SWIFT COMMUNICATIONS LTD TERMS AND CONDITIONS
1.1 The definitions and rules of interpretation contained in Schedule 1 will apply to these Terms and Conditions.
1.2 A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.3 Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular and a reference to one gender will include a reference to the other genders.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 Any words following the terms “including”, “include”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 Any reference to “parties” is a reference to the parties in this Agreement and a “party” will mean either party as the context permits.
2. CONTRACT TERMS
2.1 Each Order for the supply of Products and/or Services will constitute a separate Contract between You and Us incorporating the following documents: 2.1.1 the Order; 2.1.2 any schedule for Products and/or Services specified in the Order; and 2.1.3 these Terms and Conditions. 2.2 Each Order you confirm and any document of equivalent nature will constitute an offer by You to receive the Products and/or Services. If We choose to accept Your offer, then the date of acceptance by Us is the point the Contract will be formed between You and Us. The date of our acceptance of your offer will be the “Effective Date” for the purposes of the Contract. Alternatively, where We receive Your purchase order and commence work without sending an acceptance to You, the Contract will be formed on the date we commence work and that date will be the Effective Date. 2.3 Any terms that You seek to impose or incorporate into the Contract, or which are implied by trade, custom, practice or course of dealing, will be excluded from the Contract. This applies even where We commence work following receipt of Your purchase order. 2.4 Any error or omission in Our sales literature, quotations or other document issued by Us will be subject to correction without liability on Our part, unless such error would constitute a fundamental breach on Our part. 2.5 You are responsible for ensuring that the Order is accurate and complete in all respects and for giving all relevant information concerning the Products and/or Services to Us. 2.6 If there is a conflict or inconsistency between some or all of the documents which make up the Contract, the order of priority for interpretation will be as set out in clause 2.1.
3. YOUR OBLIGATIONS
3.1 You will: 3.1.1 co-operate with Us in all respects in relation to the provision of the Services and supply of the Products;
3.1.2 ensure that all details of the Order are complete and accurate, in all respects, when the Order is delivered to You and in any event before the commencement of the Services or the dispatch of the Products; 3.1.3 provide Us and Our employees, agents and subcontractors with access to Your premises, office accommodation and other facilities as We may reasonably require in order to deliver the Products and provide the Services and ensure that such premises are prepared for the delivery of our Products and/or Services; 3.1.4 provide Us with such information and materials as We may reasonably require to supply the Products and/or the Services, and ensure that such information is accurate in all material respects; 3.1.5 comply with all requirements of the manufacturer regarding the use of the Products and Deliverables (if any); 3.1.6 grant to Us a royalty free, non exclusive, non transferrable licence to use Your software, documentation, processes, procedures and data but solely to ensure that we may provide the Products and/or Services; 3.1.7 obtain and maintain all necessary licences, permissions and consents required for the use of the Services before the date on which they are due to start. 3.1.8 at all times conduct business in a professional and courteous manner
3.1.9 tell Us immediately, of any changes in the location of the Equipment, faults, abnormalities or other issues which might affect the supply of the Products and/or Services and all and any relevant information that the We may need to resolve any issue, including full access to all systems, passwords and other security devices to which the Equipment is subject;
3.1.10 if you raise an issue with Us, ensure that You are available to assist Us at any reasonable time, with any matter required to resolve the issue;
3.1.11 at all relevant times during the delivery of the Products and/or Services duplicate all data and programs held on the Equipment and keep such duplicates in a separate, safe place away from the Equipment;
3.1.12 ensure that, at all times, an adequate supply of electricity is available for the correct and safe operation of the Equipment; and
3.1.14 comply at all times with all statutory requirements, bylaws, obligations, regulations, recommendations or instructions relating to the use, operation or testing of the Equipment. 3.2 You warrant that:
3.2.1 You have effective insurance cover in respect of all risks relating to the operation of the Equipment; and
3.2.2 the Equipment and all software associated with it is operated legally and is not in breach of any software or other licensing agreements or any local laws which might affect it.
