MASTER SERVICES AGREEMENT FRAMEWORK
This Master Services Agreement Framework is made on
BY AND BETWEEN
(1.) 4SIGHT COMMUNICATIONS LIMITED, a company incorporated and registered in England with company number 08160359, whose correspondence address is 7th Floor, Chancery House, St Nicholas Way, Sutton, Surrey SM1 1JB (and whose registered office is located at 7Th Floor, Chancery House, St Nicholas Way, Sutton, Surrey SM1 1JB) (“4SIGHT“); and
(2.) incorporated and registered in England with company number whose registered offices are located at (the “Client“).
IT IS HEREBY AGREED AS FOLLOWS:
1. Background
This Master Services Agreement Framework (“Framework“) shall govern transactions between 4SIGHT (defined above) and the Client (defined below) in respect of the provision of Goods (defined above) and Services (defined below).
2 Definitions and Construction
2.1 The following words and phrases, where used in this Framework, shall have the following meanings, except where the context clearly requires otherwise:
2.1.1 “4SIGHT Tools and Methodologies” means all methodologies, software, software development tools, testing tools, methods, processes, templates, reports, concepts and techniques and other materials (including any enhancements thereto) owned by or licensed to 4SIGHT and used by 4SIGHT in the supply of Goods and/or provision of Services;
2.1.2 “Charge(s)” means the charge(s) for the Goods and/or Services payable by the Client to 4SIGHT or, where applicable, direct to a Vendor, as set out in, or calculated in accordance with, an applicable Work Order or otherwise advised by 4SIGHT to the Client;
2.1.3 “Client Data” means all data, information, text, drawings or other materials which are embodied in any electronic or tangible medium of the Client to which 4SIGHT has access during the term of the Contract;
2.1.4 “Client Default” shall have the meaning ascribed to it in Clause 5.8;
2.1.5 “Client Equipment” means the hardware, plant, machinery, operating and other systems, software, applications, communications networks and other assets on which 4SIGHT is requested to perform the Services and/or install the Goods;
2.1.6 “Commencement Date” shall have the meaning ascribed to it in Clause 3.5;
2.1.7 “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Goods and/or Services (together, its “Representatives“) to the other Party and that Party’s Representatives in connection with the Contract, which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure;
2.1.8 “Contract” means the contract agreed between 4SIGHT and the Client for the supply of Goods and/or Services in accordance with this Framework and an applicable Work Order and any other documents incorporated by explicit reference in this Framework and/or such Work Order;
2.1.9“Data Protection Legislation” means (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
2.1.10 “Deliverable(s)” means the Goods and/or the output of the Services including, where applicable, the installation and testing of the Goods;
2.1.11 “Delivery Location” shall have the meaning ascribed to it in Clause 7.1;
2.1.12″Due Date” shall have the meaning ascribed to it in Clause 10.6;
2.1.13 “Goods” means the goods (or any part of them) to be supplied to the Client by, on behalf of or through 4SIGHT, as agreed in the applicable Work Order including, but not limited to, hardware, devices, components and software;
2.1.14 “Goods Specification” means any specification for the Goods, including any relevant plans or drawings, as agreed in an applicable Work Order;
2.1.15 “Intellectual Property Rights” means any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, Know-How and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions;
2.1.16 “Know-How” means all the ideas, designs, documents, diagrams, information, devices, technical and scientific data, secret and other processes and methods used in connection with a Party’s business, as well as, all available information regarding marketing and promotion of the goods and services of a Party, as well as, all and any modifications or improvements to any of them which do not constitute entirely new goods or services;
2.1.17 “Network Services” means the provision of a voice telecommunications service via a telephone number as further described in Schedule 2 and the provision of which is subject to the terms and conditions set out in Schedule 2;
2.1.18 “Parties” means 4SIGHT and the Client collectively and “Party” shall mean any one of them, as determined by the context;
2.1.19 “Service Level(s)” means the service level(s) agreed in a Work Order in accordance with which 4SIGHT and/or, where applicable, the relevant Vendor shall provide the Services;
2.1.20 “Services” means the services to be provided to the Client by, on behalf of or through 4SIGHT, as agreed in the applicable Work Order, including, but not limited to the installation, support and maintenance of Goods, connectivity, Network Services and network access and professional services;
2.1.21 “Services Specification” means the description or specification for the Services, including, where applicable, the scope, timetable and milestones of the Services together with any Deliverables, as agreed in the applicable Work Order;
2.1.22 “Third Party Materials” shall have the meaning ascribed to it in Clause 9.3;
2.1.23 “Vendor” means a third party supplier of Goods or Services to the Client, through 4SIGHT;
2.1.24 “Virus” means, without limitation, any malicious code, trojans, worms and viruses, lock, authorisation key or similar device that impairs or could impair the operation of the Goods and or the Services; and
2.1.25 “Work Order” shall have the meaning ascribed to it in Clause 3. 2.
2.2 In this Framework, the following rules apply:
2.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
2.2.2 a 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;
2.2.3 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;
2.2.4 a reference to “writing” or “written” includes emails only in connection with general correspondence (and where 4SIGHT is the recipient, emails should be sent to info@4sightcomms.com); and
2.2.5 words of a technical nature used in a Contract will (unless inconsistent with the context) be construed in accordance with general trade use in the IT/telecommunications industry in the United Kingdom.
3.Basis of Contract
3.1 This Framework shall operate as a master services framework arrangement which specifies the provisions governing the supply of Goods and/or the provision of Services to the Client and under which Work Orders (defined below) are executed.
3.2 A “Work Order” is an order for Goods and/or Services under this Framework which shall form part of the Contract, as agreed between the Parties by way of any, or a combination, of the following:
3.2.1 a written agreement signed by an authorised representative of both Parties in the form of and including the information contained in the Work Order, or some similar written document; and/or
3.2.2 an exchange of emails evidencing an intention to enter into a Contract under this Framework only when confirmed by 4SIGHT in writing (including by email); and/or
3.2.3 a purchase or requisition order sent by the Client to 4SIGHT, whether by email or otherwise, the content of which is agreed to by 4SIGHT.
copies of which shall be attached to this Framework as an addendum.
