had signed it off. Such sign off shall not constitute full acceptance of the Unified Communications Cloud Telephony Services.
• Where the Supplier provides the Customer with any of the user based features (including but not limited to auto attendant, hunt group, call park, call pickup, call queue etc) and the Customer has not allocated these features to a user then the Supplier reserves the right to recover such unallocated features from the Customer’s account.  The Customer can replace these features or add additional features at any time.

• ACCEPTANCE

• The Supplier will notify the Customer when the work carried out by the Supplier or its subcontractor at the Customer Premises to enable the Customer to receive the Unified Communications Cloud Telephony Services (Installation Service) has been completed. The Customer will inspect and test the Unified Communications Cloud Telephony Services for the purpose of acceptance (Acceptance Testing). During Acceptance Testing, the Customer may notify the Supplier by email or telephone of any material non-conformity of the Unified Communications Cloud Telephony Services.
• To the extent that such non-conformities will have, in the Supplier’s opinion, a material detrimental effect on the Unified Communications Cloud Telephony Services, the Supplier will use its reasonable commercial endeavours to remedy such non-conformities.
• Acceptance shall be on an individual site by site basis and shall take place on the earlier of:

• the Customer’s written confirmation to the Supplier or its subcontractor that the Acceptance Testing has been completed;
• where the Customer has not notified the Supplier under paragraph I. above, five (5) Business Days from the date of the Supplier’s notification to the Customer that the Installation Service has been completed; or
• where the Customer has notified us of material non- conformities, five (5) Business Days from the date on which the notified non-conformities were remedied, or immediately upon demonstration by the Supplier or its subcontractor that the notified non-conformities will not, in the Supplier’s opinion, have a detrimental effect on the Service.

• Any additional time incurred by the Supplier remedying non-conformities notified by the Customer shall, at the Supplier’s sole discretion, be reflected in corresponding extensions to the affected timescales in the project plan (if any). Any additional time incurred by the Supplier investigating any notified non-conformities which later are found not to exist, will be charged to the Customer as a professional service on a time and materials basis in accordance with the rates notified to you from time to time.

• SERVICE LEVELS

• General

• Any timelines and dates provided in this Schedule 3 for the Installation Services and other activities are target dates only and are subject to engineer availability and the Customer complying with its obligations required to enable the Supplier to meet such timelines.  Any failure to meet any timelines provided will not result in any financial compensation for the Customer.
• Where the Supplier provides any target resolution timeframes for any faults in this Schedule 3 such timescales are based on the assumption that the incident or fault has been reported accurately and fully to the correct department.  External suppliers may be involved in the resolution of any issues and in such case any target resolution timelines will not apply.  Any failure to meet any resolution timelines provided will not result in any financial compensation for the Customer.
• Any service availability targets provided to the Customer will not include outages which are outside of the control of the Supplier (as determined by the Supplier), planned or notified emergency maintenance works and user error.  Any failure to meet any service availability targets provided will not result in any financial compensation for the Customer.

• Provisioning

• All stated timelines are from the receipt of a fully validated Order and they exclude any activity that requires site survey, non-gold addresses or installations that require additional line plant. Timelines are subject to supplier engineer availability and failure to meet the guidelines below will not result in any financial compensation.
• All timelines are stated in Business Days.

• Repair

• Please note that the following table excludes service requests and is based on the assumption that the incident has been successfully reported by telephone to the appropriate department.
• All resolution timescales are based on the delivery of either full resolution or workaround and any issue requiring significant product development will follow standard service request principles.
• For faults where the Supplier needs to involve external suppliers the following Service Levels may not apply, although the target resolution timeline will still be our aim. Failure To meet the guidelines below will not result in any financial compensation.
• All timelines are in Business Days.
• Please note that clock hours run during the time in which the fault is within the Supplier’s control. Where a fault is with the Customer for further action, the clock stops and will restarts when details are confirmed and information provided by the Customer.

• Service Availability

• The Supplier is able to provide service availability for CallSwitch.
• Service Availability is defined as the ability of a Service to perform its required function over a stated period of time. It is reported as the percentage of time that a Service is actually available for use by the Customer within agreed Service hours.

• Availability is calculated as

• Note: If a Service is partially available then the Unplanned Downtime shall be calculated in equal proportion i.e. if a Service is 50% available then the Unplanned Downtime will be calculated as 50% x elapsed period of the incident.
• Availability Measurement Period: 1 Calendar month.

