TERMS AND CONDITIONS FOR ETS HOSTED SERVICE
These terms and conditions, on acceptance, shall constitute a binding agreement between You and Occam Networks Limited of 5 Yeomans Court, Ware Road, Hertford, SG13 7HJ, UK (us or we) governing our provision to you and your use of the ETS Hosted service and our other services.
1.1. The definitions and rules of interpretation in this clause apply in these terms and clauses.
Contract: these terms and conditions and the Genesys quote which together constitute a legally binding contract between us.
Data Protection Legislation: the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 and any legislation of similar intent or purpose which may apply to the delivery or use of the Services.
Intellectual Property Rights: patents, rights to inventions, copyright, trademarks, domain names, rights in goodwill or to sue for passing off, rights in designs, database rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, renewals or extensions of, such rights, all rights of action that may have arise with respect thereto, and all similar or equivalent rights or forms of protection in any part of the world.
Our Materials: means any documents, notes, information, software, know-how or other materials owned or licensed by us, or obtained or developed by us;
Services: the ETS Hosted service
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
You: Customer Name
Your Contract Manager: your manager for the Services appointed in accordance with clause 4.1(a).
Your Materials: any documents, notes, information, software, know-how or other materials owned or licensed by you, or obtained or developed by you and which you provide to us in connection with the Services;
1.2. Paragraph headings shall not affect the interpretation of this agreement.
1.3. A reference to a statute or statutory provision is a reference to it as amended, extended or re- enacted from time to time.
1.4. References to clauses are to the clauses of these terms and conditions.
- APPLICATION OF THESE CLAUSES
2.1. These clauses shall:
(a) apply to our provision of the Services and your obligation to pay for them; and
(b) prevail over any inconsistent terms or clauses contained in, or referred to in, any purchase order or confirmation of order which you might issue to us, or which might be implied by law, trade custom, practice or course of dealing.
2.2. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on us unless in writing and signed by our duly authorised representative.
- OUR OBLIGATIONS
3.1. The Services will meet the service description in the Genesys Quotation.
3.2. We shall perform the Services with all reasonable skill and care consistent with the standards and practices to be expected of a reputable provider of IT services.
3.3. We will use reasonable endeavours to achieve 99.9% uptime for the ETS Hosted service (discounting any downtime caused by failures arising outside our data centre or planned
maintenance which has been notified to you in advance). We do not warrant that the ETS Hosted service shall be free of all defects at all times.
3.4. We shall appoint our Contract Manager who shall have authority to bind us contractually on all matters relating to the Services.
3.5. Notwithstanding the foregoing, we shall not be responsible for the acts or omissions of third parties (including any connectivity provider) except those of our own subcontractors.
3.6. We shall maintain adequate procedures under the Bribery Act 2010 and shall not engage in any activity, practice or conduct which would constitute an offence under that Act.
- YOUR OBLIGATIONS
4.1. You shall:
(a) co-operate with us in all matters relating to the Services and appoint your Contract Manager, who shall have the authority to contractually bind you on matters relating to the Services; and
(b) provide in a timely manner such access to your personnel and information (including any of your branding required for white labelling services) as is reasonably requested by us.
4.2. We are not responsible for validating or otherwise checking the information or materials provided by you and you will ensure that we are permitted to use the information and materials provided by you for the purpose of providing the Services on a royalty-free basis.
4.3. You will ensure that your users protect and keep confidential their login details for the ETS Hosted service and do not share them with each other or anyone else.
4.4. You will ensure that your use of the Services complies with all applicable laws and regulations and instructions or good practice guidance issued by any relevant regulators, including in particular (but without limitation) any conditions, codes, policies or guidance issued by Ofcom or the Information Commissioner.
4.5. You agree that you will use the ETS Hosted service only to test the telephone lines of your own company. You will not resell or otherwise make available the ETS Hosted service for the use of another telecommunications provider or any third party company nor attempt to do so.
4.6. The use of the ETS Hosted service can cause call charges to be incurred for any telephone lines you choose to test over the Public Switched Telephone Network (PSTN). You accept and acknowledge that you will be liable for those call charges, and that you will ensure that you have permission to incur those call charges before using the ETS Hosted service. All call charges can be found on the ETS Hosted web portal and will be charged monthly in arrears.