3.3 Work Orders shall be deemed to incorporate by reference all terms and conditions of this Framework and in the event of a conflict between the Framework and the Work Order, the relevant terms of the Framework shall take precedence.
3.4 Work Orders may be added, removed or revised from time to time by mutual agreement between the Parties confirmed by both Parties in writing and in accordance with this Framework. In particular, the Parties may agree to amend a Work Order in the event that the detailed Goods Specification and/or Services Specification is settled after the Commencement Date.
3.5 The Work Order shall only be deemed to be agreed
if a written document, such document is signed by an authorised representative of each Party
at which point and on which date the Contract shall come into existence (such date or, if explicitly referred to in an applicable Work Order, such other date so referenced shall be referred to as the “Commencement Date“).
3.6 Each Work Order duly executed as envisaged in this Clause 3, shall become a separate Contract between the Parties upon the terms of this Framework.
3.7 The Contract constitutes the entire agreement between the Parties in relation to the subject matter of the Work Order.
3.8 This Framework applies to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which may be implied by trade, custom, practice and/or course of dealing.
3.9 This Framework applies to the provision of Network Services and forms part of the Contract in addition to the terms and conditions contained in Schedule 2 and in the event of a conflict between the Framework and Schedule 2, the relevant terms of Schedule 2 shall take precedence.
3.10 The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of 4SIGHT or any applicable Vendor which is not set out in the Contract.
3.11 Any samples, drawings, descriptive matter or advertising issued by or on behalf of 4SIGHT or, where applicable, a Vendor, and any descriptions of the Goods or illustrations or descriptions of the Services contained in 4SIGHT’s or any applicable Vendor’s, catalogues, brochures, website or other documentation or publication are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. Unless otherwise agreed by the Parties, they shall not form part of the Contract or have any contractual force.
3.12 Unless explicitly stated by 4SIGHT, any quotation given by 4SIGHT shall not constitute an offer, and is only valid for the period stated on the quotation or otherwise as communicated by 4SIGHT to Client from time to time.
3.13 All of this Framework shall apply to the supply of both Goods and Services except where application to one or the other is specified.
4. Provision of Services
4.1 4SIGHT shall:
4.1.1 where, 4SIGHT provides the Services, provide such Services with such skill and care as is generally acceptable within the telecommunications industry and in accordance with any agreed Service Levels; or
4.1.2 otherwise where applicable, use its reasonable endeavours to procure that the applicable Vendor provides the Services with reasonable skill and care and in accordance with the applicable Service Levels.
4.2 4SIGHT shall use all reasonable endeavours to (or procure that the Vendor shall) meet any performance dates for the Services specified in the Work Order, but any such dates shall be estimates only, unless otherwise agreed in writing by the Parties.
4.3 4SIGHT shall have the right to make such y changes to the Services as are necessary to comply with any applicable Vendor’s instructions, any applicable statutory, regulatory or safety or technical/operational requirement , provided that such changes do not materially affect the nature or quality of the Services, and that 4SIGHT notifies the Client in writing prior to such changes taking effect.
4.4. With respect to any Services which include support and maintenance services, unless otherwise agreed in writing by 4SIGHT, such Services do not include services relating to or required as a result of any of the following, and 4SIGHTshall be entitled to make additional charges for any such services as required from time to time:
4.4.1 the Client’s installation of any new hardware or software onto the Client Equipment not supplied or approved by 4SIGHT;
4.4.2 the Client’s own maintenance, repair, substitution or replacement of any Client Equipment;
4.4.3 support in respect of any third party hardware or software application connected to the Client Equipment that is not supplied or approved by 4SIGHT;
4.4.4 the addition of any third party hardware or software to the Client Equipment without 4SIGHT’s agreement in writing;
4.4.5 failure of the Client to maintain the necessary environmental conditions for the operation of Client Equipment;
4.4.6 failure of the Client to comply with 4SIGHT’s reasonable prior written recommendations relating to the use of the Client Equipment; or
4.4.7 any support or maintenance undertaken to the Client Equipment by persons not authorised or approved by 4SIGHT.
4.5 Testing and acceptance criteria and procedure shall be agreed in writing by the Parties in the applicable Work Order as part of the Services Specification.
5. Client obligations
5.1 The Client shall ensure that appropriate environmental conditions are maintained for the Goods and/or Deliverables and shall ensure that such Goods and/or Deliverables are housed operated in a proper manner in accordance with 4SIGHT’s and/or the applicable manufacturer’s instructions.
5.2 Where appropriate, the Client shall nominate an authorised representative to be available to liaise with, and respond to queries from, 4SIGHT in respect of the provision of Services and the supply of Goods (for example, in respect of the provision of Services, as to the resolution of conflicting priorities between two or more items of support or maintenance).
5.3 The Client shall ensure that the Goods and/or Deliverables (or any part thereof) are not:
5.3.1 modified without 4SIGHT’s prior written approval (which shall not be unreasonably withheld or delayed);
5.3.2 subjected to excessive physical and/or electrical stress, accident, neglect, misuse or other damage;
5.3.3 used in conjunction with any software, magnetic-media, accessory or consumable which does not meet with 4SIGHT or the relevant Vendor’s specifications, or which are defective; or
5.3.4 attached to any object, repaired or reinstalled without 4SIGHT’s prior written approval, (which shall not be unreasonably withheld or delayed).
5.4 In the event that the Goods and/or Deliverables are subjected to any of the acts set out in Clause 5. 3, 4SIGHT reserves the right to charge for any remedial action required on a time and materials basis, in accordance with 4SIGHT’s then current rates from time to time in force.