3.2.3 You own the Equipment or have the right to allow us to attach Products or provide the Services to it. 3.3 If We are unable to perform any of Our obligations in respect of the Contract due to any act or omission by You then We will have the right to suspend delivery of the Products or performance of the Services until such time as the said issues are resolved to Our reasonable satisfaction and will bear no responsibility for any losses you incur as a result.
4. CHARGES AND PAYMENTS
4.1 The price of the Products will be set out in the Order. The price of the Products includes only those matters referred to in the Order and we may charge additional sums for any unforeseen costs and expenses we incur in the provision, delivery or installation of the Products and/or Services
4.2 The charges for the Services will be as set out in the Order. Where such charges are on a time and materials basis: 4.2.1 the charges will be calculated in accordance with Our standard daily or hourly fee rates, as set out in the Order or, if no specification is given in the Order, as prescribed by Us from time to time; 4.2.2 Our standard daily fee rates are calculated on the basis of a 7.5 hour day from 9.00 am to 5.30 pm with one hour for lunch worked, per person on Business Days; and 4.2.3 Unless they are specified as being included in the Order, we will be entitled to charge You for any significant expenses, reasonably incurred, to visit your premises and for the travel and subsistence associated therewith, together with, the reasonable cost of any services provided to Us by third parties and the cost of any materials, in relation to the supply of the Products and/or Services. 4.3 Unless the Order specifies otherwise: 4.3.1 in respect of the Products, We will raise an invoice on or at any time after we have delivered or attempted delivery; 4.3.2 in respect of Services, We will raise an invoice on completion of the Services; and 4.3.3 in the event that Products and/or Services are supplied over a period of time, greater than 1 month, and notwithstanding clauses 4.3.1 and 4.3.2, We have the right to raise interim invoices for such Products and Services in arrears whenever We choose, on a quantum meruit basis. 4.4 You will pay each invoice submitted by Us within 30 days of the date of the invoice in full and cleared funds and in the currency specified in the Order. Payment will be made to a bank account by Us on the invoice. Time for payment will be of the essence of the Contract. We have the right to reduce the credit period for payment at any time by notifying You of Our decision to do so in writing. 4.5 If We have not received payment in 5 days after the due date: 4.5.1 We may suspend the supply of Products and/or Services in this Contract (and any other contracts that We have with You) until all outstanding invoices are paid; 4.5.2 We may charge You interest at the rate of 6% above the base rate, for the time being, of Barclays Bank plc or 10% per annum, whichever will be the greater, from the due date until the actual date of payment and whether before or after any judgment. 4.6 All amounts stated in the Order are exclusive of VAT. 4.7 If You dispute the validity of any invoice, You will notify Us in writing within 5 days of receipt of such invoice. You must pay the undisputed part of such invoice in accordance with the payment terms set out in clause 4.4. We will work with You to resolve the dispute.
5.1 The Products will, on delivery, be as described in the Order and will comply with any relevant Specification. 5.2 To the extent that the Products are to be developed or manufactured in accordance with Your specific requirements supplied by You to Us, You will indemnify Us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Us in connection with any claim made against Us for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Our use and reliance upon Your requirements or Your contribution to the Specification. This clause 5.2 will survive cancellation or termination of the Contract. 5.3 We reserve the right to amend the Specification if required by any applicable statutory or regulatory requirements.
