Terms and Conditions:
These terms and conditions (as amended under clause 32.2) (“Conditions”) govern the sale of goods and/or services and licensing of software by Computing information Systems Limited, registered in England and Wales with no. 02420578, with registered address at 6 Langdale Court, Witney, Oxfordshire, OX28 6FG (“CIS”) to the person/firm to who buys such goods/services (“Customer”). These Conditions apply to the exclusion of any other terms that Customer seeks to impose, or which are implied by trade, custom, practice or course of dealing.
***Note particularly clause 25 (Limitation of Liability)***
In these Conditions the following definitions apply: (i) person includes a natural person, corporate or unincorporated body; (ii) a reference to CIS or Customer includes its personal representatives, successors and permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation; (iv) any phrase introduced by the terms including or include shall be illustrative and shall not limit the sense of the preceding words; (v) a reference to writing or written includes emails but excludes faxes; and (vi) the terms “Controller”, “Personal Data” and “Processor”, shall have the meanings attributed to them in the Data Protection Legislation, and “Processing” and “Process” shall be construed accordingly.
“Acceptable Use Policy” (“AUP”): the policy applicable to the relevant Services, as detailed in the Quote, or any other acceptable use policy mandated by CIS from time to time on written notice to the Customer.
“Additional Corrective Maintenance”: in accordance with clause 15.5.2 and clause 16.1 of these Conditions: making any adjustments to the Maintained Equipment; and replacing any parts or components of the Maintained Equipment which are required to restore it to Good Working Order.
“Additional Hardware Maintenance Services”: any Additional Corrective Maintenance and/or any Excluded Maintenance performed by CIS in accordance with these Conditions.
“Affiliate”: each agent, employee, contractor or sub-contractor of a party or the party's Group and any additional Affiliates listed in the applicable part of the Quote.
“Applicable Laws”: the laws of England and Wales, together with any other mandatory laws, regulations, regulatory policies, guidelines or industry codes which apply to the supply of Goods or Services made under these Conditions.
“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Call”: the transmission of voice or data provided by means of the Mobile Services or Telephony Services, as appropriate.
“Caller Line Identity” (“CLI”): the identity of the calling party initiating a Call being (in most circumstances) the telephone number of the calling party.
“Carrier Network”: the communications network or networks selected from time to time by CIS for the purposes of conveying Calls through the Mobile Services.
“Charges”: the charges payable by the Customer to CIS, as set out in the relevant Order.
“CIS Personnel”: CIS’ employees, directors and agents, together with employees, directors and agents of any contractor undertaking activities on behalf of CIS in relation to the performance of its obligations under the applicable Contract.
“Confidential Information”: information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information relating to the business of either party, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information and/or circumstances of its disclosure.
“Contract”: each contract (as defined in clause 2.1) between the Customer and CIS relating to the supply of Goods, Services or the licensing of software.
“Critical Fault”: a reproducible fault which hinders or prevents the Customer from using a material part of the functionality of the Supported Software.
“Customer Data”: any data (including any Personal Data relating to the personnel, clients and/or suppliers of the Customer), documents, text, drawings, diagrams, images or sounds (together with any database made up of any of these), embodied in any medium, that are provided to CIS by or on behalf of the Customer, or which CIS is required to generate, Process, store or transmit pursuant to these Conditions or any Order.
“Customer Personnel”: employees, directors and agents of the Customer, together with employees, directors and agents of any contractor undertaking activities on behalf of the Customer who are not CIS Personnel.
“Data Processing Particulars”: the following details, as provided in the Order: (i) the subject matter, duration, nature and purpose of the Processing; (ii) the type of Personal Data being Processed; and (iii) the categories of Data Subjects.
“Data Protection Legislation”: any law, statute, regulation, rule or other binding restriction regarding the protection of individuals with regards to the Processing of their Personal Data to which a party is subject, including the DPA (up to and including 24 May 2018) and the GDPR (from 25 May 2018) and any code of practice or guidance published by the Information Commissioner’s Office from time to time.
“Data Subject”: has the meaning set out in the GDPR.
“Default”: any act or omission of a party, or failure by a party to perform a relevant obligation under a Contract.
“Delivery Location”: the relevant location identified in the Quote.
“Deliverables”: all software code, documents, products and materials in any form: (i) developed by CIS or its agents, contractors and employees; and/or (ii) licensed by CIS to the Customer and its Affiliates, as part of or in relation to the performance of its obligations under a Contract, including all Intellectual Property Rights as may be embodied therein. For the avoidance of doubt, Deliverables shall exclude any Reseller Software.
“DPA”: the Data Protection Act 1998.
“Effective Date”: in respect of a particular Contract, the date upon which such Contract is signed.
“Emergency Maintenance”: maintenance resulting from the identification of an issue requiring urgent resolution for reasons of safety, security, as mandated by Applicable Law or as CIS may otherwise determine using its own skill and judgment.
“EULA”: the end user licence agreement under which: (i) in respect of traditional software licensing, the Reseller Software is licensed to the Customer; and (ii) in respect of subscription based solutions, the Reseller Solution is made available to the Customer, as detailed in the Quote.
“Excluded Clauses”: the excluded clauses set out in the Quote.