5.5 The Client shall:
5.5.1 co-operate with 4SIGHT in its performance of the Services and provide any assistance or information as may reasonably be required by 4SIGHT to facilitate the performance of the Services;
5.5.2 as soon as is practicable, report to 4SIGHT in writing any faults in the Goods and/or Deliverables; and
5.5.3 carry out a back-up operation in accordance with 4SIGHT’s, and/or any applicable Vendor’s, recommendation and keep full back-up copies of all of its data;
5.5.4 maintain adequate and up-to-date anti-Virus software on the Client Equipment at all times;
5.5.5 ensure that the terms of the Work Order and, where applicable, the Goods Specification and Services Specification are complete and accurate;
5.5.6 provide 4SIGHT, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by 4SIGHT in order to provide the Services and take reasonable care to ensure the safety of 4SIGHT personnel and/or representatives while they are accessing the Client’s premises, office accommodation and other facilities;
5.5.7 prepare the Client’s premises and the Client Equipment for the supply of the Services and/or installation and/or use or the Goods in accordance with 4SIGHT’s reasonable prior written requests;
5.5.8 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are scheduled to begin;
5.5.9 at its own expense, execute all documents and do all acts and things reasonably required by 4SIGHT to give effect to the terms of the Contract and shall provide access to all information and documentation which is within its possession which is reasonably required by 4SIGHT to enable it to fulfil its obligations hereunder; and
5.5.10 provide to 4SIGHT in a timely manner all data, information and documentation reasonably required by 4SIGHT (as well as answers to queries and decisions, reasonably requested by 4SIGHT) to enable 4SIGHT to perform its obligations under the Contract and will ensure that such data, information and documentation is complete and accurate.
5.6 The Client shall operate the Goods and/or Deliverables in accordance with 4SIGHT’s or, as appropriate, the applicable Vendor’s instructions and/or best practice guidance provided to the Client by 4SIGHT or such Vendor from time to time.
5.7 The Client shall ensure that all personnel assigned by it to provide assistance to 4SIGHT in its performance of its obligations under this Framework shall have the requisite skill, qualifications and experience to perform the tasks assigned to them.
5.8 If 4SIGHT’s performance of any of its obligations in respect of the Services and/or Goods is prevented or delayed by any act or omission by the Client or failure or delay by the Client to perform any relevant obligation (“Client Default“):
5.8.1 4SIGHT shall have the right, without limiting its other rights or remedies, to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays 4SIGHT’s performance of any of its obligations under a Contract;
5.8.2 4SIGHT shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Client’s failure or delay to perform any of its obligations as set out in this Clause 5.8; and
5.8.3 the Client shall reimburse 4SIGHT on written demand for any costs or losses sustained or incurred by 4SIGHT arising directly or indirectly from a Client Default.
6. Goods and Vendor warranties
6.1. The Goods shall be of a satisfactory quality and as described in the Goods Specification.
6.2 4SIGHT reserves the right to amend the Goods Specification or otherwise make changes to the Goods if required by the applicable Vendor or any applicable statutory, regulatory or safety requirements, and 4SIGHT shall notify the Client in writing as soon as is reasonably practicable in any such event.
6.3 Goods manufactured or developed by a Vendor are provided by 4SIGHT on the basis of such Vendor’s own terms and conditions, including such Vendor’s warranty terms and, where applicable, software licence terms and conditions and the Client hereby accepts and agrees to the same.
6.4 In respect of Goods manufactured by Vendors, 4SIGHT shall use its reasonable endeavours to procure that the Client receives the benefit of any applicable warranty provided by such Vendor.
6.5 Subject to any applicable Service Levels, 4SIGHT shall have no liability to the Client for the Goods’ failure to comply with any Vendor’s warranty, but shall provide any information reasonably required by the Client in order to assist the Client to make a claim direct to such Vendor and hereby undertakes to provide such assistance as is reasonably requested by the Client in relation to any such claim.
6.6 Where the Client receives the benefit of a Vendor’s warranty in respect of Goods, and a defect arises, the Client should be aware that such warranty may be limited or invalidated in the following circumstances:
6.6.1 the defect arises because the Client failed to follow the Vendor’s or, where applicable, 4SIGHT’s, oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or, if there are none, good trade practice;
6.6.2 the Client alters or repairs the Goods without the written consent of 4SIGHT and/or, where applicable, the relevant Vendor;
6.6.3 the defect arises as a result of fair wear-and-tear, wilful damage, negligence, or abnormal working conditions; and
6.6.4 the Goods differ from their description and/or any applicable Goods as a result of changes made to ensure that such Goods comply with applicable statutory or regulatory standards.
6.7 This Framework shall apply to any repaired or replacement Goods supplied by 4SIGHT in the event of a claim against a Vendor.
7. Delivery of the Goods
7.1 Subject to Clause 7. 6, 4SIGHT shall deliver the Goods to the location agreed in the Work Order or such other location as the Parties may agree in writing (the “Delivery Location“) at any time after 4SIGHT notifies the Client that the Goods are ready or around such time and date as is stated in the Work Order.
7.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
7.3 Any dates quoted for delivery of the Goods are approximate only. 4SIGHT shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, Client Default or the Client’s failure to provide 4SIGHT with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.4 If 4SIGHT fails to deliver the Goods paid for by the Client, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
7.5 4SIGHT may deliver the Goods by instalments, which shall be invoiced and paid for separately, subject to the prior written agreement of the Client (which shall not be unreasonably withheld or delayed). Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.
7.6 In order to assist 4SIGHT in meeting any applicable Service Levels, and subject to Clause 8, 4SIGHT may request the Client’s permission to store at the Client’s premises certain goods, spare parts, accessories, consumables, tools, wiring, devices or other equipment or items to be used by 4SIGHT in its provision of the Services and the Client hereby agrees to hold the same on a fiduciary basis as 4SIGHT’s bailee. Whilst such items are on the Client’s premises but are not yet earmarked for installation, the title in such items shall remain with 4SIGHT until such time as such items are transferred to the Client or installed at the Client’s premises as Goods and/or Deliverables.