6. DELIVERY OF PRODUCTS
6.1 We will ensure that delivery of the Products is accompanied by a delivery note which includes all information we deem relevant to such delivery and including any relevant storage instructions. 6.2 Unless agreed otherwise in the Order, We will deliver the Products to the Delivery Location and delivery will be deemed, when the Products have arrived at the Delivery Location. 6.3 Time is not of the essence of any delivery and We will not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or Your failure to provide Us with adequate delivery instructions. 6.5 If You fail to accept delivery of the Products at the Delivery Location, except where such failure or delay is caused by a Force Majeure Event or by Our failure to comply with Our obligations under the Contract, We will be entitled to: 6.5.1 redeliver the Products to the Delivery Location at such reasonable time as We will set; and/or 6.5.2 store the Products until delivery takes place; and 6.5.3 charge You for all related costs and expenses (including insurance) for storage and additional delivery costs and expenses. 6.6 If You fail to accept delivery of the Products within 10 Business Days after We (or Our nominated third party supplier) have notified You that the Products are ready for delivery, We may resell or otherwise dispose of part or all of the Products. If You have paid for the Products in advance, We may deduct our reasonable charges for storage, administration, selling and additional delivery costs and account to You for any excess over the price of the Products or charge You for any shortfall below the price of the Products. 6.7 We may deliver the Products by instalments, which We may invoice separately. Any delay in delivery or defect in an instalment will not entitle You to cancel any other instalment. 6.8 Each Product will be supplied in accordance with the manufacturer’s published specification (if any), unless You and We have agreed any change to that specification. We reserve the right to make changes to the Products where necessary to comply with any legal requirements and which do not materially affect quality or performance. 6.9 Where the Products are or include software, that software will be licensed to You on the terms of the EULA between You and the software developer or licensing body. You acknowledge and agree that We are not able to grant any rights regarding that software. By entering into the Contract, You warrant to Us that You will observe and perform all obligations and restrictions imposed upon You by the EULA. You will indemnify Us against all losses, damages, claims and expenses (including reasonable professional fees) incurred directly or indirectly by Us as a result of Your failure to observe or perform the obligations and restrictions contained in the EULA.
7. TITLE AND RISK
7.1 The risk in the Products and/or Deliverables will pass to You on delivery of the Products and/or any part of them. 7.2 Title to the Products and/or Deliverables will not pass to You until We receive payment in full (in cash or cleared funds) for the Products and/or Deliverables and of any other monies owed to Us by You at that time. 7.3 Until title has passed to You, You will: 7.3.1 hold the Products and/or Deliverables on a fiduciary basis as Our bailee; 7.3.2 take all reasonable steps to store the Products and/or Deliverables safely and in such a way that they can be identified as Our property should We, at any time, wish to exercise Our right to recover the Products and/or Deliverables; 7.3.3 maintain the Products and/or Deliverables in good and saleable condition, and keep them insured against all risks for their full price on Our behalf from the date of delivery; 7.3.4 notify Us immediately if You become subject to any of the events listed in clause 15.3.2; and 7.3.5 give Us such information relating to the Products and/or Deliverables as We may require from time to time.
7.4 If You fail to comply with Your obligations in clause 7.3 or if You become subject to an event described in clause 15.3.2 then We may at Our absolute discretion recover the Products and/or Deliverables from You and You grant Us full licence to enter Your premises or any premises where the Products and/or Deliverables are located in order to recover them.
8.1 We will provide the Services to You in accordance with the Order (and if applicable, the Specification) in all material respects. 8.2 We will use all reasonable endeavours to meet any performance dates for the Services specified in the Order (and if applicable, the Specification) but time will not be of the essence in relation to such dates 8.3 We will have the right to make any changes to the Services (where we have notified You of them beforehand) which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services.
9.1 We warrant that, on delivery, the Products and/or Deliverables will conform in all material respects with their description (and any applicable Specification). 9.2 You acknowledge that, unless We have specified to the contrary in the Order, We are acting only as a reseller. 9.3 We will use our reasonable endeavours to transfer to You the benefit of any warranty granted by the manufacturer. 9.4. In order to make a valid claim regarding a Product or Deliverable that fails to comply with the warranty in clause 9.1: 9.4.1 You must give Us notice in writing within 3 Business Days of discovery that some or all of the Products and/or Deliverables do not comply with the warranty set out in clause 9.1; 9.4.2 We must be given a reasonable opportunity to examine any alleged defect; and 9.4.3 at Our request, You must return such Products and/or Deliverables to Us. 9.4 We will have no liability if: 9.5.1 You make any further use of such Products and/or Deliverables after giving Us notice in accordance with clause 9.4.1; 9.5.2 the defect arises due to actions of any nature taken by You or Your employees, agents or subcontractors or any failure to follow instructions given by Us or the manufacturer in relation to the Products and/or Deliverables; 9.5.3 You alter or repair such Products and/or Deliverables without Our prior written consent; or 9.5.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions. 9.6 We warrant to You that the Services will be provided using reasonable care and skill. 9.7 In order to make a valid claim regarding Services that fail to comply with the warranty in clause 9.6: 9.7. You must give Us notice in writing within 3 Business Days of discovery that some or all of the Services do not comply with the warranty set out in clause 9.6; and 9.7.2 You must give Us a reasonable opportunity to investigate the matters giving rise to the claim. 9.8 If we accept your claim for breach of clause 9.1 and/or 9.6 as valid, Our obligations will be limited to: 9.8.1 (at our choice) repairing or replacing the defective Products and/or Deliverables or refunding the price of the defective Products or that part of the price that relates to the Deliverables; and 9.8.2 (at our choice) carrying out the Services in the correct manner or refunding the price of those defective Services.