“Excluded Maintenance”: any Hardware Maintenance Services required to restore any malfunctioning or failed Maintained Equipment to Good Working Order to the extent the malfunction or failure results from or is caused by any of the Excluded Clauses.
“Extended Support Service”: the support service more particularly described in the Quote.
“Group”: each and every entity that directly or indirectly controls, is controlled by, or is under common control with a party, for so long as such control exists. In the case of companies and corporations, control means beneficial ownership of more than 50% of the voting stock, shares, interest or equity in an entity; in the case of any other legal entity, “control” and “controlled” shall exist through the ability to directly or indirectly control the management and/or business of the legal entity.
“GDPR”: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016, together with any implementation of the above into UK law. Any reference to “articles” are references to the GDPR.
“Good Industry Practice”: the exercise of that degree of care, skill, diligence, prudence, efficiency, foresight and timeliness which would be reasonably expected at such time from a supplier of similar services to the Services detailed in the relevant Contract.
“Goods”: the goods (or any Deliverables forming part of the provision of Services) set out in the Order (or any part of them).
“Goods SoW”: the statement of work relating to the Goods, detailing the specification for the Goods and including any relevant plans or drawings, as set out in the Quote.
“Good Working Order”: the Maintained Equipment operates substantially in accordance with the Operating Manuals.
“Hardware Maintenance Services”: the hardware maintenance services to be provided by CIS in accordance with clause 15.
“Hosting Environment”: the technical infrastructure and platform for the Hosting Services, as further described in the Quote.
“Hosting Services”: the provision of the Hosting Environment and other associated activities, as specified in the Quote or as part of the Services SoW.
“Included Corrective Maintenance”: making any adjustments to the Maintained Equipment; and
replacing any parts or components of the Maintained Equipment, required to restore the Maintained Equipment to Good Working Order, in accordance with clause 15.3.
“Initial Term” the period of time described as such in clause 26.1.
“Insolvency Event”: (a) the Customer suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts under section 123 of the Insolvency Act 1986 or is deemed either unable to pay its debts or as having no reasonable prospect of so doing within the meaning of section 268 of the Insolvency Act 1986 or (if a partnership) has any partner to whom any of the above applies; (b) the Customer starts negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for/enters into any arrangement with its creditors; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for/in connection with the winding up of the Customer; (d) the Customer is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or part of its assets which is not discharged within 14 days; (f) an application is made to court, or an order is made to appoint an administrator, or notice of intention to appoint an administrator is given or an administrator is appointed over the Customer; (g) a floating charge holder over the assets of the Customer becomes entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; (i) any event analogous to those mentioned in (a)-(h) above in another jurisdiction.
“Installation Services”: those Services described in clause 8 and detailed in the Quote.
“Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Internet Connectivity Services”: the Services more particularly described in clause 9.
“Legacy Obligations”: any obligations in respect of non-current versions of the Software, as set out in the Quote.
“Licensor”: the licensor of the Reseller Software/supplier of the Reseller Solution, as detailed in the Quote.
“Licensed Software”: the Reseller Software or the Subscription Software, as applicable
“Location”: the location set out in the Quote, or any other location agreed between the parties in writing from time to time.
“Maintained Equipment”: the equipment specified as such in the Quote.
“Maintenance Release”: a release of Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
“Minimum Spend” the minimum spend detailed in the Quote either: (i) across all Services provided by CIS; or (ii) with respect to the specific Services to which a minimum spend applies, as stated in the Order.
“Mobile Services”: those Services described in clause 10 and detailed in the Quote.
“Modification”: any Maintenance Release or New Version acquired by the Customer from time to time.
“New Version”: any new version of the Software (or any part of it) which CIS publicly markets and offers for purchase to the Customer from time to time in the course of its normal business.
“Non-Critical Fault”: any fault in the Supported Software other than a Critical Fault.
“Normal Business Hours Call”: the hours of 8:00 am to 6:00 pm GMT on Business Days.
“Ofcom General Conditions”: the general conditions governing the provision of telecommunications services by Ofcom, as published by Ofcom from time to time.
“Operating Manuals”: all operating manuals, specifications and other manufacturer documentation relating to the Maintained Equipment.
“Optional Services”: any of the services listed in the Quote relating to the support of the Supported Software which are not part of the Standard Support Service or the Extended Support Service, that the Customer and CIS may from time to time agree shall be supplied to the Customer by CIS in accordance with clause 18.
“Order”: the Customer’s written acceptance of a Quote.
“Permitted Purpose”: the purpose of the Data Processing as set out in more detail in the Data Processing Particulars.
“Personal Data Breach”: has the meaning set out in the GDPR.
“Planned Maintenance”: maintenance intended to resolve or prevent minor issues, improve performance, make enhancements or implement configuration changes.
“Preventative Maintenance”: testing that the Maintained Equipment is functional; and making any adjustments as may be required to ensure the Maintained Equipment remains in Good Working Order, as more particularly described in the Quote.
“Quarter”: each period of 3 months commencing on the Effective Date.
“Quote”: CIS’ written quotation for the provision of Goods, Services and Software to the Customer, including the statement(s) of work relating to the same.
“Renewal Period” the period described as such in clause 26.1.
“Reseller Software”: the computer programme(s) which are referred to as “Reseller Software” in the Quote and all user documentation in respect of such programme(s).