• Target availability for each service component is as follows:
• The following shall not be included when calculating the service levels:

• Outages which are deemed by the Supplier to be the result of matters outside of its direct control
• Planned or notified emergency maintenance works
• User error

• Notes related to Service Availability

• Core functions are defined as CallSwitch Switching infrastructure, transmission equipment and core network, the service that supports call routing and termination.
• Non-Core functions include CallSwitch Support Systems, access to any relevant portals and feature based services such as Call Plans, Call diverts, Auto Attendant, Call Recording, and Unified Messaging
• Please note the Service Availability relates to the core CallSwitch services and does not include access or local CPE elements.

• Call Quality Performance

• As a means of determining and measuring the call quality of the CallSwitch service, the Supplier measures the call quality of calls passing through its provider’s core IP network and Platform.
• The performance is measured using Mean Opinion Score (MOS) that cover a scale from 1 (poor) to 5 (excellent) for call quality.
• The Call Switch Product supports the following codecs, G.711 and G.729 for external call termination.

• The MOS score targets for the supported CODECs for the CallSwitch product are as follows:

• The targets are measured using our SIP Monitoring Service, auto generating report every 24 Hours. These performance measures apply to the performance provided within the core network of the Supplier’s provider.

• Service Credits

• Service credits will be applicable should the level of core service availability not meet the target monthly percentage, as per the table below. Service credits will be applied to the monthly subscription charges only. Service credits would need to be requested by the Customer with evidence of services that you feel have been impacted. Any agreed service credits would be applied against the next scheduled payment to be made to the Supplier.

Additional Terms Relating to Connectivity

• SCHEDULE 4

ADDITIONAL TERMS RELATING TO CONNECTIVITY SERVICES

• CUSTOMER OBLIGATIONS
• The Customer hereby consents to the Supplier’s intermittent monitoring of the Services (whether authorised by statute or other legislation or otherwise) to ensure lawful use of the Services.
• The Customer may use the Network to access other Internet connected networks world-wide and agrees to conform to any published and future protocols and standards. In the event that communications by the Customer do not conform to these standards, or if the Customer makes profligate use of the Network to the detriment of the Supplier or any other of the Supplier’s customers, the Supplier reserves the right to restrict passage of the Customer’s communications until they give a suitable undertaking as to use and adhere to such undertaking.
• The Supplier is not responsible or liable for any third party charges from other organisations (such as telephone service or content providers) which may be incurred by the Customer while using the Services. The Customer shall indemnify the Supplier for any claims or charges made against the Supplier in respect of any such costs incurred.
• Any Internet address allocated by the Supplier to the Customer will at all times belong to the relevant supplier and the Customer may not sell or agree to transfer the address to any person. The Customer will have a non-transferable licence to use such Internet address whilst the Customer receives internet access from the Supplier. In the event the Contract is terminated, for whatever reason, the Customer’s licence to use the Internet address shall automatically terminate and thereafter the Customer shall not use the Internet address.
• SUPPLIER OBLIGATIONS
• The Supplier will configure and install items to the specification provided to the Customer in accordance with the rates detailed in the Proposal.
• Installation shall be to the point identified by the Supplier as most accessible. In the event the Customer changes the specification for such installation/configuration the Supplier reserves the right to require payment for implementing such changes at rates notified to the Customer from time to time.
• The Supplier will use reasonable commercial endeavours to carry out necessary maintenance and support of its own systems work outside of UK business hours (Planned Outages). The Supplier shall also use reasonable commercial endeavours to notify the Customer of any Planned Outages at least five days prior to such work being carried out, although the Customer accepts that due to the nature of the Services, this may not always be possible.
• USING THE SERVICES
• The Supplier reserves the right to remove material placed on its servers by the Customer or other users which violates the Conditions or is otherwise harmful to the Supplier’s interests or the interests of other users of the Services.
• The Supplier reserves the right to monitor and control data volume and/ or types of traffic transmitted via the Services. In the event that the Customer misuses the Service or their use does not comply with any ‘Acceptable Use Policy’, made to the Customer from time to time, the Supplier reserves the right to reduce, suspend or terminate the Customer’s access and use of the Services. During any such time of reduction or suspension, the Customer will remain liable for the payment of the original level of Service Charges. It is the Customer’s responsibility to review the Acceptable Use Policy from time to time, to ascertain if changes have been made to it.
• The Supplier cannot guarantee that Headline Transmission Speeds can be obtained at any time, however the Supplier will use reasonable commercial endeavours to inform the Customer of any issues, and attempt to resolve them, as soon as is reasonably possible.
• LIABILITY
• Unless the Supplier expressly agrees otherwise under a separate contract the Supplier is not responsible for the security of the Customer’s networks and/or systems and shall not be liable for unauthorised access thereto.
• The Customer acknowledges that the Supplier is unable to exercise control over the content of any information passing over the connection and or the Network. The Customer further acknowledges that the Supplier hereby excludes all liability in respect of any transmission or reception of information of whatever nature.
• WAYLEAVES
• Where supply of Service to the Customer relies on the provision of wayleaves, the Supplier will use its reasonable commercial endeavours to ensure continuity and provision of Service. If for any reason whatsoever, the wayleaves are terminated or suspended preventing the supply of Service, then the Supplier may terminate the Contract or the individual Connectivity Service to the Customer by 7 days’ notice in writing or by email, without any liability to the Customer.
• Where a wayleave is granted by the Customer the Customer will use its best endeavours to ensure continuity and provision of Service. If for any reason whatsoever, the wayleaves are terminated or suspended preventing the supply of Service, then the Supplier may terminate the Contract or the individual Connectivity Service to the Customer by 7 days’ notice in writing or by email, without any liability to the Customer.
• Termination
• Where the Supplier has agreed to provide as part of the Services, ADSL broadband on PSTN lines, if the Customer terminates that Service and/ or the Contract at any time within 12 months from the Start Date, then without prejudice to the Supplier’s other rights and remedies, the Customer shall pay a charge of £50 (or such other amount notified by the Supplier in writing from time to time) upon the Supplier’s demand.
• Where the Supplier has agreed to provide as part of the Services, Fibre to the cabinet (FTTC) connectivity Technology if the Customer terminates that Service and/ or the Contract at any time within 12 months from the Start Date, then without prejudice to the Supplier’s other rights and remedies, the Customer shall pay a charge of £75 (or such other amount notified by the Supplier in writing from time to time) upon the Supplier’s demand..
• Service Levels – LEASED LINE
• Network Backbone Availability

