Concert Networks Master Services Agreement
1 ISSUE 1 DATED 27.09.07
This Master Services Agreement contains the general terms that apply to all Orders for Services from you, the Customer accepted by Concert Networks Limited (“us”). In addition there may be specific supplementary terms and conditions that are expressly stated on all Orders that collectively constitute a legally binding agreement (“Agreement”) between our two parties.
Acceptance and performance of any Orders may be conditional on a satisfactory credit risk assessment and you hereby authorise us to conduct such assessment at our discretion. Any use by you of the Services shall be deemed to be on the basis that you have read, understood and agreed with this Agreement.
In this Agreement:
“Act” means the Telecommunications Act 1984.
“Agreed Usage” means the monthly minimum call traffic, if any, specified in the Order.
“Agreement” means together this Master Services Agreement, the Order, any Service specific supplementary terms and conditions and any other document specifically referenced to this Agreement in writing by us.
“Charges” mean the charges payable by you to us for the provision of the Services as set out in the Order or any revised version of the Order notified to you per clause 9.
“Committed Period” means, in respect of each Service, the minimum period of time that you have committed to receive and pay for that Service as set out in the Order.
“Concert Licences” means the licences issued by the Secretary of State under the Telecommunications Act 1984 to 2ergo Limited, an affiliate of ours.
“Concert Service Helpdesk” means the helpdesk support to be provided by us as notified to you from time to time.
“Concert Site” means the premises owned or controlled by us at which any of our Equipment or Customer Equipment is located for the purpose of providing the Services.
“Concert Website” means the website located at www.concertnetworks.co.uk or such other website as may be notified by us.
“Customer Equipment” means any hardware or software owned, controlled or licensed by you that is made available to us in order to provide the Services. This includes your proprietary technology, Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related global intellectual property rights (whether owned or licensed to you from a third party) plus any derivatives, improvements or extensions of this technology conceived, reduced to practice, or developed during the term of this Agreement.
“Early Termination Fee’ means the greater of i) £250 fixed charge or ii) a sum equal to the fixed rental and/or ongoing monthly charges for the remaining unexpired term plus the daily rate of your arithmetic average monthly invoice, based upon your last three full calendar months’ invoices (excluding any month during which call charges were not incurred) or since the commencement of the Agreement, if you terminate in the first three months, for each day left in such notice period, together with an administration charge of £30.
“Equipment” means any hardware used by us or supplied by us to provide the Services including other tangible equipment and intangible computer code as stated on the Orders.
“Facility Limit” means the usage, webspace, bandwidth or other capacity or volume measure indicated in the Order as the applicable facility limit for a Service.
“Order” means a sales order that summarises the scope of the Services plus any unique or relevant details that are particular to that Service.
“Password” means any password, PIN, account number, code, smart card or other security device issued to you by Concert Networks.
“Professional Services” means any additional consulting Services provided by us for which a Statement of Works will be produced.
“Regulatory Body” means any regulatory body whose function it may be to enforce and administer any code of practice (including copyright and intellectual property laws).
“Relevant Network” means the GSM cellular radio public telecommunications system run by any relevant network provider under a licence granted by the Secretary of State pursuant to Section 7 of the Telecommunications Act 1984.
“Renewal Term” means any Service term following the initial Committed Period.
“Service” means any one or more of the services described in an Order.
“Service Credits” means the amounts due to you in pursuant to clause 3.
“Service Failures” means any failure, error or defect in the provision of the Services by us excluding failures, errors or defects arising from, caused by or contributed to by your acts or omissions or third parties including other providers of telecommunications, computers or other equipment or services including internet services or as a result of causes beyond our reasonable control.
“Service Level” means the performance standard, if any, set out in the Order.
“Software” means the software provided by us to you for the purposes of enabling you to use the Services including all associated documentation.
“Start Date” means the target date for the commencement of the provision of the Services to you.
“Technology” means our proprietary technology including our services, software tools, hardware designed, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade-secrets and any related global intellectual property rights (whether owned by us or licensed to us from a third party) plus any derivatives, improvements, enhancements or extensions of our Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to you.
‘’Trial Period’’ means a pre-agreed period, as set out in the Order, for the purposes of you testing a Service or Services.
1.1 References to clauses and schedules are to the clauses and schedules of this Agreement and references to paragraphs are to paragraphs in the schedule in which such references appear.
1.2 Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
1.3 Any reference in this Agreement to any provision of a statute or a statutory instrument shall be construed as a reference to that provision as amended, re-enacted or extended from time to time.
1.4 Any reference in this Agreement to writing includes a reference to cable, facsimile, email or comparable means of communication.
1.5 Except where the context otherwise requires, words denoting the singular shall include the plural and vice versa and words denoting any one gender include all genders.
1.6 Any phrase introduced by the terms “including”, “include” “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2 Services Provided by Us
2.1 By submitting an Order, you agree to take and pay for, and, by accepting the Order, we agree to provide, the Equipment and Service(s) as specified in the Order in accordance with the terms of this Agreement.