9.9 Except as provided in this clause 9, We will have no liability to You in respect of the Products’ and/or Deliverables’ failure to comply with the warranty set out in clause 9.1 or the Services, failure to comply with 9.5. 9.10 All other warranties that are implied by statute, regulation or by custom and practice are excluded from the Contract. 9.11 The terms of this clause will apply to any repaired or replacement Products and/or Deliverables and any Services which have been carried out again under clause 9.8.2.
10.1 You will indemnify Us against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Your use of the Products and/or the Services. 10.2 Either We or Our suppliers or licensors will defend You against any claim that any Intellectual Property Rights forming part of the Products and/or Services infringes any valid third party Intellectual Property Rights, and will indemnify You for any amounts awarded against You in judgment or settlement of such claims, provided that: 10.2.1 We are given prompt notice of any such claim; 10.2.2 You provide reasonable co-operation to Us and/or Our suppliers or licensors (as the case may be) in the defence and settlement of such claim, at Our expense; and 10.2.3 We or Our suppliers or licensors are given sole authority to defend or settle the claim. 10.3 In the defence or settlement of the claim, We or Our suppliers or licensors may obtain for You the right to continue using the relevant Products and/or Services, replace or modify the Products and/or Services so that it or they become non-infringing or, if such remedies are not reasonably available, terminate the Contract without liability to You. 10.4 We will have no liability if the alleged infringement is based on: 10.4.1 modification of such Products and/or Services by anyone other than Us; 10.4.2 Your use of the Products and/or Services in any manner other than as specified by Us or Our suppliers or licensors; or 10.4.3 Your use of such Products and/or Services after notice of the alleged or actual infringement from Us or any appropriate authority. 10.5 You will indemnify Us against claims by any third party that data and information provided by You in relation to the Products or Services provided by Us infringe the Intellectual Property Rights of any third party. You are solely responsible for excluding any infringing material.
11. LIABILITY AND INSURANCE
11.1 This clause 11 (and any amendments to it in the Order) sets out Our entire financial liability (including any liability for the acts or omissions of Our employees, agents and sub-contractors) to You. 11.2 Except as expressly and specifically provided in the Order: 11.2.1 We will have no responsibility for results obtained from Your use of the Products and/or Services; and 11.2.2 all warranties, conditions and other terms implied by statute or common law are (so far as is allowed by law) excluded from the Contract. 11.3 Nothing in this Contract excludes liability for: 11.3.1 death or personal injury caused by Our negligence; 11.3.2 fraud or fraudulent misrepresentation; or 11.3.3 any other liability that cannot be excluded as a matter of law. 11.4 We have no liability whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise arising under or in connection with the Contract for any: 11.4.1 loss of profit; 11.4.2 loss of goodwill;
11.4.3 loss of business; 11.4.4 loss of business opportunity; 11.4.5 loss of anticipated saving; 11.4.6 loss or corruption of data or information; or 11.4.7 special, indirect or consequential damages. 11.5 Subject to clauses 11.3 and 11.4 Our total aggregate liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract will be limited for each claim or series of connected claims to the amount covered by whichever of the professional indemnity insurance or public liability insurance We hold, which is relevant to such claim at the time of that claim, 11.6 During the term of the Contract, We will maintain in force, with a reputable insurance company: 11.6.1 professional indemnity insurance in an amount not less than £1,000,000; and 11.6.2 public and product liability insurance in an amount not less than £2,000,000.