7.7 Subject to Clause 8, 4SIGHT may loan or procure the loan of equipment, systems or materials for trial and/or testing purposes or where required as a short term Services-solution or ‘workaround’ (for example, in respect of maintenance Services). In such circumstances, the Parties do not intend that title in such items shall pass to the Client and the Client hereby agrees to hold the same on a fiduciary basis as 4SIGHT’s bailee.
8. Title and risk in the Goods
8.1 The risk in the Goods shall pass to the Client on completion of delivery.
8.2 Title to the Goods shall not pass to the Client until 4SIGHT has received payment in full (in cash or cleared funds) for the Goods and any other goods that 4SIGHT has supplied to the Client in respect of which payment has become due.
8.3 Until title to the Goods has passed to the Client, the Client shall:
8.3.1 hold the Goods on a fiduciary basis as 4SIGHT’s bailee;
8.3.2 where practicable, store the Goods separately from all other goods held by the Client so that they remain readily identifiable as 4SIGHT’s property;
8.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on 4SIGHT’s behalf from the date of delivery;
8.3.5 notify 4SIGHT immediately if it becomes subject to any of the events listed in Clause 1.2; and
8.3.6 give 4SIGHT such information relating to the whereabouts and status of the Goods as 4SIGHT may reasonably require from time to time,
but the Client may use the Goods in the ordinary course of its business.
8.4 If, before title to the Goods passes to the Client, the Client becomes subject to any of the events listed in Clause 1.2, or 4SIGHT reasonably believes that any such event is about to happen and notifies the Client accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into the Client’s Equipment or another product, and without limiting any other right or remedy 4SIGHT may have, 4SIGHT may at any time require the Client to deliver up the Goods and, if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them.
9. Use of the Client’s Equipment and Third Party Materials
9.1 The Client shall provide 4SIGHT and its authorised representatives with such access, including remote access, to the Client Equipment as may be necessary in order for 4SIGHT to perform the Services.
9.2 The Client grants to 4SIGHT, with effect from the Commencement Date and for the duration of the Services, a non-exclusive royalty-free licence to use, operate, copy and modify materials owned or licenced by the Client solely for the purpose of fulfilling 4SIGHT’s obligations under the Contract.
9.3 The Client shall obtain all necessary consents of third parties to the use by 4SIGHTo f any third party software, hardware, know how, equipment, documentation, products and other materials including any applicable element of the Client Equipment (“Third Party Materials”) which the Client is permitted to use and is required by 4SIGHT in order for it to provide the Services.
9.4 Where required for 4SIGHT to perform the Services, the Client shall maintain in force all current software maintenance agreements with the third parties supporting the Client Equipment and, where applicable, Third Party Materials, to ensure adequate assistance from such third parties.
10. Charges and Payment
10.1 In consideration for the supply of Goods and/or provision of Services by or on behalf of 4SIGHT, the Client agrees to pay the applicable Charges.
10.2 Unless otherwise stated, the Charges for Goods are exclusive of all costs and charges of packaging, insurance and transport of the Goods, which shall be paid by the Client when the Client pays for the Goods.
10.3 In respect of Goods and/or Services, 4SIGHT may:
10.3.1 invoice the Client, as stated in the Work Order or as otherwise agreed in writing, before, upon or at any time after completion of delivery of the Goods and/or provision of the Services; or
10.3.2 where 4SIGHT is required to make an advance purchase of Goods or, where applicable, procure resources, components or other materials necessary for the provision of the Services, requiring capital expenditure on the part of 4SIGHT, 4SIGHT reserves the right to invoice the Client for the full amount of the Charges or require a deposit against the applicable Charges, and insist on receiving payment in cash or cleared funds, in advance of incurring any such expenditure.
10.4 The Client shall pay each invoice submitted by 4SIGHT:
10.4.1 within thirty (30) days of the date of the invoice; and
10.4.2 in full and in cleared funds to a bank account nominated in writing by 4SIGHT.
10.5 All amounts payable by the Client 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 4SIGHT to the Client, the Client shall, on receipt of a valid VAT invoice from 4SIGHT, pay to 4SIGHT such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the or Goods or provision of the Services.
10.6 Without limiting any other right or remedy of 4SIGHT, if the Client fails to make any payment due to 4SIGHT under the Contract by the due date for payment (“Due Date“), 4SIGHT shall have the right to charge interest on the overdue amount at the rate of four per-cent (4%) per annum above the then current Bank of England’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
10.7 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against 4SIGHT in order to justify withholding payment of any such amount in whole or in part. 4SIGHT may, without limiting its other rights or remedies, set-off any amount owing to it by the Client against any amount payable by 4SIGHT to the Client.
11. Warranties
11.1 The Client warrants that:
11.1.1 it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of the Client;
11.1.2 it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to 4SIGHT, any materials reasonably necessary for the fulfilment of all its obligations under the Contract, including any third-party licences and consents in respect of the Client Equipment and any Third Party Materials;
11.1.3 it will comply with and use the Services in accordance with the terms of the Contract and all applicable laws, and shall not do any act that shall infringe the rights of any third part including the publishing or transmission of any materials contrary to relevant laws; and
11.2 4SIGHT’s use in the provision of the Services or otherwise in connection with the Contract of any Third Party Materials licenced to the Client, including any hardware or software supplied by the Client to 4SIGHT for use in the provision of the Services or otherwise in connection with the Contract, shall not cause 4SIGHT to infringe the rights, including any Intellectual Property Rights, of any third party.
11.3 4SIGHT warrants and represents that:
11.3.1 it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of 4SIGHT; and
11.3.2 it owns or has obtained valid licences, consents, permissions and rights to enable 4SIGHT to comply with the Contract and to use any Intellectual Property Rights necessary for the fulfilment of its obligations under the Contract, including for the Client’s use and receipt of the Goods and the Services, and that the use by 4SIGHT of such Intellectual Property Rights will not, to the best of the knowledge and belief of 4SIGHT (without making specific investigation in relation thereto) infringe the rights of any third parties and 4SIGHT shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached.
