0845 363 1151Terms and Conditions relating to provision of VoIP services and equipment by Callagenix Limited Trading as VoiPInclusive.
ACKNOWLEDGEMENT & ACCEPTANCE OF TERMS OF SERVICE
VoipInclusive is a trading style of the Callagenix Group and Callagenix Limited. In these terms and conditions, and within all correspondence and publications, electronic or otherwise, VoipInclusive shall be taken to mean the Callagenix Group and Callagenix Limited in particular. VoipInclusive Services are owned and operated by the Callagenix Group, and are provided to business users under the 'Terms & Conditions' here in. VoipInclusive may at any time modify the 'Terms & Conditions' without any prior notice. Any such changes will be displayed on the VoipInclusive website at URL www.VoipInclusive.co.uk or any subsequent URL as VoipInclusive may determine. Your continued use of the Service (as defined below) thereafter will constitute acceptance of such changes. The 'Terms & Conditions' and the User's registration information are the complete agreement between the User and VoipInclusive regarding this Service, and supersede any other prior agreements or communications between VoipInclusive and the User. This agreement will commence when your credit card transaction to pay for the services is complete.
1.DEFINITIONS AND INTERPRETATION
1.1The definitions and rules of interpretation in this condition apply in these terms and conditions ("Conditions").
"Business Day"
a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
"Broadband Connection"
the broadband Internet connection provided by the Supplier to the Customer for use in connection with the Services.
"Commencement Date"
has the meaning set out in Condition 2.2.
"Contract"
the contract between the Supplier and the Customer for the installation of Equipment and provision of Services in accordance with these Conditions.
"Contract Rate"
the price of the Services (excluding the Installation Services) as set out in the Order.
"Contract Term"
has the meaning set out in Condition 3.1.
"Customer"
the person or firm who purchases the Equipment and Services from the Supplier.
"Delivery Location":
has the meaning set out in Condition 4.1.
"Equipment"
the equipment (or any part of it, including without limitation software and VoIP Software) set out in the Order and provided to the Customer under the Contract.
"Force Majeure Event"
has the meaning given to it in Condition 17.1.
"Installation Fee"
the price of the Installation Services as set out in the Order.
"Installation Services"
has the meaning given to it in Condition 4.1.
"Intellectual Property Rights"
all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"Order
the Customer's order for the supply and installation of Equipment and Services, as set out in writing between the Customer and Supplier.
"Services"
the services supplied by the Supplier to the Customer as set out in the Order, including the Broadband Connection.
"Service Charge"
all charges, fees, costs and expenses (including without limitation premium rate calls and calls to 087x numbers) incurred by the Customer (which for the avoidance of doubt are not included in the Contract Rate) and invoiced by the Supplier in accordance with Condition 11.4. The Supplier will endeavour to provide a tariff of all Service Charges with the Order.
"Supplier"
Callagenix Limited, registered in England and Wales with company number 03963819 whose place of business is Top Lodge, Harleyford Estate, Henley Road, Marlow, Buckinghamshire SL7 2DX.
"VoIP Software"
the software supplied under the terms of the Contract by the Supplier to the Customer for use of the Services.
1.2In these Conditions, the following rules apply:
1.2.1a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4any 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; and
1.2.5a reference to writing or written includes faxes and e-mails.
2.BASIS OF CONTRACT
2.1The Order constitutes an offer by the Customer to purchase Equipment and/or Services from the Supplier in accordance with these Conditions.
2.2The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (the "Commencement Date").
2.3The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4These Conditions and the Supplier's terms of business and privacy policy, available at http://www.callagenix.com/other/terms.html, apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5Any 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.
2.6All of these Conditions shall apply to the supply of both Equipment and Services except where application to one or the other is specified.
3.THE TERM
3.1Unless terminated in accordance with Condition 15, the Contract shall continue for a period of 24 months following the Commencement Date (the "Contract Term").
3.2At the expiry of the Contract Term, the Contract shall automatically renew for an additional period of 12 months.
4.Delivery and Installation of Equipment
4.1The Supplier shall deliver and install the Equipment (the "Installation Services") to the location set out in the Order or such other location as the parties may agree (the "Delivery Location") at a time agreed in writing between the Supplier and Customer. Delivery of the Equipment shall be completed on the Equipment's arrival at the Delivery Location.
4.2The Supplier may use the Customer's CAT5 network if it is deemed suitable by the Supplier, but the Supplier shall not be responsible for to running any cabling to facilitate the Equipment to work. Any such cabling shall be organised or procured by the Supplier, at the Customer's cost.
4.3Any dates quoted for delivery of the Equipment or provision of the Installation Services are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Equipment or provision of the Installation Services that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the Installation Services.