2.2 We will use reasonable skill and care when providing the Services in a manner consistent with industry standards reasonably applicable to the performance thereof.
2.4 Except for the express warranties set forth in sections 2 and 3, the Services are provided on an ‘as is’ basis, and your use of the Services is at your own risk. We do not make, and hereby disclaim, any other warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non infringement and title, and those arising from a course of dealing, usage, or trade practice.
2.5 In the performance of our duties we shall be entitled to:
(a) Change the technical specification of the Services where necessary for operational reasons (provided that such changes do not materially affect the performance of the Services); and
(b) Suspend the Services for purposes of carrying out Maintenance Services or in case of emergency (and in both cases We shall inform You of such suspension where practicable to do so); and
(c) Give You instructions which We believe to be necessary for health and safety reasons or for maintaining the quality of the Services.
2.6 We may have to alter code or access numbers or technical specification associated with the service for operational reasons, and where we need to tell you about this we will give you as much notice as we can. The technical specification will only be changed where this will not materially affect the performance of the service.
2.7 We may give you instructions about health and safety issues when using the service, or on your use of the service to ensure the quality of the service we provide to you and other customers and you agree to observe them.
2.8 We may take action to manage network performance during periods where there is high demand which may include line speed reductions and application and protocol management.
3 Service Levels
3.1 We do not warrant that the Services will be continuously available to you, error free, completely secure or free from Service Failures.
3.2 Payment of any Service Credits due to You are the sole and exclusive remedy to You for any failure by Us of agreed Service Levels.
3.3 In particular we do not and cannot control the flow of data to or from our network and other portions of the internet. Such flow depends largely on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt your connection to the internet (or portions thereof). Although we will use all commercially reasonable efforts to take appropriate action to remedy and avoid such events, we cannot guarantee that such events will not occur. Accordingly, we disclaim any and all liability resulting from or related to such events.
3.4 If you experience a Service Failure you must immediately report this to us via the Concert Service Helpdesk, providing us sufficient information to investigate the problem. We will log the time of receipt of all such reports.
3.5 On investigation of a reported Service Failure, if we determine that there has been no Service Failure or there is a Service Failure but it was caused by your negligence or default we reserve the right to charge you for all reasonable costs and expenses incurred and you agree to pay such Charges.
3.6 Our telephone network services are provided by several telephone network providers to ensure the optimal quality of service. We may switch between alternative telephone network providers at any time to provide the Services without notice.
4 Use of Services
The sending of telecommunications messages that are grossly offensive or of an indecent, obscene or menacing character is a criminal offence. It is also a criminal offence to harass another person by the use of the telephone. It is our policy of to advise you to report any such communications to the Police and we shall assist the Police in the investigation of any such complaints and any criminal prosecutions that may arise.
4.1 You agree that you will not use or cause or permit the Services to be used (by you, your customers and users) in any way which would:-
(a) contravene or cause us to contravene any laws or regulations including, but not limited to, the Act;
(b) deliberately result in wasting our staff effort or networked resources related to connected systems or of our staff effort involved in the support of those systems;
(c) compromise the security of our Equipment or other systems, including by introducing viruses, corrupting or destroying other users’ data, disrupting the work of other users, denying service to others users or failing to employ appropriate security procedures;
(d) create and/or introduce into the Service any virus, worm, Trojan horse, cancel bot (or other destructive or contaminating program or advise any other party how to do so);
(e) enable or permit unauthorised access by you or third parties to data stored on our network;
(f) cause a degradation of service to any of our other customers or jeopardise or prejudice the operation, quality or integrity of the Services, or the operation, quality or integrity of any telecommunications network;
(g) as a means of communication for a purpose other than that for which the Services are provided;
(h) involve the sending of unsolicited marketing or advertising materials;
(i) result in the transmission, receipt, upload, download, use, reuse or storage of any material of a pornographic, indecent, improper, obscene, vulgar, defamatory, racially or sexually discriminatory, blasphemous, menacing, threatening, abusive,
offensive or fraudulent nature or is of a nature which if transmitted would constitute a criminal offence or which would result in the breach of any third party’s intellectual property rights, confidential information or privacy;
(j) cause injury, offence, annoyance, inconvenience or needless anxiety to any person;
(k) collect or transfer personal data of any third party’s without their consent nor to tamper with routing and domain name services;
(l) breach or cause us to breach any applicable data protection legislation including, but not limited to, the Data Protection Acts 1984 and 1998;
(m) breach or cause us to breach the Concert Licences;
(n) breach, or cause us to breach any agreements with any third parties;
(o) for any purpose which we may notify you from time to time by reason of any relevant legislation which comes into force.
4.2 You agree to report to us any violation of these terms and conditions by other users.
4.3 You shall not, without the prior written consent of ourselves (which may be withheld in our sole discretion), resell the Services to any third parties or connect Customer Equipment directly to anything other than our network, equipment and facilities.
4.4 You will indemnify us against any claims, proceedings or threatened proceedings from third parties and against any loss or damage suffered by us arising from any breach of your obligations under this Agreement, including this clause 4, and for all costs and expenses reasonably incurred by us in investigating and defending ourselves in relation to any such claims, proceedings or threatened proceedings.