12. Limitation of Liability
12.1 This Clause 12 sets out the entire financial liability of each Parties to the other (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of:
12.1.1 any breach of the Contract;
12.1.2 any use made by the Client of the Goods and Services; and
12.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
12.2 Except as expressly and specifically provided in this Framework:
12.2.1 the Client assumes sole responsibility for results obtained from the use of the Goods and Services, and for conclusions drawn from such use. 4SIGHT shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to 4SIGHT by the Client in connection with the Goods and/or Services, or any actions taken by 4SIGHT based on such information, instructions or scripts or otherwise at the Client’s direction; and
12.2.2 all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in this Contract excludes or limits the liability of either Party for:
12.3.1 death or personal injury caused by that Party’s negligence;
12.3.2 fraud or fraudulent misrepresentation;
12.3.3 a breach of the Data Protection Legislation; or
12.3.4 any other liability which cannot lawfully be excluded or limited.
12.4 Where applicable, Service Levels state the Client’s full and exclusive right and remedy, and 4SIGHT’s only obligation and liability, in respect of the performance and availability of the Services, or their non-performance or non-availability.
12.5 Subject to Clause 3 and Clause 12.4:
12.5.1 Neither Party shall be liable to the other Party whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or pure economic loss, or for any indirect or consequential loss, costs, damages, charges or expenses however arising; and
12.5.2 Each Party’s ‘s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Charges received for the Goods and/or Services during the twelve (12) months preceding the date on which the claim arose.
13. Confidentiality
13.1 Each Party shall keep the other Party’s Confidential Information confidential and shall not:
13.1.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under the Contract (“Permitted Purpose“); or
13.1.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 13.
13.2 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract.
13.3 The Client acknowledges that 4SIGHT’s Confidential Information includes any designs, plans, software or other materials created by 4SIGHT in connection with the supply of the Goods and/or Services and the Client agrees not to make use of any such material for any purpose other than receipt of the Goods and/or Services from 4SIGHT.
13.4 4SIGHT acknowledges that the Client Data is the Confidential Information of the Client.
13.5 A Party may disclose the other Party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
13.5.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
13.5.2 at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in Clause 13.
13.6 A receiving Party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible.
13.7 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Framework or any Work Order are granted to the receiving Party, or to be implied from this Framework or any such Work Order.
13.8The term “Confidential Information” does not include any information that:
13.8.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this Clause 13);
13.8.2 was available to the receiving Party on a non-confidential basis before disclosure by the disclosing party;
13.8.3 was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party;
13.8.4 was known to the receiving Party before the information was disclosed to it by the disclosing Party;
13.8.5 the Parties agree in writing is not confidential or may be disclosed; or
13.8.6 is developed by or for the receiving Party independently of the information disclosed by the disclosing Party.
13.9 The provisions of this Clause 13 shall continue to apply after termination of the Contract.
14. DATA PROTECTION
14.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 14 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
14.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and 4SIGHT is the data processor (where “Data Controller” and “Data Processor” have the meanings as defined in the Data Protection Legislation). Schedule 1 sets out the scope, nature and purpose of processing by 4SIGHT, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, “Personal Data”) and categories of Data Subject.
14.3 Without prejudice to the generality of clause 14.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to 4SIGHT for the duration and purposes of the Framework.
14.4 Without prejudice to the generality of clause 14.1, 4SIGHT shall, in relation to any Personal Data processed in connection with the performance by 4SIGHT of its obligations under the Framework:
14.4.1 process that Personal Data only on the written instructions of the Client unless 4SIGHT is required by the laws of any member of the European Union or by the laws of the European Union applicable to 4SIGHT to process Personal Data (“Applicable Laws”). Where 4SIGHT is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, 4SIGHT shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit 4SIGHT from so notifying the Client;
14.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
14.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
14.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
14.4.4.1 the Client or 4SIGHT has provided appropriate safeguards in relation to the transfer;
14.4.4.2 the data subject has enforceable rights and effective legal remedies;
14.4.4.3 4SIGHT complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
14.4.4.4 4SIGHT complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
14.4.5 assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
14.4.6 notify the Client without undue delay on becoming aware of a Personal Data breach;
14.4.7 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Framework unless required by Applicable Law to store the Personal Data; and
14.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 14 and allow for audits by the Client or the Client’s designated auditor.
14.5 4SIGHT does not outsource the processing of Personal Data, but in order to provide the Services it has to provide Personal Data to third parties, such as Mitel and localised service partners, to enable them to contact Clients. The Client consents to 4SIGHT appointing certain third parties as third-party processors of Personal Data under the Framework]. 4SIGHT confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 14. As between the Client and 4SIGHT, 4SIGHT shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 14.
14.6 Either Party may, at any time on not less than 30 days’ notice, revise this clause 14 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Framework).
15. Intellectual Property Rights
15.1 Unless agreed expressly in writing in the Contract, neither Party will acquire any ownership interest in or licence of the other’s Intellectual Property Rights by virtue of the Contract and, all Intellectual Property Rights belonging to a Party prior to the date of the Contract will remain vested in that Party.
15.2 In the absence of prior written agreement to the contrary, all Intellectual Property Rights created by 4SIGHT or any employee, agent or sub-contractor of 4SIGHT in the course of performing the Services shall vest in 4SIGHT.
15.3 In the absence of prior written agreement to the contrary, all Intellectual Property Rights in and to the Client Equipment, the Client Data and/or Third Party Materials and any other information, materials or assets supplied or made accessible to 4SIGHT or any applicable Vendor by the Client shall vest in and shall remain vested in the Client or, as applicable, its third party licensors, and 4SIGHT shall only use (and shall uses its reasonable endeavours to procure that the such Vendor only uses) the same in accordance with the terms of this Framework and only for the purposes of supplying Goods and/or providing Services under the Contract.
15.4 The Client shall grant or shall procure the grant of a licence to 4SIGHT and/or, where applicable a Vendor, to utilise the Client Equipment, Client Data and/or any Third Party Materials or such other information, materials or assets to the extent required for the supply of Goods and/or provision of the Services.