“Subscription Software”: the subscription based solution(s) made available by CIS in accordance with the Quote and all user documentation in respect of such solution(s).
“Scheduled Maintenance Hours”: the time periods set out in the Quote for the performance of any maintenance (other than Emergency Maintenance).
“Security Requirements”: the requirements regarding the security of the Personal Data, as set out in the Data Protection Legislation (including, in particular, the seventh data protection principle of the DPA and/or the measures set out in Article 32(1) of the GDPR (taking due account of the matters described in Article 32(2) of the GDPR) as applicable.
“Services”: the services to be supplied by CIS to the Customer set out in the Quote, consisting of one or more of the following: Hosting Services, Installation Services, Internet Connectivity Services, Mobile Services, Support and Maintenance Services, and the Telephony Services, as appropriate.
“Service Credits”: in respect of a Service to be provided by CIS, the sums attributable to a failure of the Service Levels (if any), as set out in the Quote.
“Service Credit Limit”: in respect of a Service to be provided by CIS pursuant to a Contract, the limit on the accrual of Service Credits (if any), as set out in the Quote.
“Service Levels”: in respect of a Service to be provided by CIS pursuant to a contract, the service levels for the applicable Services (if any), as set out in the Order Form.
“Services SoW”: the statement of work relating to the Services, detailing the specification for the Services, as set out in the Quote.
“Services Term”: the term for the provision of Services (or where different elements of the Services are to be provided for differing terms, the term for that element), as set out in the Quote.
“Software”: the Software set out in the Quote or referred to therein.
“Software Maintenance Services”: includes (as appropriate): (i) the Standard Support Service; or (ii) the Extended Support Service.
“Sourcing Issue”: an inability on the part of CIS to source particular materials or resources (including CIS Personnel) on terms similar or identical to those available at the Start Date (including due to exchange rate fluctuations, increases in taxes or duties) or a change in Applicable Law.
“Standard Rates”: CIS’ standard rates for Services provided on a time and materials basis, as agreed between the parties from time to time.
“Standard Support Service”: the support service more particularly described in the Quote.
“Subject Access Request”: an actual or purported subject access request or notice or complaint from (or on behalf of) a Data Subject exercising his rights under the Data Protection Legislation.
“Support and Maintenance Services”: either: (i) the Software Maintenance Services; (ii) the Optional Services; (iii) the Hardware Maintenance Services; and (iv) the Additional Hardware Maintenance Services.
“Supported Software”: the software more particularly described at clause 13.1.
“Telephony Services”: those Services described in clause 12 and detailed in the Quote.
“Term” the period described as such in clause 26.1.
“Traffic”: Calls made or prospectively to be made by the Customer or any users authorised by the Customer pursuant to the Mobile Services.
“Updating Service”: the service to be supplied by CIS to the Customer under clause 14.1 and clause 14.2.
“Year”: the period of 12 calendar months from the Effective Date and each 12 calendar month period thereafter.
- Basis of Contract
- Each Quote constitutes an offer by CIS to sell Goods, provide Services and/or make available the Licensed Software. Subject to compliance with clause 2.3, an offer shall be deemed accepted when the Customer places an Order pursuant to that Quote, on which date a Contract shall come into existence (“Start Date”).
- Following acceptance of an Order pursuant to clause 2.1 above, that Order may not be terminated except in accordance with the Quote or these Conditions.
- Unless expressly stated to the contrary in the relevant Quote or otherwise agreed in writing by CIS, each Quote is only valid for 30 days from its date of issue.
- If there is an inconsistency between any of the provisions of a Contract, the following descending order of priority shall apply: (i) these Conditions; and then (ii) the Quote itself.
- Each party warrants that: (i) it has full capacity to enter into and perform its obligations under a Contract; and (ii) each Contract is executed by a duly authorised representative of that party.
- The warranties set out at clause 2.5 above are deemed to be repeated by each party in respect of a Contract on the applicable Start Date for the same.
- CIS’ Obligations
- In consideration for the payment of the Charges, CIS will supply the Goods, provide the Services and/or grant access to any Licensed Software (as appropriate) in accordance with the Order and these Conditions, from the Effective Date.
- CIS warrants and represents to the Customer that:
- the Hardware, Services and Deliverables (as applicable) will conform in all material respects with all descriptions, specifications, samples and drawings provided to the Customer in the Quote;
- the Hardware will be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
- it has, and will continue to have, all necessary rights in and to any and all Intellectual Property Rights that it purports to grant to the Customer pursuant to a Contract.
- All other representations or warranties (whether written or oral, express or implied by statute, common law or otherwise) apart from those expressly set out in these Conditions are hereby excluded. In particular, but without prejudice to the generality of the foregoing, CIS makes no representation or gives any warranty (whether express or implied, statutory and/or otherwise), and will have no liability, regarding the fitness of the Goods, Services or Licensed Software for any purpose, whether or not such purpose is disclosed to CIS.