• The Network backbone has a 99.99% availability guarantee.
• In the event the Supplier fails to meet this guarantee, three (3) date and time stamped ICMP (internet Control Message Protocol) traceroutes, which have been taken a minimum of one hour apart (whereby the period window does not exceed four hours) must be submitted to the Supplier by the Customer in a form acceptable to the Supplier. This information should be obtained from the Customer’s LAN equipment and should clearly show unavailability within the Network backbone.

• Network Latency

• The Supplier guarantees to provide a maximum average round-trip of 20 milliseconds latency between any two routers on the Network backbone measured over a one hour period.
• In the event the Supplier fails to meet the guarantee contained in paragraph b(i), the following information must be submitted to the Supplier, three (3) date and time stamped ICMP traceroutes, which have been taken a minimum of one (1) hour apart whereby the period window does not exceed four hours. This should be obtained from the Customer LAN equipment clearly showing the latency issue within the network backbone.
• If an Incident is subsequently raised investigation and diagnostics will be instigated.

• Customer Circuit Availability

• The Supplier aims for 100% availability of circuits provided by it on its Networks.
• Where the circuit from the Customer premises to the Supplier’s provider’s point of presence is delivered on the Supplier’s provider’s own networks, the Supplier will offer a 99.99% availability guarantee
• Where the circuit from the Customer premises to the Supplier’s provider’s point of presence is delivered using a third-party network, the Supplier will use reasonable commercial endeavours to pass on the availability guarantee from the provider.
• The guarantee contained in paragraph c(I) excludes:

• incidents caused by power disruption at the Customer premises;
• any Customer device and associated cabling.

• Paragraph c(I) does NOT apply to:

• transit customers;
• customers with circuit backup services such as ISDN/ADSL; or
• alternate/bonded leased lines; or
• where Customer premises hardware is not the responsibility of the Supplier or its provider.

• Customer Circuit Repair Time

• The timing of Response and Resolution times will depend on the level of support service provided by the Supplier:

• Where the service is monitored and managed by the Supplier or its providers, the timing of Response and Resolution will commence from the point that an issue is identified.
• Where the service is managed but not monitored by the Supplier or its providers, the timing of Response and Resolution will commence from the point that the fault is reported by the Customer.
• Where the service is neither monitored nor managed by the Supplier or its providers, the timing of Response and Resolution will commence from the point that the Supplier or its providers’ support engineers confirm the issue as relating to a Supplier or 3rd party supplier circuit problem and not from the time the fault is reported by the Customer.

• The Supplier would expect that the Customer has fully performed and undertaken network and circuit diagnostic checks and verified that the issues are due to the Supplier’s or the 3rd party supplier’s network, before a fault is raised to the Supplier.
• The guarantees provided by the Supplier in this paragraph 8 exclude:

• incidents caused by power disruption at the Customer premises; or
• the Customer CPE (customer premises equipment) and associated cabling.