4.5 You will ensure that your usage of the Services does not exceed the Facility Limit or cause congestion or otherwise disrupt our network. You will give us not less than 2 days written notice of any advertising, promotion or other campaigns which may result in abnormal demands being placed in our network.
4.6 You are solely responsible for safeguarding your data by taking backup copies, maintaining a disaster recovery process and through any other means you believe appropriate.
4.7 To enable us to perform our obligations under this Agreement, you will obtain all requisite rights, licences, authorisations, consents and permissions and ensure that all such requirements of law or any Regulatory Body or the Office of Telecommunications or any other competent authority or public body have been complied with as may be necessary to utilise the Service. You will permit us or our agents to have access to your premises and will provide such reasonable assistance and information as we request from time to time.
4.8 We operate during normal office hours. Any request to carry out work at other times may be refused or charged to you at our prevailing standard rates.
4.9 We shall have no obligation whether under this Agreement or otherwise to make available to you any equipment, facilities or services until such time as you have complied with all of your obligations under this clause 4 to our satisfaction. You shall at all times throughout the duration of this Agreement maintain in full force and effect all such rights, authorisations, licences, consents and permissions and comply with all such requirements and you hereby irrevocably submit to the jurisdiction of all Regulatory Bodies.
4.10 You shall, indemnify and keep us fully and effectually indemnified and all our members, officers, servants and agents against all liabilities (including damages, expenses and costs), actions, proceedings, claims and demands and all alleged claims and demands whatsoever arising directly or indirectly out of or in consequence of the provision of the Service or any of our associated services over any public telecommunications system operated under a licence granted pursuant to Section 7 of the Telecommunications Act 1984 (a “Public Network”) (other than in respect of any errors in or omission caused by a fault in the Service). We shall as soon as reasonably possible give notice to you of any such action proceeding, claim or demand.
4.11 You shall provide us with such assistance and/or information as we or any Relevant Network Provider may from time to time reasonably require in order to comply with all or any requirements and conditions at any time and from time to time imposed by law in the UK or by any licence under the Telecommunications Act 1984 or by any Regulatory Body, or by the Office of Telecommunications or any other competent authority or public body which are or may be applicable to or affect the Service or any associated service.
5 Our Equipment and Technology
5.1 Our Equipment is owned by us, or our suppliers or licensors, and no title in any of our Equipment and/or Technology will pass to you under this Agreement except as provided in this Agreement and the applicable Signed Purchase Order and you shall hold our Equipment subject and subordinate to our rights. We grant you a non-exclusive licence to use the Equipment and/or Equipment at the premises specified in the Order whilst the Services to which the Equipment relates are being provided to you under this Agreement. On termination all licences granted shall immediately cease.
5.2 You will, at your own expense, keep safe and properly maintained our Equipment whilst in your possession and you agree you will not remove, dispose of or destroy any part of it and return it in good condition upon demand. We reserve the right to charge you for any event requiring maintenance in the following instances you:
(a) Misuse, neglect damage wilfully or accidently the Equipment and/or Service;
(b) Disconnect the Equipment;
(c) Fail to comply with the provisions of the Agreement;
(d) Incur a fault involving any telecommunications system not maintained by Concert Networks.
5.3 Unless we agree otherwise, you will be responsible for the installation of any Equipment and/or Technology. Where we install Equipment and/or Technology you grant us and our agents a right of access to your site, on reasonable notice, to install our Equipment and/or Technology and in all cases to inspect, test, maintain or otherwise deal with our Equipment and/or Technology and to recover it in the event that you fail to return it on request. We reserve the right to charge for the installation of such equipment and any related system programming.
5.4 We may allocate you a Password to enable you to use the Service. You must keep such Password safe and confidential and notify us immediately if any third party becomes aware of it. We reserve the right to change the Password without notice.
5.5 All Equipment that you purchase from us is supported by a 12 months warranty unless otherwise agreed in writing. All Equipment rented from us is supported on an advanced parts replacement basis for the duration of the term of this Agreement. We reserve the right to supply refurbished Equipment for this purpose.
6 Customer Equipment
6.1 Except as expressly set out in this Agreement, you will be responsible for providing all Customer Equipment necessary to make use of the Services provided by us.
6.2 If required for the provision of the Services, you authorise us, our partners, agents, employees or other authorised personnel, to reprogram your telephone equipment and/or install access equipment. We reserve the right to charge for this at our prevailing rates.
6.3 You will ensure that the Customer Equipment conforms at all times with the relevant standard designated by all relevant legislation, including the Act and all applicable regulations, instructions and orders. You represent and warrant that you have full legal right and authority to place and use any Customer Equipment as contemplated under this Agreement. We will not be under any obligation to connect or keep connected any Customer Equipment if it does not so conform or if in our reasonable opinion it is liable to cause death, personal injury or damage to property or to impair the quality of the Services provided by us or to put us in breach of our Licences or our obligations to any third party and you agree to indemnify us fully in this regard.