4.4If the Supplier fails to deliver and install the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement equipment of similar description and quality in the cheapest market available, less the price of the Equipment. The Supplier shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event, the Customer's failure to provide the Supplier with adequate delivery instructions for the Equipment and its installation or any relevant instruction related to the supply of the Equipment.
4.5The Supplier warrants to the Customer that the Installation Services will be provided using reasonable care and skill.
5.Customer's Installation Obligations
5.1The Customer shall:
5.1.1prepare the Customer's premises for the provision of the Installation Services;
5.1.2provide the Supplier, its employees, agents, consultants and subcontractors with access to the Customer's premises and other facilities as reasonably required by the Supplier to provide the Installation Services; and
5.1.3provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects.
5.2If the Supplier's performance of any of its obligations in respect of the Installation Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation under Condition 5.1, the Supplier shall be entitled to delay provision of the Installation Services or rely on the Customer's default to relieve it of any and all obligations under the Contract and the Supplier shall not be liable for any costs, expenses or losses occasioned by the delay in performance or cancellation of the Contract.
6.Quality of Equipment
6.1The Supplier warrants that on delivery, and for a period of 24 months from the date of delivery (the "Warranty Period"), the Equipment shall:
6.1.1conform in all material respects with its description;
6.1.2be free from material defects in design, material and workmanship;
6.1.3be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
6.1.4be fit for any purpose held out by the Supplier and in particular for the use of the Services.
6.2Subject to Condition 6.3, if:
6.2.1the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Equipment does not comply with the warranty set out in Condition 6.1;
6.2.2the Supplier is given a reasonable opportunity of examining such Equipment; and
6.2.3the Customer (if asked to do so by the Supplier) returns such Equipment to the Supplier's place of business at the Customer's cost,
6.2.4the Supplier shall, at its option, repair or replace the defective Equipment.
6.3The Supplier shall not be liable for the Equipment's failure to comply with the warranty in Condition 6.1 if:
6.3.1the Customer makes any further use of such Equipment after giving a notice in accordance with Condition 6.2;
6.3.2the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;
6.3.3the Customer alters or repairs such Equipment without the written consent of the Supplier; or
6.3.4the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
6.4Except as provided in this Condition 6, the Supplier shall have no liability to the Customer in respect of the Equipment's failure to comply with the warranty set out in Condition 6.1.
6.5The terms of these Conditions shall apply to any repaired or replacement Equipment supplied by the Supplier under Condition 6.2.
7.Title and Risk
7.1The risk in the Equipment shall pass to the Customer on completion of delivery.
7.2Title to the Equipment shall not pass to the Customer at any time and all Equipment supplied by the Supplier to the Customer shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
7.3For the duration of the Contract Term, the Customer shall:
7.3.1hold the Equipment on a fiduciary basis as the Supplier's bailee;
7.3.2ensure the Equipment remains readily identifiable as the Supplier's property;
7.3.3not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
7.3.4maintain 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;
7.3.5notify the Supplier immediately if it becomes subject to any of the events listed in Conditions 15.1.2 to 15.1.12; and
7.3.6give the Supplier such information relating to the Equipment as the Supplier may require from time to time.
7.4Nothing in Condition 7.3 shall prevent the Customer from using the Equipment in connection with the Services.
7.5If the Customer becomes subject to any of the events listed in Conditions 15.1.2 to 15.1.12 (inclusive), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Equipment 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.
8.Supply of Services
8.1The Supplier shall provide the Services to the Customer in accordance with the terms of the Order in all material respects.
8.2The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or for technical or operational reasons or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
8.3The Supplier will use all reasonable endeavours to ensure that the Services are available for the Customer's use in accordance with the standards set out in the Order.
8.4The Supplier shall endeavour to correct as soon as is reasonably and practically possible any technical fault with the Service provided that the Supplier is notified of the fault and that the fault is not attributable to any act or omission of the Customer. The Customer shall indemnify the Supplier against any cost incurred by the Supplier in connection with repairs carried out under this Condition 8.4 where the fault relates to any act or omission (whether negligent or otherwise) or breach by the Customer or any fault occasioned by use of equipment not provided by the Supplier.
8.5Use of the Service is subject to a 'fair usage policy' and if, in the sole opinion of the Supplier, the Customer is making excessive use of the Services, the Supplier may put the Customer on a more suitable tariff to be determined by the Supplier with reference to the Customer's usage. For guidance, the Services included in the Service Charge:
8.5.1all charges for calls, with the exception of any call lasting longer than 30 minutes, in respect of which an additional charge will payable for the additional time of such call over 30 minutes;
8.5.2any calls to revenue generation numbers (i.e. numbers beginning 09, 084, 087, 070); and
8.5.3any calls to international destinations where the call cost is shown in the Supplier's price list, available at [http://www.callagenix.com/pricing/overview.html], (the "Price List") as greater than 6p per minute. The Supplier, at its sole discretion, will allow calls to these destinations to be made, but will make an additional charge for such call at the rates set out in the Price List.