4.7. You shall not at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from us or employ any person who is, or has been, engaged as an employee of ours, nor attempt to do so.
- CHANGE CONTROL
5.1. We have no obligation to implement any change to the scope or manner of execution of the Services unless and until the parties have agreed in writing on the necessary variations to our charges, the Order Form and any other relevant terms of the Contract.
- INTELLECTUAL PROPERTY RIGHTS
6.1. All Intellectual Property Rights:
(a) within Our Materials or the methods or processes used by us to provide the Services shall be and remain vested in us or our licensors as the case may be; and
(b) within Your Materials shall be and remain vested in you or your licensors as the case may be.
6.2. We are not licensing you to copy or run any software nor (other than by displaying it on your VDU in the course of using the ETS Hosted service) to copy documentation. We remain the owner of all rights in the ETS Hosted service and in any associated software or documentation at all times. If you should make any copies or adaptations of all or any part of the ETS Hosted service and/or Our Materials other than as permitted by these terms then you agree that we will own those copies and adaptations and, by way of a present assignment of future rights, any intellectual property rights that may subsist in them.
6.3. We shall indemnify and hold you harmless from all losses sustained by you as a result of any claim by a third party that the use, possession or receipt of any part of the Services (the “Infringing Product”) infringes that third party’s IPR (an “IPR Claim”).
6.4. If any person makes an IPR Claim, or in either party’s reasonable opinion, such a claim is likely to be made, we shall at our option, promptly and at our own expense either:
(a) procure for you the right to continue using, possessing or receiving the Infringing Product; or
(b) modify or replace the Infringing Product with a substitute product that complies with our obligations under the Contract; or
(c) withdraw the Infringing Product, terminate the Contract and refund to you any payments in advance you might have made for Services not yet received.
6.5. You will indemnify and hold us harmless from all losses sustained by us as a result of any claim by a third party that the use, possession or receipt of Your Materials infringes that third party’s IPR (an “IPR Claim”).
6.6. If any third party makes an IPR Claim against you or us, or notifies an intention to make a IPR Claim against you or us, the indemnified party shall:
(a) as soon as reasonably practicable, give written notice of the IPR Claim to the indemnifying party, specifying the nature of the IPR Claim in reasonable detail;
(b) not make any admission of liability, offer of settlement or compromise in relation to the IPR Claim without the prior written consent of the indemnifying party and grant full control over the defence of the IPR Claim to that party;
(c) if we ask you to do so, immediately cease using the Infringing Product and instead use the substitute product provided under clause 6.4(b);
(d) cooperate fully with the indemnifying party as to enable them and their professional advisers to assess and defend the IPR Claim.
7.1. Each party (hereafter called the “Receiving Party”) undertakes to keep and maintain all Confidential Information (which term shall include the details of functionality provided by the ETS Hosted service, user interface and performance characteristics, all information marked or notified to the Receiving Party as confidential or proprietary together with all other information which would in the normal course of business be regarded as confidential or proprietary) in the strictest confidence and not to disclose such information to any third party without the prior written consent of the other.
7.2. Each party shall ensure that its employees and sub-contractors:
(a) shall only be given access to Confidential Information received from the other party on a “need to know” basis for the purposes of this Contract;
(b) shall have been made aware of the requirements of confidentially set out in this Contract;
(c) shall not cause or permit the Confidential Information to be disclosed to any third party.
7.3. The provisions of this clause 7 shall not prevent either party from disclosing any information where it can demonstrate and document that such information:
(a) was in its possession (with full right to disclose) prior to receiving it from the other party; or
(b) is independently developed by that party, or received by it from a third party who was under no confidentiality obligation; or
(c) is or subsequently comes into the public domain other than by breach of this Contract.
7.4. The provisions of this clause 7 shall apply throughout the full term of this Contract and for ten years thereafter.
- DATA PROTECTION
8.1. We warrant to you that we will not process personal data that you provide to us or which is generated by the use of the Services (“your personal data”) other than to deliver the Services or to comply with your instructions. We will delete your personal data within 90 days of termination or expiry of this Contract.
8.2. We warrant that we will:
(a) having regard to the state of technological development and the cost of implementing any measures, take appropriate technical and organisational measures against the unauthorised or unlawful processing of your personal data and against the accidental loss or destruction of, or damage to, your personal data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the personal data to be protected;
(b) take reasonable steps to ensure compliance with those measures;
(c) not process your personal data outside the EEA.