6.4 Where Customer Equipment is located at a Concert Site you will remain fully responsible for the insurable risk in the Customer Equipment. You undertake to obtain and maintain the following insurance:-
(a) cover in an amount equal to the full replacement value of the Customer Equipment against fire, theft, accidental damage and all other risks; and
(b) public liability insurance with cover in an amount not less than £10,000,000 per annum.
6.5 On request you will provide us with certificates of cover in respect of the required insurance and evidence of payment of premiums.
6.6 You are responsible for delivering the Customer Equipment to the Concert Site prior to the Start Date and promptly removing it from the Concert Site on the termination of this Agreement. You are solely responsible for transportation, installation and de-installation costs associated with the Customer Equipment.
6.7 We reserve the right to withhold collection of any Customer Equipment by you unless and until all sums due have been received in full.
6.8 We reserve the right to relocate the Customer Equipment to an alternative Concert Site on giving you prior written notice.
6.9 You will indemnify us against any claims, proceedings or threatened proceedings from third parties and against any loss or damage suffered by us arising from our possession or use of the Customer Equipment or from the location of the Customer Equipment at the Concert Site, and for all costs and expenses reasonably incurred by us in investigating and defending ourselves in relation to any such claims, proceedings or threatened proceedings.
6.10 The Customer will be solely responsible for obtaining and maintaining the Customer’s own compatible computer system being all such equipment, software and communications lines, including any public lines required by the Customer to access the Services (“Customer’s Equipment”). Concert Networks has no responsibility for or liability with respect to the Customer’s Equipment nor do We accept any responsibility for Customer Equipment not supplied by Us not working properly in conjunction with any Services provided by Us.
6.11 So that the service remains safe and secure, any equipment connected to or used with the service must bear the European Consumer Equipment Standards “CE” mark. Such equipment must also be used in accordance with all relevant instructions and safety and security procedures (including, but not limited to, Suppliers Information Note (SIN) 346). We do not support any equipment not provided by us.
6.12 You shall make any such changes and modifications to the Customer Equipment as We may determine necessary in order to provide the Services, subject to the obligations of You pursuant to the Acts.
6.13 You shall, if so requested by Us, provide such information in respect of the Customer Equipment as We may reasonably require for the purposes of providing the Services including, without limitation, information in respect of signalling equipment.
6.14 If you have been provided with equipment to replace faulty equipment, such faulty equipment must be returned to us. If you do not return the faulty equipment to us within 14 days of receiving the replacement equipment, you may be charged for the equipment. This charge may include the retail price of the equipment, postal charges for both initial dispatch and a reasonable administration charge.
6.15 If We, at the request of You, change the location of any Concert Equipment or Service Line(s), You shall pay to Us all applicable charges for any re-connections and associated work.
7 Allocation and Use of Telephone Numbers
7.1 Where we allocate you any telephone numbers or codes as part of the Services, you acknowledge that you will not acquire any legal, equitable or other rights in relation to any numbers or codes. We may on giving you notice withdraw or change any such numbers or codes. You may not sell or transfer or seek to sell or transfer any numbers or codes allocated by us. You may port numbers to us and may also port numbers to other carriers with whom we have porting agreements. All intellectual property rights or other rights in any numbers or codes allocated by us shall at all times, as between ourselves and you, remain vested in us.
8 Charges and Payment
8.1 You will pay us the Charges as specified in the Order or as varied in accordance with clause 9. Charges will be payable with effect from the date a Service is first made available to you for commercial use. You agree to reimburse us for all reasonable out-of-pocket expenses incurred in providing the Services to you.
8.2 Notwithstanding the aforesaid Charges may be subject to site survey. If following a site survey we incur unusual additional costs in providing the Service, we shall be entitled on prior notification to you to increase the Charges by the amount of such costs. You agree to pay such increased Charges.
8.3 If we are unable to gain access to Your premises to perform our duties under this Agreement We will charge and You agree to pay a cancellation fee.
8.4 Unless otherwise agreed in writing, payment of any set-up costs and first months rentals are due on acceptance of Order. Monthly Services are due in advance. All purchases of equipment are payable on acceptance of signed Order.
8.5 Unless otherwise stated on the Order all payments will be made by Direct Debit and you agree to provide us sufficient details and authorisation as is necessary.
8.6 If you become overdue with your payments, we may, upon written notice to you, modify the payment terms or remove credit facilities on all Services provided until such time as we obtain assurances of your ability and intention to adhere to your payment obligations hereunder.
8.7 We may at any time during the term of this Agreement request a security deposit of an amount we deem necessary. Such deposit will be held by us in a non-interest bearing account. If your credit account with us becomes overdue, we reserve the right to use the deposit to clear any sums due to us. In such instances we may require the deposit to be topped up. If any payments or fines are due on your behalf to a Regulatory Body or network provider, you agree to allow us to use the deposit for this purpose also.
8.8 All Charges are stated exclusive of UK value added tax (VAT) and other applicable taxes. You will be responsible for paying VAT and other applicable taxes which will be stated in our invoices at the prevailing rate.