• Performance SLAs

• In the event the Supplier fails to meet this guarantee, the following information must be submitted to the Supplier:

• the Supplier customer helpdesk ticket reference.
• a copy of the attached device running configuration.
• a copy of the attached device SHOW VERSION (or non-Cisco equivalent) output.
• a copy of the attached device SHOW INTERFACE (or non-Cisco equivalent) output for the interface facing the Supplier or its provider during the outage.

• Exclusions – The service levels shall not apply:

• In all cases of scheduled maintenance, as notified to the Customer not less than 24 hours in advance and emergency maintenance where notified to the Customer four hours in advance are both exempt from claims under these service level provisions.
• To emergency maintenance carried out with less than four hours’ notice which may be exempt, should the impact of not carrying out the maintenance cause a breach of these service level provisions. Denial of service attacks against the Customer’s service is also exempt from claim under this these service level provisions.
• Where Services are suspended or reduced pursuant to the Contract as a result of the default of the Customer.
• Where any breaches or failure to meet services level is caused by or related to any Force Majeure Event.
• These service level provisions shall cease to apply where the Customer is in breach of the Contract.

• Credits

• Should any of the above metrics be breached then a service credit will be issued against the Customer’s circuit. The limit for claims is equivalent to the SLA the Supplier receives from the operator directly. This will vary depending on the operator used and is beyond the control of the Supplier.
• If there is an outage, based on Supplier (or its provider’s) data, the Supplier (or its provider) will apply credits in accordance with the criteria below:
• Where the circuit from the Customer premises to the Supplier (or its provider’s) point of presence is delivered on the Supplier (or its provider’s)  own networks:

• Where the circuit from the Customer premises to the Supplier (or its provider’s) point of presence is delivered using a third-party network the Supplier will directly issue the service credit issued by the provider in full to the Customer.
• For the purpose of calculating the outage period, a fraction of one (1) hour will be rounded-up to the nearest hour, provided the Customer reports the outage within the “Claims” criteria below.
• If the Supplier, based on its data, fails to meet the latency guarantee the Supplier will apply a credit to the Customer’s rental charge for the leased line as follows:

• If failure to meet the latency guarantee occurs in two consecutive calendar months, the Supplier (or its provider) will apply a credit equivalent to one day’s Service Charge for the rental of that leased line;
• If failure to meet the latency guarantee occurs for longer than two consecutive calendar months, the Supplier (or its provider) for each additional month will apply a credit equivalent to one day’s rental charge for that service.

• The limit for claims is:

• in the case of circuits provided over the Supplier (or its provider’s) own networks, a value equivalent to one month’s Service Charges for the rental of the leased line(s);
• in the case of third-party provided circuits, the equivalent to the SLA credits the Supplier receives from the operator directly. This will vary depending on the operator used.

• Claims

• To make a claim under these service level provisions the Customer must submit a claim within two Business Days of the incident resolution to the email address provided by the Supplier from time to time.
• When making its claim, the Customer should provide the Supplier with such supporting information as is specified in these service level provisions as would be relevant to such claim. The Supplier aims to reply and resolve all such claims within 30 days of receipt.
• The Supplier will apply credit within 30 days of the Supplier confirmation of a breach and the Customer is expected to continue to make payments to cover outstanding invoices until such time as the credit has been applied.
• At no stage and under no circumstances will the Supplier make payments other than in the form of service credits.

• Additional Information

• Except in the Initial Contract Period the Supplier reserves the right to amend, modify or alter the thresholds and metrics measured by these service level provisions or change the level of remedy afforded to Customers. Changes will be notified to the nominated contact at the Customer organisation on not less than 30 days’ notice.
• Due to the nature of the protocol used (ICMP) and the priority applied to efficiently route packets within the Network, instantaneous results from a particular router may indicate a breach of these service level provisions but repeated tests must be taken to eliminate expected performance changes due to load. Customers should also be aware that ICMP echo requests may be suppressed for network security reasons and other diagnostic measures may be requested in these instances. A breach of any of these service level provisions will not be remedied should such a security measure be in place.
• In these service level provisions “Backbone” means the Network owned and operated by the Supplier’s provider and includes all links, hardware and devices used to transmit packets within the facilities operated by the Supplier’s provider. For the avoidance of doubt, Border devices used to delineate the Backbone from customer premises equipment (CPE) are always sited in facilities operated by the Supplier’s provider and the Backbone is defined as starting at the connected port on the device. For Wires Only services, the Supplier’s provider Operated “Backbone” can be considered to end at the last mile tail provider NNI port. With responsibility for diagnosis between this NNI and the Customer being primarily with the Customer.