The Services are intended and priced for general business users and are not designed for call centres. The Supplier does offer services ideally suited to call centre operators, and should the Customer require a broader package, it should contact the Supplier for further details. If the Supplier becomes aware that a Customer is using the Services to operate a call centre, the Supplier reserves the right immediately and without notice to increase the Contract Rate, to limit the number of calls and call time allowed or to terminate the Services at the Supplier's sole discretion. A Customer shall be deemed to be operating a call centre user if it averages more than 50 calls per user per working day.
9.Customer's Obligations
9.1The Customer shall:
9.1.1ensure that the terms of the Order and the information it provides therein are complete and accurate;
9.1.2co-operate with the Supplier in all matters relating to the Services; and
9.1.3obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
9.2The Customer shall not use the Services:
9.2.1for the transmission or communication of any material which is of an offensive, abusive or intimidating nature;
9.2.2in a manner which constitutes a violation or infringement of the rights of any other party including without limitation any Intellectual Property rights;
9.2.3in a way that does not comply with licences applicable to the Customer and whether in relation to the Equipment or otherwise;
9.2.4in a manner which is fraudulent or in connection with an activity which is a criminal offence;
9.2.5in a manner that invades another's privacy, causes annoyance, inconvenience or needless anxiety to any person;
9.2.6in a manner that may disrupt or interfere with our network or Services or cause a host or the network to crash;
9.2.7for the purpose of launching 'denial of service' attacks, 'mail bombing' attacks, or 'flooding' attacks against a host or network, whether such host or network is operated by the Supplier; or
9.2.8in a manner that places unusual or excessive burdens on the Services, for example by making or receiving large volumes of calls or in a manner which may detrimentally affect the supply of service to the Supplier's other customers.
9.3If the Customer is, in the sole opinion of the Supplier, in breach of Condition 9.2.8, the Supplier shall notify the Customer of this. If the level of use of the Services does not decrease immediately after receiving the notice, the Supplier may terminate the Services or, at the Supplier's determination, place the Customer on a tariff which better represents the Customer's usage.
9.4The Customer shall not use the Broadband Connection for any purpose other than in use of the Services.
9.5The Customer undertakes that the equipment used in connection with the Services (including Equipment supplied by the Supplier) shall be in good working order and conform at all times to the requirements of any applicable legislation or regulation.
9.6The Customer shall not allow an alternative supplier to override or bypass the Services provided by the Supplier either through the installation of additional equipment, manual override dial codes or via the relevant BT exchange.
9.7The Customer shall take reasonable care of the Equipment and shall indemnify the Supplier against any physical damage to or loss of the Equipment.
VoIP Software
9.8The Customer shall not:
9.8.1use the VoIP Software for any purpose other than those purposes for which it was licensed; or
9.8.2copy, adapt, reverse engineer, decompile or disassemble the VoIP Software in any way (except with the express written permission of the Supplier and any licensor).
10.Emergency Services
10.1The Customer shall provide the Supplier with details of the physical location of the Equipment and location from which the Services are used and shall notify the Supplier if there is any change in such locations. The Customer acknowledges that the Supplier can only route calls to the correct emergency service if provided with up-to-date location details.
10.2The Customer acknowledges that the Services may cease to operate if there is a power failure or a failure in the underlying data network. The Customer further acknowledges that such failures may prohibit calls to the emergency services. Wherever possible the Customer should make alternative arrangements and maintain a primary telephone line. The Supplier cannot be held responsible if there are no alternative arrangements in place to call an emergency service.
10.3The Customer shall not use the Services for the transmission or communication of any material which is or is intended to be an unwarranted call to the emergency services.
11.Charges and Payment
11.1The price of the Services (including the Installation Services) shall be the Installation Fee and the Contract Rate as set out in the Order.
11.2The Customer shall pay the Installation Fee at the time the Order is submitted to the Supplier. The Supplier shall not be obliged to provide the Installation Services, the Equipment or the Services until such time as the Installation Fee is paid in full.
11.3The Contract Rate shall be paid in advance in full on the last day of each calendar month (the "Payment Date") or, where the Payment Date falls on a day other than a Business Day, the next Business Day.
11.4The Service Charge shall be paid in arrears in full on the Payment Date in the month following that to which the Service Charge relates.