______________________________________________________________________________________________________________________________________________ Concert Networks Master Services Agreement ______________________________________________________________________________________________________________________________________________
2 ISSUE 1 DATED 27.09.07
8.9 Our invoices will be issued in accordance with the payment terms specified in the Order. Usage charges payable shall be calculated by reference to data recorded or logged by us and not by reference to any data recorded or logged by you and such data shall, in the absence of manifest error, be final and finding.
8.10 Without prejudice to any other rights, we may charge interest on all overdue amounts from time to time on a daily basis at a rate of 4% above the base rate of the Royal Bank of Scotland plc, accruing from the due date of payment until receipt by us of the full amount.
8.11 In the event you become consistently late in settling payment necessitating the involvement of our credit control process, you acknowledge we will incur cost in recovering sums due to us. In this regard we reserve the right in our absolute discretion to charge a late payment fee from time to time at our standard rates (available on request).
8.12 If any concessions or discounts have been provided to you e.g. free rental periods, hardware, access equipment, telephone system programming, AND you terminate this Agreement within the Committed Period, you agree to pay a sum equivalent to the standard rate for such Services.
9 Changes to Services
9.1 We may at any time on 30 days written notice to you vary any of the General Terms and Conditions, the Charges or any other provisions of this Agreement including the technical specification of the Services.
9.2 We shall be entitled to decrease our prices at any time, such decreases to apply to all Services provided after the date of the decrease and to be reflected in our next invoice.
9.3 If you request and we agree to a change of Service (including without limitation adding, deleting or exchanging a Service) or a change of site, you agree to complete such formalities as we shall require to give effect to such change and to pay to us the then current charges for such change. We may require payment prior to effecting such change. To reflect such change we may without notice revise the Charges.
9.4 In the event we mutually agree to review the Charges downwards, you agree to reset the Committed Period from the date the new lower Charges take effect pursuant to clause 11.4. For the avoidance of doubt your acceptance of Concert’s Price Commitment programme which does not require the signing of a new Order will automatically reset the Committed Period to an equal term from the effective date the reduction is applied.
10 Security and Backup Services
10.1 You are entirely responsible for maintaining the security and integrity of your Service accounts including, but not limited to, protecting all passwords, backing-up all data, employing appropriate security devices, including virus checking software, and having disaster recovery processes in place.
10.2 Where, as part of a Service, we provide our Equipment or Services for the principal purpose of safeguarding the security of the Services received by you, we will use reasonable efforts to ensure that, as at the date of installation of our Equipment or the provision of the Services, we comply with the agreed specifications required. However, we provide no guarantee or warranty with respect to the security of the Services.
10.3 Where you are, or become, aware of any matters which you know or ought to reasonably be expected to know constitute a threat to the security of the Services you will immediately advise us of such matters.
11 Term, Start Date and Renewal
11.1 This Agreement will commence on the date of execution of the Order and will continue for the Committed Period (if relevant) and thereafter until terminated by either party.
11.2 ALL DEADLINES, DATES, TIMES, PERIODS OF SERVICE AND IN PARTICULAR THE AGREED START DATES INDICATED BY US ARE GUIDELINE ESTIMATES BASED ON NORMAL WORKING PRACTICE. WHERE WE RELY ON THE PROVISIONING OF THIRD PARTY SERVICE PROVIDERS, WE OFFER NO GUARANTEES WITH RESPECT TO TIMES AND WILL NOT BE HELD RESPONSIBLE FOR ANY FORM OF DAMAGES OR REMEDIES AS A RESULT OF CUSTOMER RELIANCE ON SUCH TIMES.
11.3 Unless a specific term is agreed in the Order, the Agreement shall come into effect from the date this Agreement is accepted and authorised by us and shall continue for the standard Committed Period of twenty-four (24) months from the Start Date for each Service.
11.4 In the event a new Order is signed that requires a Committed Period pursuant to clause 11.3, you acknowledge it is commercially unfeasible to distinguish which individual elements of the Service relate to which Order. Subsequently the Committed Period automatically resets to a new standard period of twenty-four (24) months from the signing of the newest Order unless expressly stated otherwise on the Order form.
11.5 EACH TIME-SPECIFIC SERVICE WILL CONTINUE FOR DURATION OF THE COMMITTED PERIOD AND SHALL AUTOMATICALLY RENEW UNDER THE SAME TERMS FOR AN IDENTICAL COMMITTED PERIOD UNLESS YOU NOTIFY US IN WRITING GIVING NO LESS THAN 3 MONTHS PRIOR NOTICE. IF YOU ARE OPERATING WITHIN AN AGREED TRIAL PERIOD, WE REQUIRE 14 DAYS WRITTEN NOTICE TO CANCEL OTHERWISE THE STANDARD COMMITTED PERIOD APPLIES. FAILURE TO PROVIDE THE AGREED NOTICE TERM WILL RESULT IN THE EARLY TERMINATION FEE BECOMING DUE PURSUANT TO CLAUSE 12.3.