- CUSTOMER Obligations
- The Customer shall:
- provide all necessary co-operation reasonably required in relation to an Order;
- provide such assistance from the Customer Personnel as may be reasonably requested by CIS from time to time;
- ensure that the terms of each Order and any specification are complete and accurate;
- use reasonable endeavours to respond promptly to any request for a decision, guidance, information or instruction which CIS may submit in relation to the Services from time to time;
- use its best endeavours not to do or permit anything to be done that will or may damage the business, reputation, image and/or goodwill of CIS;
- ensure that there are in place all necessary consents, licences and permissions required to permit CIS to access and use all the Customer Materials and any other items as may be appropriate in connection with each and every Contract; and
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to CIS’ data centres (or, where appropriate, the third-party portal through which CIS provides Services to the Customer).
- With respect to any Customer Data or other content hosted on, or distributed by means of the Services, the Customer shall:
- comply with the AUP;
- only use the Services for lawful purposes and shall not use the Services: (i) in any way that breaches any Applicable Law; (ii) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; (iii) for the purpose of harming or attempting to harm minors in any way; (iv) to send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in clause 4.3; (v) transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); (vi) knowingly transmit any data, send or upload any material that contains Harmful Code; and (vii) not (and shall not attempt to) probe, scan, penetrate or test the vulnerability of any systems or networks of CIS or to breach any of CIS’ security or authentication measures, whether by passive or intrusive techniques, without CIS’ prior written consent.
- The content standards are as follows.
- Content must: (i) be accurate (where they state facts); (ii) be genuinely held (where they state opinions); and (iii) comply with Applicable Law
- Content must not: (i) contain any material which is defamatory of any person, obscene, offensive, hateful or otherwise inflammatory; (ii) promote sexually explicit material; (iii) promote violence; (iv) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (v) be used to impersonate any person, or to misrepresent your identity or affiliation with any person; (vi) infringe the copyright, database right or trade mark of any other person; (vii) give the impression that they emanate from CIS, if this is not the case; or (viii) advocate, promote or assist any unlawful act.
- The terms of this clause 5 apply in respect of any Goods to be supplied pursuant to a Contract.
- CIS shall supply the Goods to the Customer pursuant to each Contract. The parties acknowledge that CIS is not the manufacturer of the Goods. As a reseller of such Goods, CIS agrees to pass on to the Customer the benefit of any warranties that it obtains from the manufacturer of the Goods (“Manufacturer Warranties”) and shall provide details of the same upon request, for the period that such Manufacturer Warranties are afforded to CIS (“Warranty Period”).
- Where the Customer claims under any of the Manufacturer Warranties (and such claim is justified), the terms of the Manufacturer Warranties shall determine the Customer’s recourse. CIS shall use its reasonable endeavours to assist the Customer to obtain such recourse (subject to the Customer reimbursing CIS’ expenses relating to the same), but shall not be responsible if the manufacturer refuses to comply with any such warranty or if the manufacturer is unable to comply where, for example, it has become insolvent.
- Delivery dates are approximate only and time of delivery is not of the essence. Delivery shall be completed on the Goods' arrival at the Delivery Location. The Customer is responsible for unloading, and any unloading that takes place shall be at the Customer’s risk.
- CIS shall deliver the Goods to the Delivery Location at any time after CIS notifies the Customer that the Goods are ready.
- If the Customer fails to accept or take delivery of the Goods (including failing to provide appropriate delivery instructions to CIS within 5 Business Days of CIS notifying the Customer that the Goods are ready):
- delivery of the Goods is deemed to be complete at 9.00am on the 3rd Business Day following attempted delivery or notification that the Goods are ready, as appropriate; and
- CIS shall store the Goods until delivery takes place, and may at its option charge the Customer for all related costs and expenses (including insurance).
- Where 10 Business Days have elapsed since CIS notified the Customer that the Goods are ready, and the Customer has not taken possession of them, CIS may resell or otherwise dispose of all of the Goods or any part of them, and after deducting reasonable storage and selling costs, charge the Customer for any shortfall below, the price of the Goods.
- CIS may deliver in instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- Risk in the Goods shall pass to the Customer on completion of delivery at the Delivery Location.
- Title to the Goods shall not pass to the Customer until CIS has received payment in full (in cleared funds) for the Goods and Services (and all other goods and services that CIS has supplied to the Customer or any part of its Group for which payment is due, under this or any other Contract). From delivery until title has passed to the Customer, the Customer shall:
- hold the Goods on a fiduciary basis as CIS’ bailee;
- store the Goods separately from all other goods and ensure they are readily identifiable as CIS’ property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured on CIS’ behalf against all risks for their full price; and
- give CIS such information relating to the Goods as CIS requires, but the Customer may resell/use the Goods in its ordinary course of business.
- Where the Customer is held to be insolvent in accordance with clause 26.3 (or CIS believes that the same is about to occur) before title to the Goods passes to the Customer, if the Goods have not been resold or irrevocably incorporated into another product or service, (without limiting any other right or remedy CIS may have), CIS may demand the Customer deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer (or a third party) where the Goods are stored to recover them. The Customer shall ensure that CIS shall have similar rights of entry with respect to any third-party who takes possession of the Goods prior to the passage of title from CIS to the Customer.
- The terms of this clause 6 apply with respect to any Services supplied pursuant to a Contract.
- Where CIS will be providing Maintenance and Support Services, the terms of clauses 13-19 shall also apply to the provision thereof.
- During the applicable Services Term, CIS shall provide the applicable Services to the Customer in accordance with the Services SoW in all material respects.