15.5 All Intellectual Property Rights in and to the 4SIGHT Tools and Methodologies vest in and shall remain vested in 4SIGHT and where any of such 4SIGHT Tools and Methodologies are required by the Client to make effective use of any of the Goods and/or Services, 4SIGHT shall grant to the Client a non-exclusive licence to use such 4SIGHT Tools and Methodologies for its internal business purposes only.
15.6 Subject to Clause 13 (Confidentiality), 4SIGHT will be free to use its general knowledge, skill and experience and any underlying ideas, concepts, Know How, methodologies and techniques acquired as a result of the Contract or the provision of the Goods and/or Services.
15.7 The Client hereby indemnifies 4SIGHT and its respective officers, directors, staff, successor and assigns against all liabilities, losses, demands, damages, charges, costs, claims, expenses and interest suffered by 4SIGHT arising from, in connection with, or based on allegations that 4SIGHT’s access or use of the Client Data, Client Equipment and/or any Third Party Materials infringes the Intellectual Property Rights of a third party including infringement of rights which arise as a result of work carried out on any Client Data, Client Equipment and/or any Third Party Materials by 4SIGHT or on 4SIGHT’s systems and/or the provision of any information, materials or other assets to 4SIGHT by the Client (an “IPR Claim”). The Client shall pay all costs and damages awarded or agreed to in settlement of an IPR Claim provided that 4SIGHT:
15.7.1 furnishes the Client with prompt written notice of the IPR Claim;
15.7.2 provides the Client with all reasonable assistance in respect of the IPR Claim; and
15.7.3 gives the Client the sole authority to defend or settle the IPR Claim.
16. Termination
16.1 Without limiting its other rights or remedies, each Party may terminate the Contract with immediate effect by giving written notice to the other Party if:
16.1.1 the other Party commits a material breach of its obligations under such Contract and, either such breach is irremediable or, if such breach is remediable, the other Party fails to remedy that breach within thirty (30) days after receipt of notice in writing of the breach; or
16.1.2 the other Party becomes insolvent, is unable to pay its debts or being capable of being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or an order is made or a resolution passed for the liquidation, administration, winding-up or dissolution of the other Party (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer is appointed over all or any substantial part of the assets of the other Party or the other Party enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction or the other Party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business.
16.2 Without limiting its other rights or remedies, 4SIGHT may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract within 30 days of the Due Date for payment.
16.3 Without limiting its other rights or remedies, 4SIGHT may terminate the Contract with immediate effect by giving written notice to the Client in the circumstances described in Clause 20. 3.3.
16.4 Without limiting its other rights or remedies, 4SIGHT shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Client and 4SIGHT if:
16.4.1 the Client fails to pay any amount due under the Contract on the Due Date for payment; or
16.4.2 the Client becomes subject to any of the events listed in Clause 1.2, or 4SIGHT has reasonable cause to believe that the Client is about to become subject to any of them.
16.5 Without limiting their other rights or remedies, either Party shall be entitled to terminate the Contract by prior notice in writing to the other of not less than 60 days in the event that the other Party is in breach of the Bribery Act 2010, the Modern Slavery Act 2015 or the Data Protection Legislation.
17. Consequences of Termination
17.1 On termination of the Contract for any reason:
17.1.1 the Client shall immediately pay to 4SIGHT all of 4SIGHT’s outstanding unpaid invoices and interest and, in respect of Services and/or Goods supplied but for which no invoice has yet been submitted, 4SIGHT shall submit an invoice, which shall be payable by the Client immediately on receipt;
17.1.2 the Client shall at the Client’s sole discretion, either pay for in full or return all Deliverables which have not been fully paid for. If the Client fails to return or pay for such Deliverables, then 4SIGHT may enter the Client’s premises and take possession of them. Until such Deliverables have been returned or paid for, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
17.1.3 the 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;
17.2 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
18. Dispute Resolution
18.1 If a dispute arises under a Contract (“Dispute“), including any Dispute arising out of any amount due to a Party hereto, then before bringing any suit, action or proceeding in connection with such Dispute, a Party must first give written notice of the Dispute to the other Party describing the Dispute and requesting that it is resolved under this dispute resolution process (“Dispute Notice“).
18.2 If the Parties are unable to resolve the Dispute within thirty (30) days of delivery of the Dispute Notice, then each Party will promptly (but no later than five (5) business days thereafter):
18.2.1 appoint a designated representative who has sufficient authority to settle the Dispute and who is at a higher management level than the person with direct responsibility for the administration of the Contract (“Designated Representative“); and
18.2.2 notify the other Party in writing of the name and contact information of such Designated Representative.
18.3 The Designated Representatives will then meet as often as they deem necessary in their reasonable judgment to discuss the Dispute and negotiate in good faith to resolve the Dispute. The Designated Representatives will mutually determine the format for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one Party to the other Party will be honoured.
18.4 If the Parties are unable to resolve the Dispute within thirty (30) days after the appointment of both Designated Representatives, then either Party may proceed with any other available remedy.
18.5 Notwithstanding the foregoing, either Party may seek interim or other equitable relief necessary (including an injunction) to prevent irreparable harm.
19. Assignment and subcontracting
19.1 Neither Party shall , without the other Party’s prior written consent (such consent not to be unreasonably withheld or delayed), assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract.
20. General
20.1 Non-solicitation: The Parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of six (6) months from the end of, the term of the Contract, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any person who has been engaged in the provision of the Services provided under the Contract or involved in the receipt of such Services at any time during the term of the Contract.
20.2 Entire Agreement: This Framework supersede all prior agreements, arrangements and undertakings between the Parties and constitute the entire agreement between the Parties relating to the subject matter of the Contract. The Parties confirm that they have not entered into the Contract on the basis of any representation that is not expressly incorporated into the Contract. Notwithstanding the foregoing, the obligations of the Parties under any pre-existing non-disclosure agreement shall remain in full force and effect insofar as there is no conflict between the same.