12.1 If you fail to pay the Charges when due and in accordance with the obligations under clause 8 this will be deemed to be a material breach pursuant to clause 12.2.
12.2 We may terminate this Agreement with immediate effect by notice in writing if you:
(a) fail to pay any sums due to us within 7 days of receiving written notice from us indicating the sums due and demanding payment;
(b) fail to reach the Agreed Usage for a period of 90 consecutive days;
(c) are in material breach of this Agreement, the breach is capable of remedy and you fail to remedy that breach within 7 days of receiving the notice specifying the breach;
(d) are in material breach of this Agreement and that breach cannot be remedied (and for this purpose, breach of the confidentiality obligations under clause 17 constitutes a non-remediable material breach);
(e) have any licence under which you have the right to run your telecommunication system and connect it to our system revoked or amended, or such licence otherwise ceases to be valid;
(f) become uncreditworthy in the opinion of a recognised credit reference agency (for which Concert Networks accepts no liability for the accuracy of the opinion);
(g) make a material misstatement in the details provided to us for us to provide the Service;
(h) do not complete a site survey satisfactorily for whatever reason;
(i) make any voluntary arrangements with your creditors (including any voluntary arrangement as defined by the Insolvency Act 1986) or become subject to an administrative order or go into liquidation, whether voluntary or compulsory (other than for the purposes of reconstruction or amalgamation), or an encumbrancer takes possession of or a receiver is appointed in respect of any of your assets;
(j) cease or threaten to cease to carry on business or being or becoming or appearing unable to pay your debts within the meaning of sections 123 or 268 of the Insolvency Act 1986;
(k) are presented with a petition or a meeting is convened for the purpose of considering a resolution for the making of an administration order, the winding up, bankruptcy, or your dissolution; or
(l) are unable for any reason to perform any of your obligations hereunder for a continuous period of 30 days or for a total of 90 days in any 12 consecutive months.
12.3 In the event of termination by us in accordance with this clause during the Committed Period or Renewal Term you will, in addition to paying any unpaid Charges due as at the date of termination, be liable to pay us the Early Termination Fee.
12.4 We may terminate this Agreement if our Licences are terminated or expire or are modified in any way which has a material impact on our ability to provide the Services.
12.5 On termination of the Agreement each party will return to the other party any confidential information in its possession.
12.6 On termination of the Agreement you agree to allow us to promptly to remove the Equipment. If you delay prompt removal of the Equipment, we shall, until such removal is effected, be entitled to continue to charge you and you shall pay such Charges together with any additional costs and expenses incurred by us as a result of such delay.
The termination of this Agreement for whatever cause shall not affect any provision of this Agreement which is expressed to survive or operate in the event of termination of this Agreement and shall not prejudice or affect the rights of any party against the other party in respect of any breach of this Agreement or in respect of any moneys payable by one party to another in relation to any period prior to termination.
13 Cancellation and Suspension
13.1 If you cancel a Service during the Committed Period or Renewal Term (if applicable), you agree to pay the Charges immediately in full including any Early Termination Fee or other penalties.
13.2 We may at our discretion suspend any Services without compensation having notified you beforehand either verbally or in writing if one or more of the following events occurs:
(a) you fail to meet your obligations in relation to the Facility Limit and notice requirements concerning abnormal demands on our network;
(b) you have failed to pay any invoices, either related or non related, to us or related companies when due;
(c) we impose credit limits on you following credit checks from a recognised credit reference agency and you reach such limits and fail to pay outstanding Charges or regular instalment payments in advance as we deem appropriate;
(d) we have reasonable cause to believe that you or any third party is acting in breach of the permitted use of services in clause 4;
(e) technical limitations exist or arise which make the provision of the Services impossible or materially limit the functionality or performance of the Services;
(f) if and to the extent that in our opinion your conduct is likely to result in the breach of any law or is otherwise prejudicial to our interests or has a materially detrimental impact on our reputation;
(g) it is necessary for operational reasons such as upgrades to the Services or regular or emergency maintenance; and
(h) we are obliged to comply with any order, instruction or request of a competent governmental regulatory or other authority.
We will endeavour to give you notice of our intention to suspend the Services and opportunity to cure if practicable depending on the nature of the breach and if it is in your control to mitigate. In respect of suspension due to reasons stated in clauses 13.3 (d)-(f), we will restore the Services as soon as we are reasonably able to do so. Suspending the Services does not restrict our rights to terminate the Agreement pursuant to clause 12.
If we incur any expenses as a result of applying a suspension and/or reconnecting the Services and the suspension was as a direct result of your breach, fault or omission (but not otherwise), you shall reimburse us for all expenses incurred as appropriate.
14 Force Majeure
14.1 For the purposes of this Agreement, the expression “Force Majeure” shall mean any cause affecting the performance by a party of its obligations arising from acts, events, omissions, happenings or non-happenings which are completely beyond its reasonable control including (but without limiting the generality thereof) governmental regulations, fire, flood, other natural disasters, or any disaster or an industrial dispute affecting a third party for which a substitute third party is not reasonably available (each, a “Force Majeure Event”).