- CIS will use its reasonable endeavours to supply all relevant Services in accordance with any performance metrics set out in the relevant statement of work.
- CIS shall use reasonable endeavours to meet any performance dates specified in the Services SoW, but any such dates are estimates only and time is not of the essence for the performance of the Services.
- CIS shall have the right to make any changes to the Services which: (i) improve the nature or quality of the Services; (ii) are necessary to comply with Applicable Laws; (iii) result from a Sourcing Issue; or (iv) do not materially negatively affect the nature or quality of the Services, and CIS shall notify the Customer in any such event. Such notification shall include any variations to the Charges which CIS reasonably considers to be necessary in light thereof.
- In providing the Services CIS shall: (i) allocate sufficient resources to the Services to enable it to comply with its obligations; and (ii) where applicable, only undertake maintenance during the Scheduled Maintenance Hours (save in respect of Emergency Maintenance).
- In respect of a Service to be provided by CIS pursuant to a Contract, where Service Credits accrue in accordance with the Quote, subject to the Service Credit Limit, CIS shall automatically credit the Customer with the applicable Service Credits. Service Credits shall either be shown as a deduction from the amount due from the Customer to CIS in the next invoice then due to be issued under the Service Contract, or CIS shall issue a credit note against a previous invoice and the amount for the Service Credits shall be repayable by CIS as a debt within 10 Business Days of issue of the credit note.
- The Service Credits shall be the exclusive financial remedy for the Customer for each service failure for which a Service Credit has been set, unless:
- the Customer is otherwise entitled to terminate the Contract (or a part thereof) for a Default by CIS in accordance with these Conditions; or
- the failure to perform the relevant Services in accordance with the Service Levels has arisen due to theft, gross negligence, fraud, fraudulent misrepresentation or wilful default.
- The parties agree that any such Service Credits have been calculated as, and are, a genuine pre-estimate of the loss likely to be suffered by the Customer.
- Where there is a Default on the part of the Customer, CIS (without limiting its other rights or remedies) may suspend performance (and is relieved from its performance obligations) until the Customer remedies the same.
- Hosting Services
- The terms of this clause 7 apply where CIS has agreed to provide Hosting Services.
- CIS shall provide the Hosting Services materially in accordance with the description and specification set out (or referred to) in the Quote, including ensuring that the relevant elements of the Hosting Environment substantially comply with any minimum specification set out in the Quote.
- CIS shall use reasonable endeavours to achieve any Service Levels specified in the Quote.
- For the purposes of determining achievement of any “availability” Service Level, availability shall be calculated by determining (as a percentage) the availability of the Hosting Services (or part thereof) during the Relevant Hours (see Quote) within the Measurement Period (see Quote).
- When making use of the Hosting Services, the Customer shall:
- not exceed the bandwidth, space or any other limitation set out in the Quote;
- not resell the Hosting Services (or any part of them); and
- comply with the AUP at all times.
- Failure to comply with clause 7.5 shall entitle CIS to suspend, restrict or terminate the Customer’s access to the Hosted Services as CIS may decide in its absolute discretion.
- CIS may back up data on some servers solely for operational purposes. Save where otherwise stated in the Services SoW, these backups are not undertaken as part of any Hosted Services or for the benefit of the Customer. The Customer acknowledges that it is at all times responsible for maintaining full and current backups of any Customer Data stored on the Hosting Environment.
- Where CIS wishes to undertake any Planned Maintenance, it shall provide the Customer with as much notice as possible before doing so, and shall only carry out the Planned Maintenance during the Scheduled Maintenance Hours.
- Emergency Maintenance may be undertaken at any time after providing the Customer with as much written notice as possible.
- Neither Planned Maintenance, nor Emergency Maintenance, shall count as unavailable time for the purposes of the calculation of any “availability” Service Level.
- Installation Services
- The terms of this clause 8 apply where CIS has agreed under a Contract to install any items of hardware or software (the “Installation Materials”), as stated in the Quote.
- The Customer shall provide all cabling, network interfaces, power and power adapters and any other equipment or materials, and facilitate such access to the Customer's existing systems (or those of its third-party contractors) as may be needed for the install.
- CIS shall carry out any such installs at the Location or via remote access, at CIS’ option, and subject the Installed Materials to its standard installation and acceptance tests (which shall be in accordance with Good Industry Practice).
- The Customer shall be deemed to have accepted the Installation Materials if either: (i) the acceptance testing is certified by CIS to be successful; (ii) the Customer fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Quote (in respect of which, time shall be of the essence); or (iii) the Customer commences operational use of the Installation Materials.
- Internet Connectivity services
- The terms of this clause 9 apply where CIS is supplying Internet Connectivity Services.
- The Internet Connectivity Services will comprise the provision of either:
- a dedicated, private, fixed capacity circuit delivered from the network used by CIS to the Location with Internet connectivity. Such Services may share infrastructure with other services providers;
- a dedicated, private, fixed capacity circuit delivered point to point between the sites nominated by the Customer in writing and specified in the Quote. These Services do not share infrastructure with other providers and will be delivered as an unmonitored standalone Service;
- Asymmetric Digital Subscriber Line services;
- Symmetric Digital Subscriber Line services;
- fibre to the cabinet/fibre to the premises services; or
- Metallic Path Facility services.