8.3. You warrant that:
(a) you are not aware of any circumstances likely to give rise to breach of any of the Data Protection Legislation as a result of your use of the Services;
(b) you are entitled to use your personal data with the Services and such use will comply with all Data Protection Legislation;
(c) all data subjects of your personal data have given their valid consent to the transfer of their personal data by you to us and to the processing of their personal data by us so that we may provide the Services.
8.4. We warrant that we will delete the recording of any test call within a reasonable period, not to exceed one month after it was made, unless you choose to archive the recording through the use of the archiving service.
- LIMITATION OF LIABILITY
9.1. The following provisions set out our entire financial liability (including without limitation any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
(a) any breach of the Contract howsoever arising;
(b) any use made by you of the Services or any part of them; and
(c) any representation, statement or tortious act or omission made or committed in connection with the Contract.
9.2. All warranties, clauses and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3. Nothing in these clauses excludes our liability:
(a) for death or personal injury caused by our negligence; or
(b) for fraud or fraudulent misrepresentation.
9.4. Subject to clauses 9.2 and 9.3:
(a) we shall not in any circumstances be liable, whether in tort, contract, misrepresentation or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) damage to goodwill; or
(iv) loss of anticipated savings; or
(v) loss of opportunity; or
(vi) ex gratia payments paid out by you; or
(vii) bank charges payable by you; or
(viii) loss or corruption of data or information; or
(ix) incorrect results or information provided by the ETS Hosted service; or
(x) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) our total liability which may be incurred in each year of this Contract, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract between you and us, shall in no circumstances exceed 100% of the charges paid by you for the Services in the relevant year.
- TERM AND TERMINATION
10.1. Without prejudice to any other rights or remedies to which the parties may be entitled, if at any time a party:
(a) commits a material breach of its obligations under this Contract and (upon receiving written notification from the other of such breach) either the breach is incapable of remedy or it fails to remedy the breach within 30 days; or
(b) becomes insolvent, makes (other than for the purpose of an amalgamation or reconstruction while solvent) a general assignment for the benefit of, or enters into any arrangement with, our creditors, files a voluntary petition (other than for the purpose of an amalgamation or reconstruction while solvent) under any bankruptcy, insolvency, or similar law, or has proceedings under any such laws or proceedings seeking appointment of a receiver, trustee or liquidator instituted against it that are not discharged or stayed within 21 days;
then the other party shall immediately become entitled (without prejudice to our other rights) to terminate this Contract forthwith by notice in writing.
10.2. Upon termination or expiry of this Contract for whatever reason you shall, without prejudice to our other rights and remedies, pay to us the outstanding balance of charges due in respect of any Services provided under this Contract prior to the date of termination or expiry.
10.3. Termination or expiry of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or expiry or the continuation of any provision expressly stated to survive, or implicitly surviving, termination or expiry.
- FORCE MAJEURE
We shall not in any circumstances have any liability to you under the Contract if we are prevented from, or delayed in, performing our obligations under the Contract or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or that of any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
12.1. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
12.2. Unless specifically provided otherwise, rights arising under the Contract are cumulative.
13.1. If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
13.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- ENTIRE AGREEMENT
14.1. This Contract constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter. Each of the parties acknowledges and agrees that in entering into the Contract, it does not rely on any written or oral statement, representation, assurance or warranty (“Representation”) of any person other than as expressly set out in the Contract.
14.2. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be to damages as limited by the Contract.
14.3. Nothing in this clause shall limit or exclude any liability for fraud, including fraudulent misrepresentation.
15.1. You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract.
15.2. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract.
- NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
- THIRD PARTY RIGHTS
The Contract is made for the benefit of the parties to it and their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
18.1. Any notice under the Contract shall be in writing and shall be delivered by hand or sent by pre- paid first-class post or recorded delivery post to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in the Contract.
18.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received three business days after posting. A notice sent by fax shall be deemed to have been received at the time of transmission.
- GOVERNING LAW AND JURISDICTION
19.1. The Contract and any disputes or claims arising out of or in connection with it are governed by and construed in accordance with the law of England.
19.2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract. However, either party may enforce an obligation of confidence in the courts of any jurisdiction having competence to issue an injunction.