12.1 Each party undertakes to the other that, except as provided by Clause 12.2 or as authorised in writing by the other party, it will at all times during the continuance of the Agreement and after its termination:
12.1.1 keep confidential all Confidential Information;
12.1.2 not disclose any Confidential Information to any other party;
12.1.3 not use any Confidential Information for any purpose other than as contemplated by these Terms and Conditions;
12.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
12.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 12.
12.2 Subject to Clause 12.3, either party may disclose any Confidential Information to:
12.2.1 any of its sub-contractors, substitutes or suppliers;
12.2.2 any governmental or other authority or regulatory body; or
12.2.3 any of their employees or officers or those of any party described in sub-Clauses 12.2.1 and 12.2.2.
12.3 Disclosure under Clause 12.2 may be made only to the extent that is necessary for the purposes contemplated by these Terms and Conditions, or as required by law. In each case the disclosing party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 12.2.2 or is an authorised employee or officer of such a body, the disclosing party must obtain and submit to the other a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
12.4 Either party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of the disclosing party.
12.5 When using or disclosing Confidential Information under Clause 12.4, the disclosing party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
12.6 The provisions of this Clause 12 will continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
13. DATA PROTECTION
The Parties undertake to comply with the provisions of the Data Protection Act 1998 and the General Data Protection Regulations EU (2016/679) and any related legislation in so far as
the same relates to the provisions and obligations of these Terms and Conditions.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 All Intellectual Property Rights in or arising out of or in connection with the Products will be owned by Us or Our licensors. Where the Products are software (or include software) Your access to that software is subject at all times to the terms of the relevant EULA. Any Intellectual Property Rights in developments to the Products will vest automatically in Us or in Our licensors. 14.2 All Intellectual Property Rights in or arising out of or in connection with the Deliverables will be owned by Us. You are granted a temporary, non-transferrable, royalty-free licence to use the Intellectual Property Rights contained in the Deliverables for the purpose for which they are provided to You. This licence will immediately cease when the Contract cancels or expires. Any Intellectual Property Rights in developments to the Deliverables will vest automatically in Us. 15. TERM AND TERMINATION 15.1 The Contract will commence on the Effective Date and unless cancelled under clause 15.2 or terminated in accordance with clause 15.3, will continue for its Term. 15.2 Subject to clause 15.3, after the Effective Date You cannot cancel a Contract unless We consent to such cancellation in writing and a condition of such consent will be that You indemnify and reimburse Us for all losses (including lost revenue and profit), costs, fees, expenses incurred as a result of such cancellation. Where an Order is for a bespoke Product, You will be obliged to pay to Us the entire price of the Product.
15.3 Either Party may forthwith terminate the Agreement by giving written notice to the other Party if:
15.2.1 any sum owing to that Party by the other Party under any of the provisions of these Terms and Conditions is not paid within 30 days of the due date for payment;
15.2.2 the other Party commits any other breach of any of the provisions of these Terms and Conditions and, if the breach is capable of remedy, fails to remedy it within 30 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
15.2.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
15.2.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
15.2.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under these Terms and Conditions);
15.2.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party; or
15.2.7 the other Party ceases, or threatens to cease, to carry on business.
15.3 The right to terminate the Agreement given by this Clause 15 will not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
15.4 Any termination of the Agreement (howsoever occasioned) will not affect any accrued rights or liabilities of either Party nor will it affect the coming into force or the continuance in force of any provision in these Terms and Conditions which is expressly or by implication intended to come into or continue in force on or after such termination.