- The Internet Connectivity Services shall comply with the relevant specification as set out in the Quote, from the Location set out in the Quote, unless expressly stated to the contrary.
- The Customer acknowledges that it shall (unless otherwise stated in the Quote) have sole responsibility for: (i) the provision of equipment for use within the Customer’s network infrastructure; and (ii) the physical linkage between the internet connection and the Customer’s network infrastructure.
- Any equipment connected for use with the Internet Connectivity Services must:
- be technically compatible and not harm the network used by CIS or another party’s network or equipment;
- be connected and used in line with any relevant instructions or laws; and
- comply with all relevant standards, including:
- any legal requirements imposed upon the parties including requirements arising from General Condition 2 set under section 45 of the Communications Act 2003; and
- any relevant specification notified by OFCOM in implementation of the recommendations of the Network Interoperability Consultative Committee.
- CIS will not be liable for failure to meet any obligations under these Conditions if any equipment is found to be connected otherwise than in accordance with this clause.
- CIS reserves the right to disconnect any of the Customer's equipment if the Customer does not fulfil its obligations under this clause 9 or if in the reasonable opinion of CIS, the Customer's equipment is liable to cause the death of, or personal injury to any person.
- Where it is determined that excess construction charges must be incurred in order to provide the Internet Connectivity Services, CIS shall notify the Customer in writing of the relevant charges and the reasons for them. The Customer shall indicate acceptance of the excess construction charges in writing. All such charges will be included with the first monthly invoice for the Internet Connectivity Services.
- Mobile Services
- The terms of this clause 10 shall apply where CIS is supplying Mobile Services.
- With respect to the Mobile Services, CIS shall: (i) establish the connection of each individual CLI number provided by the Customer in accordance with clause 10.5 to a Carrier Network; and (ii) route such Traffic as it may from time to time receive from the Customer via a Carrier Network for onward conveyance to the called destinations.
- Save where a live line rental exists in relation to the applicable CLIs, CIS shall, on 20 Business Days' written notice be entitled to delete CLIs which have not been used for the previous 6 months.
- The Customer agrees to pay CIS for the Mobile Services on the basis of a rate per minute for all Traffic routed via a Carrier Network. Calls shall be billed in 1 second units. The individual Calls are billed up to the nearest £0.0001 and total Call charges rounded up to the nearest £0.0001.
- The Customer shall:
- provide CIS with contact details for all users of the Mobile Services and keep these up-to-date;
- send to CIS (and update where necessary) a list of its user’s CLI numbers and BT account numbers and user details for provisioning on to the Carrier Network;
- be liable for the cost (in the case of ‘line only’ contracts) of all Calls passed over the line at the rates then in force;
- be liable for the cost (in the case of ‘line only’ contracts) of fault management, BT call out and any network charges;
- pay a ‘one off’ Carrier pre-selection (“CPS”) charge and/or transfer charge when registering the line in accordance with the rates then in force;
- be liable for the cost of any mis-selling action or Ofcom or Ombudsman award levied against CIS that was wholly incurred through the Customer's sales process; and
- be liable at the rates then in force for the cost of any CPS application rejected due to inaccurate information.
- The Customer shall not, and shall procure that its users do not connect or cause or suffer any equipment to be connected to any apparatus providing the Mobile Services other than equipment approved for connection under the Communications Act 2003. CIS shall not be under any obligation to connect or keep connected any equipment if it is not so approved or if, in the opinion of CIS, it is liable to cause death, personal injury, damage to or to impair the quality of the Mobile Services or a Carrier Network.
- Software Resale
- The terms of this clause 11 apply where CIS is supplying either: (i) Reseller Software; or (ii) a Reseller Solution.
- The Customer shall be licensed to use the Reseller Software only as specified in the EULA. For the avoidance of doubt, no licence is granted by CIS.
- Where the relevant solution is subscription based, the Customer shall subscribe to the Reseller Solution pursuant to the terms of the EULA.
- At the Customer's request (and expense) CIS shall use its reasonable endeavours to assist the Customer when it interacts with the Licensor and in particular, shall assist the Customer to enforce the terms of the EULA.
- Telephony Services
- The terms of this clause 12 shall apply where CIS is supplying Telephony Services.
- CIS shall provide the Telephony Services at the Location described in the Quote and in accordance with any specification agreed in the relevant Services SoW.
- With respect to public emergency Calls made to 999 or 112 (“Emergency Calls”) the Customer acknowledges:
- Emergency Calls will not work where the Telephony Service is in use outside of England, Wales, Scotland and Northern Ireland;
- where the Telephony Service is unavailable for any reason, Emergency Calls may not be connected;
- emergency services may be unable to identify the location of an Emergency Call, and may be unable to keep the line open where it is disconnected by the Customer.
- Where the Telephony Service is suspended for any reason, Emergency Calls will continue to connect.
- CIS shall use its reasonable endeavours to assist the Customer to port any telephone number upon commencement or termination of the Telephony Service, but shall not be liable for any inability to retain or use a given telephone number.
- Supported Software
- The Supported Software is:
- the Software set out in the Quote;
- any Modification which is acquired by the Customer and which accordingly becomes part of the Software; and
- any other Software which CIS and the Customer agree should be Supported Software for the purposes of these Conditions from time to time.