14.2 Neither party shall in any circumstances be liable to the other for any loss of any kind whatsoever including but not limited to any damages or abatement of charges by reason of any failure or delay in the performance of its obligations hereunder to the extent that it is wholly attributable to the occurrence the claimed Force Majeure Event.
14.3 If either party shall become aware of circumstances of Force Majeure which give rise to or which are likely to give rise to any failure or delay on its part, it shall immediately (or as soon as reasonably practicable thereafter) notify the other by the most expeditious method then available and shall inform the other of the period which it is estimated that such failure or delay shall continue.
14.4 For the avoidance of doubt it is hereby expressly agreed that only Force Majeure Events shall afford the relief from liability for failure or delay in the performance of a party’s obligations hereunder, described in this clause 14.
14.5 Both parties shall make all reasonable efforts to minimise the frequency, severity and duration of Force Majeure events.
15 Intellectual Property
15.1 Except as expressly set out in this Agreement, all intellectual property rights in our Equipment and Technology will remain with us. This Agreement shall not be interpreted as an assignment or grant any licence to you of any copyright, registered design, trade mark or other proprietary right belonging to us, our suppliers or licensors and we shall retain ownership of any such copyright, registered design, trade mark or other proprietary right to which we, our suppliers or licensors may be entitled.
15.2 Where Software is provided to enable you to make use of the Services, we grant to you a non-exclusive, non-transferable licence to use the Software solely for the purpose of receiving the Services. Where any additional terms and conditions apply to
your use of Software on an ad hoc basis we will make these known to you and you will, if requested, sign any agreement reasonably required to protect the owner’s rights in the Software.
15.3 You will not, directly or indirectly, copy, reverse engineer, decompile, disassemble (or otherwise attempt to derive source code or other trade secrets from us) or modify the Software without our prior written consent (except as permitted by law) and will not distribute or disclose the Software to any third party.
15.4 Notwithstanding anything to the contrary within this Agreement, we will not be prohibited or enjoined by you from utilising any skills or knowledge of a general nature acquired during the course of providing the Services, including without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of ours.
15.5 You acknowledge that we have no obligation to review or edit any of your information or third party information which you store on or transmit through our Equipment or use in connection with the Services. However, we reserve the right to access, retain and disclose copies of such information for the purposes of:-
(a) Correcting, maintaining and improving the Services;
(b) Complying with any applicable laws, regulations, statutory instruments or the terms of our licences and contracts;
(c) Observing the performance of the Services including for Service Level monitoring;
(d) Retaining a record of activity on our Equipment or systems;
(e) Complying with any request for information or disclosure from a court or other appropriately authorised body.
15.6 You shall ensure that before using any material in relation to the Services or in any of your advertising or promotional material that all rights, licences, permissions and consents including any intellectual property rights are obtained and all requirements of the law are complied with in relation to such material and its use.
15.7 You shall immediately give notice in writing to us if you become aware of any:
(a) infringement or suspected infringement of any of the intellectual property rights; or
(b) claims made or threatened that the intellectual property rights infringe the rights of any third party.
15.8 In the case of any infringement or suspected infringement by any third party of the intellectual property rights:
(a) We shall in our sole discretion decide what action if any to take;
(b) We shall have sole control over and conduct of all claims and proceedings.
15.9 You will provide us with all assistance as we may reasonably require in the conduct of any claims or proceedings.
15.10 We shall be entitled to retain all sums recovered in any action for our own account.
16 Data Protection
16.1 The Customer hereby notifies Concert Networks that the Customers Material contains personal data as defined in Section 1(1) of the Data Protection Act 1998 (the Customers Personal Data) and warrants to Concert Networks that the Customer has notified under the said Act in respect of the Customers Personal Data.
16.2 The Customer warrants and undertakes to Concert Networks that:
(a) the Customers Personal Data has been obtained and processed (in so far as the Customers Personal Data has been processed) lawfully;
(b) the Services will be entirely consistent with and appropriate to the specified and lawful purposes for which the Customer has notified under the said Act in respect of the Customers Personal Data (the Notified Purposes);
(c) the Customer has not hitherto and will not during the continuance of these Terms use or disclose the Customers Personal Data or any part thereof in a manner incompatible with the Notified Purposes;
(d) the Customers Personal Data is adequate, relevant and not excessive in relation to the Notified Purposes; and
(e) the Customers Personal Data is accurate and the Customer shall keep the Customers Personal Data fully up to date at all times during the continuance of these Terms.
16.3 The Customer shall indemnify Concert Networks against any loss or damage which Concert Networks may sustain or incur as a result of any breach by the Customer of the provisions of this Clause. In performing its Services Concert Networks may process (albeit for diagnostic or investigative purposes only) personal data belonging to the Customer. Concert Networks hereby warrants to the Customer that in such circumstances it will in respect of such personal data observe all the obligations pertaining to a data processor under the Data Protection Act 1998 and will indemnify the Customer against all breaches of the said Act by Concert Networks in respect of the Customers data.