16. EFFECT OF TERMINATION
16.1 In addition to any specific rights set out in the relevant Schedule, on expiry, termination or cancellation of the Contract for any reason: 16.1.1 any outstanding invoices will become immediately payable; 16.1.2 any licences or other permissions granted by (or on behalf of) Us will immediately terminate; 16.1.3 You will return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to Us and which are supplied as part of this Contract; and 16.1.4 We may destroy or otherwise dispose of all and any of the data collected from the supply of the Services and the Products, unless We receive no later than 10 Business Days after the expiry of the Contract a written request for its delivery to You in which case: 18.104.22.168 We will deliver the items to You within 30 days of receipt of the written request, provided that You have paid all fees and charges outstanding at termination, cancellation or expiry; and 22.214.171.124 You will pay all reasonable expenses incurred by Us in returning or disposing of the items. 16.2 The accrued rights of both parties as at expiry, termination or cancellation, or the continuation after expiry, termination or cancellation of any provision expressly stated to survive or implicitly surviving, will not be affected or prejudiced. 17. NON-SOLICITATION OF EMPLOYEES 17.1 Neither party will solicit, entice away or attempt to entice away from the employment of the other, any person employed or engaged by it in the provision or receipt of the Products and/or Services at any time during the Term and for a further period of 12 months after its expiry. 17.2 Both parties agree that the restriction in 17.1 will not apply to staff employed by the other who have responded in good faith to nationally published employment advertisements. 17.3 In the case of a breach of clause 17.1, the breaching party will on demand pay to the claiming party the sum equal to 35% of a year’s basic salary as paid by the claiming party to the relevant employee at the effective date the employee leaves the claiming party. 18. FORCE MAJEURE
18.1 Neither Party to the Agreement will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service licensor failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
18.2 If such circumstances continue for a continuous period of more than three months, either Party may terminate the Agreement by written notice to the other Party. 19. ASSIGNMENT 19.1 You will not without Our prior written consent assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under the Contract. 19.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under the Contract.
20.1 Our obligation to provide our Services under the Contract is contingent upon proper use by You of the Equipment.
20.2 We will be under no obligation to provide our Services under the Contract:
20.2.1 outside the services agreed to be provided in it;
20.2.2 at any location other than the site mentioned in the Order or remotely;
20.2.3 due to operator error, accident, negligence or misuse of the Equipment including operation in a manner contrary to operating instructions of the manufacturer, Us or any third party;
20.2.4 as a result of any use of or malfunction of parts or other supplies which are not covered by the Contract or which were not supplied by Us;
20.2.5 for damage to the Equipment due to liquid spills unless that is specifically covered under the terms of the Contract;
20.2.6 as a result of any modification, repairs or service carried out by persons other than those employed or authorised by Us;
20.2.7 to correct malfunction caused by the Equipment being sited in an unsuitable environment, contrary to the instructions of the manufacturer, Us or any third party;
20.2.8 in connection with any other use not contemplated by the manufacturer or Us;
20.2.9 as a result of any part of the Equipment failing the Portable Appliance Test (PAT) standards as laid down by E.U. Regulations; and
20.2.10 in connection with data corruption including but not limited to a virus, hackers or corrupt coding or as a result of the Equipment being subjected to abnormal physical or electrical stress including but without limitation lightning strike, power surge or power failure.
20.3 In addition, and for the avoidance of doubt, We are not responsible for problems arising out of faulty telephone lines or leased line connections of any nature or as a result of ISP failure and any other services provided by a third party.
20.4 We may in our sole discretion elect to effect repairs and provide support for matters arising outside the Contract at Your request at Our then current time and material rates.
21. ADDITIONAL TERMS
21.1 The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
21.2 Each Party acknowledges that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in these Terms and Conditions, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
21.3 No failure or delay by either Party in exercising any of its rights under the Agreement will be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement will be deemed to be a waiver of any subsequent breach of the same or any other provision.
21.4 A person who is not a Party to the Agreement has no right under the Contracts (Rights of Third Parties)
22.1 All notices under the Contract will be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
22.2 Notices will be deemed to have been duly given:
22.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
22.2.2 when sent, if transmitted by e-mail and a return receipt is generated; or
22.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
22.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices will be addressed to the most recent address, e-mail address or facsimile number notified to the other Party.