20.3 Force Majeure:
20.3.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of 4SIGHT including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of 4SIGHT 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 4SIGHT’s or subcontractors.
20.3.2 4SIGHT shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
20.3.3 If the Force Majeure Event prevents 4SIGHT from providing any of the Services and/or Goods for more than six (6) weeks, 4SIGHT shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
20.4 Notices:
20.4.1 Any 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.
20.4.2 Any 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 9.00am 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.
20.4.3 This Clause 4 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this Clause 20.4, “writing” shall not include emails and notice given under this Contract shall not be validly served if sent by email.
20.5 Waiver and cumulative remedies:
20.5.1 A 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.
20.5.2 Subject to the specific limitations agreed in the Contract, no remedy conferred by any provision of the Contract is intended to be exclusive of any other remedy except as expressly provided for in the Contract and each and every remedy shall be cumulative and shall be in addition to every other remedy given under the Contract or existing at law or in equity by statute or otherwise.
20.6 Severability:
20.6.1 If a court or any other competent authority finds that any provision (or part of any provision) of this Framework, or any Contract, 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 Framework, or, as the case may be, the Contract, shall not be affected.
20.6.2 If any invalid, unenforceable or illegal provision of this Framework, or any 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.
20.7 No partnership: Nothing in this Framework, or any 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.
20.8 Third parties: A person who is not a Party to this Framework, or any Contract, shall not have any rights under or in connection with it. Subject as specifically set out in this Framework, a person who is not a Party to this Framework, or any Contract, shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Framework, or any Contract, but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
20.9 Variation: Except as set out in this Framework, or any Contract or as required by any applicable legislation or regulation, any variation, including the introduction of any additional terms and conditions, to this Framework, or any Contract, shall only be binding when agreed in writing and signed by representative of each of the Parties.
21. Governing Law and Jurisdiction:
This Framework and any Contract entered into hereunder, 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.
THIS FRAMEWORK has been entered into by or on behalf of the parties on the date at the beginning of this Framework.
SCHEDULE 1
PROCESSING, PERSONAL DATA AND DATA SUBJECTS
- Processing by 4SIGHT, which is an electronic communications service provider of telecommunications network services and products, and which manages personal and traffic data related to its Clients’ use of its communications network (enterprise only), and other customer information relating, but not limited to, customer care, customer management and customer insight and analysis.
1.1 Scope: 4SIGHT will only process Personal Data for the purposes of providing the Services.
1.2 Nature: 4SIGHT will only process Personal Data for the purposes of providing the Services.
1.3 Purpose of processing: the Personal Data shall only be collected for specified, explicit, and legitimate purposes, namely the provision of the Services (the Purpose). The Personal Data shall not subsequently be processed in a manner that is incompatible with the Purpose. Only the Personal Data that are relevant and necessary to achieve the Purpose shall be collected. The Purpose shall be respected throughout the process of design/implementation of the processing.
1.4 Duration of the processing: only for as long as the Framework (or any other Contract) subsists and for not longer than 1 year thereafter, although 4SIGHT may from time to time contact business contacts by e-mail or phone to determine whether there is a need within their business for its services. Data subjects can opt-out by contacting 4SIGHT by e-mail or post.
- Types of personal data: names, work addresses, telephone/mobile numbers and work email addresses.
- Categories of data subject: employees, agents or sub-contractors of Clients
SCHEDULE 2
NETWORK SERVICES TERMS & CONDITIONS
- Definitions
Capitalised terms used in these terms and conditions which are not defined below shall have the meaning assigned to them in the Framework:
“Anniversary Date” means any anniversary of the Commencement Date;
“Carrier” means the telecommunications network operator providing to the Client, on 4SIGHT’s behalf, a physical telephone line and/or access to a telecommunications network;
“Fixed Charges” means all those sums (other than call charges) charged by the Carrier to 4SIGHT on a monthly basis in connection with the provision of the Network Services to the Client including (without limitation) those charged in respect of line rental, SIP channel rental, broadband services, ethernet services, IP numbering, inbound services, inbound numbers, DDI numbers, premium numbers and any other such carrier service that is provided on a fixed charge basis;
“Framework” means the version of 4SIGHT’s master services agreement referenced on the Work Order, or otherwise the applicable master services agreement between the parties;
“Indirect Access” means a method that allows the Carrier to identify call traffic as being routed by 4SIGHT, normally obtained by means of carrier pre-selection, auto dialler equipment or identifying call traffic on a least cost routing basis;
“Minimum Month’s Call Charges” means the average of the six highest months’ call charges incurred by the Client under this Contract. If the Client has incurred less than six month’s call charges, the highest month’s call charges incurred by the Client under this Contract;
“Minimum Term” means the minimum period for the provision by 4SIGHT of the telephone numbers as set out in the Work Order, but (except for lines specified to be temporary in the Work Order or where Special Terms have been agreed) in any event not less than twelve (12) months from the Commencement Date;
“Network Services” means the provision of a voice telecommunications service via a telephone number which enables the Client to make calls to local, national, international, mobile and/or non- geographic telephone numbers by means of Indirect Access or SIP, a line rental service for a telephone number or any other service provided by 4SIGHT by means of the Carrier’s network;
“Previous Service Provider” means the organisation providing services similar to the Network Services to the Client prior to the Commencement Date;
“Pricing Schedule” means the schedule of prices for the Network Services as set out in the Work Order;
“Renewal Term” has the meaning set out in clause 4.1;
“Service Terms” means these terms and conditions, as incorporated into the Contract via the Work Order/the Framework;
“SIP” means session initiation protocol, used for controlling telecommunications sessions over internet protocol;
“Special Terms” means those non-standard terms agreed between 4SIGHT and the Client as set out in the Work Order;
“Work Order” means an order form or other written order document (including any continuation sheets) issued by 4SIGHT (including by e-mail) for signature or agreement by the Client containing information regarding the Network Services.