11.5Time for payment of both the Installation Fee and Contract Rate shall be of the essence of the Contract.
11.6All 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 Installation Services at the same time as payment is due for the supply of the Services or Installation Services.
Credit Card Payments
11.7In the event that the Supplier is unable to take a continuous authority payment from the Customer's credit card then the Supplier shall inform the Customer by email and shall prompt the Customer to make a payment by alternative means in order to allow the Supplier to continue providing the Services. In the event that payment is not made within 20 Business Days, the Supplier may, in its sole discretion, immediately cancel the Services and cut with Broadband Connection and/or terminate the Contract.
11.8Upon payment of any late payment due, the Supplier shall reconnect the Customer's Broadband Connection and resume the provision of the Services, subject to the payment by the Customer of a reconnection fee and an administration fee for the cancelling of the payment mandate. The Customer shall also be liable for the further administration fee pursuant to Condition 11.11 below. The provision of the Services shall not be resumed until such payments have been made.
11.9Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the Payment Date, the Supplier shall have the right to charge interest on the overdue amount at the rate of three per cent per annum above the then current Bank of England base lending rate accruing on a daily basis from the Payment Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
11.10The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11.11The Supplier shall further be entitled to charge the Customer a discretionary administration fee in the sum of £25 plus VAT in the event that the Customer changes or cancels any payment arrangement without the prior consent of the Supplier.
12.Intellectual Property Rights
As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Equipment and Services shall be owned by the Supplier. The Supplier licenses all such rights to the Customer on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services. If the Contract terminates, this licence shall automatically terminate.
13.Confidentiality
13.1The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain.
13.2The Customer may disclose such information:
13.2.1Tto its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer's obligations under the Contract; and
13.2.2Tas may be required by law, court order or any governmental or regulatory authority.
13.3The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this Condition 13.
13.4The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
13.5The Supplier shall keep confidential all information and data of the Customer provided to it in connection with the Contract, and on the termination of the Contract, shall deal with such data and information as set out in Condition 16.2.
14.Limitation of Liability
14.1Nothing in these Conditions shall limit or exclude the Supplier's liability for:
14.1.1death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
14.1.2fraud or fraudulent misrepresentation;
14.1.3breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
14.1.4breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
14.1.5defective products under the Consumer Protection Act 1987.
14.2Subject to Condition 14.1:
14.2.1the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from the Supplier's deliberate personal repudiatory breach of the Contract; and
14.2.2the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by the Supplier's deliberate personal repudiatory breach shall not exceed the Contract Rate payable in respect of a single calendar month.
14.3Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.4This Condition 14 shall survive termination of the Contract.
15.Termination
15.1Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
15.1.1the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
15.1.2the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
15.1.3the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
15.1.4a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
15.1.5the Customer (being an individual) is the subject of a bankruptcy petition or order;
15.1.6a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
15.1.7an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
15.1.8a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
15.1.9a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer ;
15.1.10any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 15.1.1 to 15.1.9 (inclusive);
15.1.11the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
15.1.12the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
15.2Without limiting its other rights or remedies, the Supplier may terminate the Contract or suspend provision of the Installation Services or Services:
15.2.1by giving the Customer three months' written notice;
15.2.2with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the Payment Date.
16.Consequences of Termination
16.1On termination of the Contract for any reason:
16.1.1the Customer shall immediately pay to the Supplier all of the Supplier's outstanding charges for the remainder of the Contract Term and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
16.1.2the Customer shall return all of the Equipment. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of it. Until it has been returned, the Customer shall be solely responsible for its safe keeping and will not use it for any purpose not connected with this Contract;
16.1.3the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
16.1.4Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
16.2On the termination of the Contract, all data and information of the Customer held by the Supplier shall be deleted as soon as reasonably practicable following the termination of the Contract, and the Supplier undertakes not to disclose or divulge any of the Customer's data or information to any third parties. If the Customer so requests, the Supplier shall arrange for the Customer's data and information to be returned to the Customer, at the Customer's cost.
17.General
17.1Force majeure
17.1.1For the purposes of this Contract, "Force Majeure Event" means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
17.1.2The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
17.1.3If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than [four] weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
17.2Assignment and Subcontracting
17.2.1The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
17.2.2The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.3Notices
17.3.1Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
17.3.2Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
17.3.3This Condition 17.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this Condition, "writing" shall include e-mails and for the avoidance of doubt notice given under this Contract shall be validly served if sent by e-mail.
17.4Waiver and cumulative remedies
17.4.1A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
17.4.2Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
17.5Severance
17.5.1If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
17.5.2If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17.6Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
17.7A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.8Any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.
17.9This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Callagenix Limited
September 2010