Additional Terms relation to Mobile Services

• SCHEDULE 5

ADDITIONAL TERMS RELATING TO MOBILE SERVICES

• AIRTIME AGREEMENT AND SIM

• The Contract is in addition to and does not extinguish, replace or supersede the Airtime Agreement.
• Following the Customer’s signature of the Airtime Agreement accompanying the Order, the Customer gives its authority for the Supplier to sign further Airtime Agreements for subsequent Orders as the Customer’s agent. 
• Where the Supplier enters into any Airtime Agreements as the Customer’s agent, the Customer agrees that it is at all times fully liable under such Airtime Agreement and shall indemnify the Supplier against all losses, liabilities, claims, costs, fees and expenses that it may suffer or incur in connection with acting as the Customer’s agent.
• The Supplier shall be entitled to terminate the supply of the Mobile Services at any time and without notice if the Airtime Agreement is terminated or expires for any reason.  The remainder of the Contract (where the Supplier is also providing the Connectivity and/ or the Unified Communications Cloud Telephone Services) shall continue unaffected.
• Title to the SIM remains with the MNO at all times.

• MNO CHARGES

• The Customer shall pay the MNO Charges and all VAT thereon directly to the MNO.

• SUBSIDY AND TECHNOLOGY FUND

• Where Equipment is provided free of charge or where the Customer uses any Subsidy available to purchase Equipment, title in the Equipment shall only pass to the Customer upon satisfaction of the terms of this Contract and any Airtime Agreement.

• In the event of early termination of this Contract for any reason, where the Equipment was provided free of charge or paid for using a Subsidy, the Supplier reserves the right to recover the value of the Equipment as detailed in the Order.

• Subject to the Customer entering into the Airtime Agreement, the Supplier may agree to pay to the Customer the Technology Fund.

• The Customer may draw down the Technology Fund in a number of separate tranches as set out in the Proposal (Tranches) on the draw down dates set out in the Proposal (Drawdown Date(s)).

• At any time on or after the relevant Drawdown Date and during the term, the Customer may elect to:
• use the Technology Fund to place an order with the Supplier for hardware and the Supplier shall be entitled to deduct from the Technology Fund (without prior approval from the Customer), the cost of all hardware purchased by the Customer; or
• request payment of each Tranche of the Technology Fund and shall submit to the Supplier a valid VAT invoice for the same.
• The Customer agrees acknowledges and accepts that where it has exercised its right to request payment of any Tranche, the Supplier gives no warranties, representations or other assurances in respect of hardware purchased by the Customer from a third party supplier and shall have no liability for any losses incurred by the Customer, including but not limited to, in respect of defective products, loss or interruption to the service and any loss of business or otherwise where the Customer has purchased hardware from a third party supplier, albeit using the proceeds of the Technology Fund.
• Subject to paragraph h, the Supplier shall pay the amount of the Tranche within 60 days of receipt of the invoice in accordance with paragraph e.ii.
• In addition to its rights in paragraph i, the Supplier shall not be required to pay any Tranche to the Customer in the event that:
• the Customer is (or the Supplier believes (acting reasonably) that the Customer is) in breach of any its obligations under the Contract and/ or the Airtime Agreement; or
• the Airtime Agreement has terminated for whatever reason.
• In the event that:
• the Customer is in breach of the Airtime Agreement;
• the Airtime Agreement terminates for any reason within its term;
• 70% (or such other percentage as detailed in the Proposal) of the Customer’s mobile estate has transitioned away from the Supplier; or
• the Supplier is entitled to terminate the Contract for any reason,

then the Supplier shall be entitled to demand in writing (“Clawback Demand”) repayment of a proportion of the Technology Fund, to be calculated in accordance with paragraph j (the “Clawback Amount”).

• The Clawback Amount shall be:
• in the case of breach or termination of the Airtime Agreement within six months of the later of the (i) commencement date of the Airtime Agreement and the (ii) Start Date of the Mobile Services, the full amount of the Technology Fund paid by the Supplier to the Customer; or
• thereafter an amount equal to the amount of the Technology Fund paid by the Supplier to the Customer divided by the number of months of the term of the Airtime Agreement and then multiplied by the number of months of the term of the Airtime Agreement remaining as at the date of termination or breach (including, for the avoidance of doubt, the month in which the termination or breach occurred).
• The Customer shall pay the Clawback Amount within 30 days of the date of the Clawback Demand.
• Following termination of Contract and/ or the Airtime Agreement, the Supplier shall not be under any obligation to pay, and the Customer shall not be entitled to receive, any balance of the Technology Fund not paid to the Customer as at the date of termination.

Data Protection Schedule

Data Protection Schedule