17.1 Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible from that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to, our Technology and the terms and conditions of the Agreement. Neither party shall whilst the Agreement is in force or thereafter use in any way, for its own account or of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement (and to disclose it only to those of their respective employees or, where allowed, sub-licensees or sub-contractors to whom, and to the extent that, disclosure is reasonably necessary for the purposes of this Agreement), nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary) any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information.
17.2 These restrictions will not apply to any information which:
(a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; or
(b) is or becomes generally available to the public other than as a result of a breach of an obligation under this clause 17; or
(c) is acquired from a third party who owes no obligation of confidence in respect of the information; or
(d) is or has been independently developed by the recipient.
17.3 Notwithstanding clause 17.1, we will be entitled to disclose your Confidential Information to a third party to the extent that this is required by any court of competent jurisdiction or by a governmental or regulatory authority, or where there is a legal right, duty or requirement to disclose such confidential information, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
18 Limitation of Liability
18.1 Nothing in this Agreement shall limit either parties’ liability for fraud, or for death or personal injury resulting from its own negligence or that of its employees, sub-contractors or agents
18.2 In the event that either the Service fails or for any other reason and the Customer’s calls are made via, diverted to, or leaked to another telephone call provider, we shall not be liable for any extra costs incurred by the Customer with that company.
18.3 We are not liable to you whether under this Agreement, tort (including negligence, breach of contract or statutory duty) or otherwise for direct or indirect loss of profits, anticipated profits, business, goodwill or anticipated savings, or for any indirect or consequential loss or damage including, but not limited to, claims against you from third parties and loss of or damage to your data even if such loss was reasonably foreseeable or we had been advised of the possibility of you incurring the loss.
18.4 Subject to clauses 18.1 and 17.3, our entire liability to you in contract, tort, negligence or otherwise in relation to or arising out of this Agreement is limited to the greater of £25,000 (twenty five thousand pounds) or a sum equal to one month’s billing for the Services (based on average billing for the previous three months of the date of the claim concerned) for all events, claims, losses however arising.
18.5 Except as expressly set out in this Agreement and to the extent permissible by law all other warranties, terms and conditions whether express or implied by law, custom or otherwise are excluded.
18.6 Nothing in these conditions shall impose any liability upon us in respect of any non-performance or Services which are not performed in accordance with the Agreement arising out of your own acts, omissions, negligence or default.
18.7 You must bring any legal proceedings against us arising from this Agreement within 3 years from the date when you first become aware or ought reasonably to have become aware of the facts giving rise to the liability or alleged liability or within the relevant statutory limitation period whichever is the earlier.
18.8 Subject to clause 18.7, no delay in enforcing any of the provisions of this Agreement will affect or restrict either party’s rights arising under this Agreement. No waiver of any provision of this Agreement will be effective unless made in writing.
18.9 We irrevocably and unconditionally waive any rights and/or remedies you may have to the fullest extent permitted by law, (including without limitation the right to claim damages and/or to rescind this Agreement) in respect of any misrepresentation other than a misrepresentation which is contained in this Agreement or a misrepresentation which was made fraudulently.
19.1 We may assign, sub-contract or otherwise transfer this Agreement or any part of it to any third party in our absolute discretion.
19.2 You may not assign, sub-licence or otherwise transfer this Agreement or any of your rights or obligations arising under it without our prior written consent, which will not be unreasonably withheld.
20 Entire Agreement
20.1 This Agreement supersedes all prior agreements, undertakings and representations between the parties and constitutes the entire agreement between the parties relating to its subject matter (except that neither party excludes liability for any fraudulent pre-contractual misrepresentations on which the other party can be shown to have relied), whether oral or written.
20.2 Failure by either party to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.
20.3 A third party which is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
20.4 In the event and to the extent of any conflict between the terms contained within this Agreement and the Order then the Order will take precedence.
20.5 Should any provision of this Agreement be held to be void or voidable the remaining provisions of this Agreement will continue in full force and effect.
21 Law and Disputes
21.1 This Agreement will be construed in accordance with and governed by the laws of England.
21.2 In the event of any dispute relating to or arising from this Agreement, the parties irrevocably agree for our exclusive benefit to submit to the courts of England jurisdiction to settle any claim or matter arising in relation to this Agreement. However, nothing in this clause shall limit our right to take any action or proceeding arising out of or in connection with any of your obligations in any other court of competent jurisdiction, whether concurrently or not with any other proceedings or action taken against you in any jurisdiction.
22 Costs and Expenses
22.1 Each party shall pay its own costs relating to the negotiation, preparation, executing and implementation by it of this Agreement and of each document referred to in it.
23 Non Solicitation
23.1 You agree that during the term of this Agreement and for a period of one year following its termination that you will not solicit or induce any of our officers, employees, agents or contractors to terminate their employment or engagement with us.
24.1 Notices must be in writing and delivered by first class registered post, or recorded delivery addressed to the other party at the address shown in the prevailing Order or any other address as updated in accordance with this clause.
24.2 Notices will be deemed to be served on the second working day after sending.