23. DISPUTE RESOLUTION
23.1 We will attempt to resolve any dispute with You arising in relation to the Contract through negotiation between respective senior staff who have authority to settle such dispute. If the matter is not resolved through such negotiations, then the procedure set out below will apply. 23.2 If a dispute cannot be resolved in accordance with the procedure in clause 23.1 then the dispute will be referred to an Alternative Dispute Resolution (ADR) procedure recommended by the Centre for Effective Dispute Resolution (CEDR) acceptable to both You and Us before pursuing any other remedies available. If either party fails or refuses to participate in the ADR procedure, or if in any event the dispute is not resolved within 60 days after reference to the ADR procedure, legal proceedings may be instituted in accordance with clause 24. The mediation will be conducted in English in London (unless another language or location is agreed by the parties).
24. GOVERNING LAW AND JURISDICTION
24.1 The Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) will be governed by, and construed in accordance with, the laws of England and Wales.
24.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) will fall within the jurisdiction of the courts of England and Wales.
DEFINITIONS AND INTERPRETATION
Swift, We Us Our Swift Communcations Ltd, a company registered in England &
Wales (Company Number 09950233), Registered Office: 19
Brookside Industrial Estate Sawtry Huntingdon Cambridgeshire
Customer, You, Your the person, firm or company receiving the Products and/or Services
as identified in the Order
Business Day any day other than Saturday or Sunday or a bank or public holiday
Confidential Information technical and commercial know-how, specifications, inventions,
processes, initiatives and software code which is or are of a
confidential nature together with any other confidential
information concerning a party’s business, finances, customers,
products and services and any other information specified by either
party as being confidential in nature
Contract has the meaning given in clause 2.1
Deliverables the deliverables and/or output of the Services as described in the
Delivery Location the place for the delivery of the Products and/or Services referred
to in the Order
Effective Date has the meaning given in clause 2.2
EULA the licence agreement between a software provider (or its
nominated licensing body) regarding that part of the Products
which includes software and which You are required to enter into
prior to using the software
Equipment the equipment identified in the Order and for which we are
providing Products or Services
Force Majeure Event the meaning given in clause 18.1
Terms and Conditions the conditions set out in this document
Intellectual Property Rights patents, rights to inventions, copyright and related rights, trade
marks, trade names, domain names, rights in get-up, rights in
goodwill or to sue for passing off, unfair competition rights, rights
in designs, rights in computer software, database rights, moral
rights, rights in confidential information (including without
limitation know-how and trade secrets) and any other intellectual
property rights, in each case whether registered or unregistered,
and including without limitation 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 our quotation document detailing the Products and/or Services to
be provided to You and including any schedules attached to it.
Privacy and Data Protection
the General Data Protection Regulation 2016/679 (“GDPR”) or any
equivalent provision which may replace the GDPR following the
formal political separation of the United Kingdom of Great Britain
and Northern Ireland from the European Union, the Regulation of
Investigatory Powers Act 2000, the Telecommunications (Lawful
Business Practice) (Interception of Communications) Regulations
2000 (SI 2000/2699), the Electronic Communications Data
Protection Directive (2002/58/EC), the Privacy and Electronic
Communications (EC Directive) Regulations 2003 (SI 2426/2003)
and all applicable laws and regulations which may be in force from
time to time relating to the processing of personal data and privacy,
including where applicable the guidance and codes of practice
issued by the Information Commissioner or any other supervisory
authority, and the equivalent of any of the foregoing in any
Products the products supplied by Us to You as detailed in each Order and, if
applicable, the relevant Schedule or Specification (if any)
Schedule A schedule to these Terms and Conditions
Service the services, including the Deliverables, supplied by Us to You as set
out in each Order and, if applicable, the relevant Schedule or
Specification (if any)
Specification any specification for the Products or Services, including any
relevant plans or document agreed in writing by You and Us
System Your information technology system including hardware, software,
operating systems and interfaces (if any)
Term the term of the Contract as specified in the Order or the relevant
Schedule that relates to that Product or Service
VAT Value Added Tax chargeable under English law for the time being
and any similar additional tax