- With respect to Maintenance Releases:
- as part of the Updating Service, CIS will (where permitted by the licensor of the relevant Software) from time to time make Maintenance Releases available to the Customer without charge; and
- if the Customer fails to make arrangements for the installation of a Maintenance Release within 1 calendar month of CIS’s notification to the Customer that such Maintenance Release is available, CIS may terminate the Support and Maintenance Services provided pursuant to this Schedule by giving 1 months' written notice to the Customer.
- In relation to New Versions, if CIS releases a New Version and the Customer decides not to acquire and install such New Version, that decision shall not give rise to any right to terminate the Support and Maintenance Services, nor shall it result in any adverse effect thereupon or the performance of CIS's obligations. However, if CIS has released a New Version since the version which forms part of the Supported Software, and the Customer has not, within 12 months of CIS's having notified the Customer that a New Version is available, acquired and installed that New Version, CIS may terminate the Support and Maintenance Services by giving [one month's] written notice to the Customer given at any time after the expiry of such period. Pending any such termination CIS's obligations in respect of the Supported Software shall be reduced to the Legacy Obligations and the Charges shall be reduced to the Legacy Fees.
- Software Maintenance Services
- Where stated in the Quote, CIS shall provide the following Software Maintenance Services:
- the Standard Support Service;
- the Extended Support Service;
- the Updating Service; and
- such of the Optional Services as are included from time to time within a Contract for Optional Services agreed between the parties.
- With respect to the Updating Service:
- CIS shall issue Modifications of the Software as soon as practicable after they are made available to CIS by the licensor of the relevant Software;
- the Updating Service shall include the supply to the Customer of all revisions to the Documentation which are necessary in order to reflect any Modification acquired by the Customer; and
- for the avoidance of doubt, the cost of the Updating Service is included in the Charges payable for the Standard Support Service, but excludes any sum payable by the Customer in respect of the licence of a New Version.
- Risk in, and title to, any media bearing any Software or Documentation or other information that may from time to time be supplied by CIS shall pass to the Customer on delivery to the Customer.
- Hardware Maintenance Services
- CIS shall provide the Hardware Maintenance Services for the Maintained Equipment at the Location to the Customer in accordance with:
- the description and specification set out in the Quote; and
- the Conditions.
- The Customer shall be entitled to change the Location on no less than 20 Business Days' notice to CIS.
- In performing the Hardware Maintenance Services, CIS shall restore any malfunctioning or failed Maintained Equipment to Good Working Order while in attendance at the Location. Where this is not reasonably practicable, or not reasonably practicable within Normal Business Hours (in the case of Preventative Maintenance and Included Corrective Maintenance), CIS shall either arrange for a further visit to the Location within Normal Business Hours to complete the repair, or remove the Maintained Equipment or part of the Maintained Equipment for repair off-site.
- On the Customer informing CIS that the Maintained Equipment is malfunctioning or has failed or is otherwise not in Good Working Order, CIS shall:
- attend at the Location during Normal Business Hours; and
- perform Included Corrective Maintenance of the Maintained Equipment.
- On the Customer informing CIS outside of Normal Business Hours that the Maintained Equipment is malfunctioning, has failed or is not in Good Working Order, CIS shall:
- attend at the Location; and
- perform Additional Corrective Maintenance of the Maintained Equipment.
- With respect to Excluded Maintenance:
- CIS is not obliged to perform any Excluded Maintenance unless the Customer has agreed to pay the applicable Charges in respect of it; and
- where CIS is performing or has performed the Hardware Maintenance Services in circumstances where it is subsequently established that the Maintained Equipment was not in Good Working Order due to any of the Excluded Causes, CIS may charge, and the Customer shall pay, the Additional Hardware Maintenance Services Charges in respect of that work.
- Any Additional Hardware Maintenance Services Charges shall be calculated from when the personnel arrive at the Location until they leave the Location.
- Replacements and Spare Parts
- Save where otherwise expressly stated in the Services SoW, in performing the Preventative Maintenance, Included Corrective Maintenance and the Additional Hardware Maintenance Services, CIS shall not source spare parts required to restore the Maintained Equipment to Good Working Order unless requested to do so by the Customer. CIS shall have the right to charge the Customer for the spare parts, together with the time incurred in sourcing them, in accordance with the CIS Standard Rates.
- All spare parts and/or replacements provided by CIS to the Customer shall become part of the Maintained Equipment and the property of the Customer. CIS hereby assigns to the Customer (by way of future assignment), with full title guarantee and free from all third-party rights, all spare parts and/or replacements provided by CIS. All parts and components removed from the Maintained Equipment by CIS in the course of performing the Preventative Maintenance, Included Corrective Maintenance and/or the Additional Hardware Maintenance Services shall, unless the Customer notifies CIS to the contrary, no longer constitute part of the Maintained Equipment and will be the property of CIS. The Customer will assign to CIS, with full title guarantee and free from all third-party rights, all parts and components removed from the Maintained Equipment by CIS in accordance with this clause 16.2.
- Performing the Support and Maintenance Services
- In consideration for performance of the Support and Maintenance Services specified in the Quote, or any additional Services requested by the Customer from time to time, the Customer shall pay the Charges.