References to “clauses” are to clauses of these terms and conditions (and not clauses of the Framework), unless otherwise stated.
2.Service Terms
2.1These Service Terms shall apply to and be incorporated into the Contract when referenced in the applicable Work Order.
3. Use of the Network Services
3.1 The Client agrees to contract for the use of and 4SIGHT agrees to provide the Network Services for not less than the Minimum Term (subject to earlier termination of the Contract in accordance with these terms and conditions).
3.2 The Client’s obligations under clause 3.1 shall not be affected by any delay or failure in the transfer to 4SIGHT of any telephone number, whether caused by the Client, the Previous Service Provider, any third party or in any circumstance that 4SIGHT cannot reasonably be expected to control.
Line rental
3.3 The Client agrees to the Previous Service Provider disclosing to 4SIGHT all information relating to the transfer or removal of equipment and/or select services that exist on any line at the time of the Commencement Date.
3.4 The Client agrees to 4SIGHT charging the Client a fee for any select services and/or equipment transferred to 4SIGHT from the Previous Service Provider.
3.5 The Client shall ensure that the telephone numbers specified in the Work Order may be transferred to 4SIGHT from the Previous Service Provider and authorises their transfer to 4SIGHT. If 4SIGHT is unable to provide all or any part of the Network Services as a result of the Client’s failure to terminate its contract with the Previous Service Provider then, without prejudice to 4SIGHT’s other rights and remedies, the Client shall repay to 4SIGHT immediately on demand any volume-based discount, subsidy and other benefit given to the Client up to that date, and 4SIGHT may vary the Pricing Schedule at its reasonable discretion on written notice to the Client.
Indirect Access
3.6 The Client shall permit 4SIGHT to attend the Client’s site to program least cost routing in the Client’s telephone system to allow access to the Carrier’s telephone network.
3.7 The Client shall be responsible for ensuring that its equipment maintenance is not jeopardised in any way as a result of requesting and/or receiving the Network Services.
4. Duration
4.1 The Contract shall come into force on the Commencement Date and continue for the Minimum Term and, if applicable, any Renewal Term. Following the expiry of the Minimum Term, the Contract shall automatically renew for successive periods of twelve months (“Renewal Term”), unless either party gives the other party written notice at least three months’ prior to the Anniversary Date that it does not wish to renew the Contract
5. Charges
5.1 Line rental for the Network Services shall be invoiced by 4SIGHT one (1) month in advance, all other charges relating to the Network Services shall be invoiced by 4SIGHT one (1) month in arrears, in accordance with the Pricing Schedule or otherwise as varied from time to time in accordance with the
5.2 The Client shall pay all line rentals and other charges for the Network Services invoiced by 4SIGHT within 14 days of the relevant invoice.
5.3 4SIGHT reserves the right to charge the Client for any costs incurred, and for any necessary equipment used by 4SIGHT, to rectify a fault where the cause or problem does not lie within the Network Services.
5.4 Any limits or allowances specified by each Carrier in connection with the Client’s use of the Network Services are passed onto the Client by 4SIGHT. Should any limit be exceeded by the Client, 4SIGHT are able to charge the Client their standard pence per minute charge for all calls made as set out in the Pricing Schedule.
6. Limitation of the Network Services
6.1 Due to the nature of the Network Services 4SIGHT cannot guarantee that the Client’s call traffic will always be conveyed via the Network Services, nor that the Client will not be charged by another carrier for the conveyance of any call. 4SIGHT will not be responsible for that carrier’s charges.
6.2 The Client acknowledges that the Network Services are made available via the Carrier. The Client agrees to Indemnify and keep indemnified 4SIGHT against all additional costs and/or expenses which are imposed on 4SIGHT by the relevant Carrier and which are related to any act or omission of the Client in connection with the use of the Network Services.
7. Suspension of Network Services
7.1 If the Carrier suspends or terminates carrier pre-selection for the Network Services, 4SIGHT shall notify the Client as soon as is reasonably possible after becoming aware of it and 4SIGHT shall endeavour to reinstate the Network Services as quickly as practicable but otherwise shall have no liability to the Client in respect of such suspension or termination.
8. Termination
8.1 If the parties agree to exclude a telephone number from the Contract prior to connection, the Client shall reimburse to 4SIGHT any circuit cancellation charges levied on 4SIGHT by the Carrier for that telephone number within fourteen (14) days of such cancellation.
8.2 4SIGHT reserves the right to cancel an order where the Carrier rejects the order after the site survey has been completed, and to invoice the Client for all costs levied on 4SIGHT by the Carrier related to the order.
8.3 Without prejudice to any of 4SIGHT’s rights and remedies, if the Client ceases to route its calls by means of the Network Services without providing notice of disconnection or termination under clause 4.1, the Client shall remain liable to 4SIGHT for the cost of all calls made via its equipment or premises (including made fraudulently by third parties).
8.4 4SIGHT may suspend or withdraw the SIP “Presentation Calling Line Identity” service without liability to the Client where:
8.4.1 following a configuration change the Client fails to make at least one test call within twenty (20) working days;
8.4.2 the Client reverses the configuration change;
8.4.3 the presentation number is being misused in any way; and/or
8.4.4 the presentation number is connected to a revenue sharing number that generates excessive or unexpected call charges.
9. Consequences of termination and minimum spend
9.1 If the Network Services are disconnected on the instructions of the Client, or the Contract is terminated by the Client, prior to expiry of the Minimum Term or any Renewal Term, the Client shall pay to 4SIGHT liquidated damages equal to:
9.1.1 the Fixed Charges for balance of the period from the date of such early disconnection/termination to the end of the Minimum Term or, as appropriate, the Renewal Term; and
9.1.2 in respect of call and other non-periodic charges, 50% of the Minimum Month’s Call Charges per month for balance of the period from the date of such early disconnection/termination to the end of the Minimum Term or, as appropriate, the Renewal Term; and
9.1.3 any termination charges imposed on 4SIGHT by the Carrier.