- The Services shall be performed in accordance with:
- the description and specification set out in the Quote;
- the terms of this Schedule; and
- the Conditions.
- CIS shall use reasonable endeavours to comply with any response and resolution times included in the Quote.
- CIS shall provide the Services from the date stated in the Quote. The Services supplied under this Agreement shall continue to be supplied during the term specified in the Quote unless terminated earlier in accordance with the terms of this Schedule or the Conditions.
- Except where expressly agreed in writing to the contrary, the Charges shall not include travel or accommodation expenses, which shall become payable upon production of appropriate receipts.
- Optional Services
- The Customer may from time to time request Optional Services of the type set out in the Quote. CIS shall use reasonable endeavours to provide the requested services within a reasonable time, or at the times requested by the Customer.
- Where CIS agrees to provide Optional Services, such agreement shall be embodied in an order for Optional Services. Each order for Optional Services shall be made under, and shall incorporate, the terms of this Schedule.
- On-Site Services
- CIS's obligation to provide any Support and Maintenance Services on-site shall extend only to the Location.
- CIS shall ensure that, while on the Customer's premises, all CIS Personnel who enter such premises with the authority of the Customer for the purpose of, or in connection with, the provision of the Support and Maintenance Services, adhere to any security procedures and health and safety regulations made known to CIS in advance in writing.
- The price for Goods and Services is the price set out in the Quote. Where no price is quoted, it shall be:
- the price set out in CIS’ published price list as at the date of delivery of the relevant Goods or the Start Date for performance of the relevant Services; or
- where applicable in respect of Services, on a time and materials basis in accordance with the Standard Rates.
- Where the Quote specifies a Minimum Spend with respect to the Services (or any part of them), CIS may invoice the Customer for no less than the relevant Minimum Spend amount per month.
- Unless otherwise specified in the Quote, CIS may invoice the Customer as described in the table below:
|Service||Period of Invoice|
|Additional Hardware Maintenance Services:||50% upon acceptance of Quote, the remainder in accordance with agreed milestones (or if none, upon completion of the work)|
|Hardware Maintenance Services:||monthly in advance|
|Hosting Services:||monthly in advance|
|Installation Services:||50% upon acceptance of Quote, the remainder in accordance with agreed milestones (or if none, upon completion of the work)|
|Internet Connectivity Services:||monthly in advance|
|Mobile Services:||monthly in advance|
|Optional Services:||in accordance with agreed milestones (or if none, upon completion of the work)|
|Software Maintenance Services:||monthly in advance|
|Telephony Services:||monthly in advance|
- CIS may increase the Standard Rates no more than twice in any 12-month period. CIS shall give the Customer no less than 1 month notice of any such increase, and the increase may not exceed the percentage increase of the Retail Price Index in the 12 months immediately preceding the increase, or such replacement index as the parties may agree in writing from time to time, save in the case of a Sourcing Issue. Any increase shall apply with effect from the expiry of CIS’ notice.
- The Customer shall pay each invoice which is properly due and submitted to it by CIS within 30 days of invoice date, to a bank account nominated in writing by CIS. If CIS has not received a payment which is validly due within such period, and without prejudice to any other rights and remedies it may have (but subject to any Applicable Laws in force at the time which restrict or exclude the same):
- CIS may charge interest on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of Handelsbanken from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. Such interest shall accrue on a daily basis and be compounded quarterly; and
- CIS may charge an administrative fee determined according to the value of the payment not received, calculated as follows:
|Value of payment not received||Administrative fee|
|Up to £999.99||£40|
|£1,000 to £9,999.99||£70|
|£10,000 or more||£100|
- All Charges stated or referred to in a Contract are exclusive of:
- value added tax or other sales taxes, which shall be added to CIS’ invoice(s) at the appropriate rate; and
- all packing, insurance and transport costs, which shall be paid by the Customer.
- CIS may, without limiting its other rights or remedies, set off any amount owing to it by the Customer or any Affiliate against any amount payable by CIS to the Customer.
- Intellectual Property
- The Customer acknowledges and agrees that CIS and/or its Licensors own all Intellectual Property Rights in the Reseller Software, the Reseller Solution and the Services. Except as expressly stated herein, these Conditions do not grant the Customer any Intellectual Property Rights or any other rights or licences to, in or in respect of the Goods, Software, Services or any related documentation.
- CIS acknowledges and agrees that the Customer and/or its Licensors own all Intellectual Property Rights in the Customer Data. Except as expressly stated herein or as is necessary to perform CIS’ obligations under a Contract, these Conditions do not grant CIS any Intellectual Property Rights or any other rights or licences to or in respect of any Customer Data or Customer Materials.
- Nothing in these Conditions shall be construed so as to prevent CIS from using in the furtherance of its own business general know-how or expertise gained in its performance of a Contract, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of clause 22 or infringement of any Intellectual Property Rights.
- Each party may be given access to Confidential Information from the other party, any member of its Group or any of its Affiliates in order to perform its obligations under a Contract. A party's Confidential Information shall not include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party's lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to clause 22.4 below, each party shall hold the other's Confidential Information (including any such information originating from any of its Affiliates or any other member of its Group) in confidence and, unless required by