Terms & Conditions

IT Support & Maintenance 

1. Definitions in this agreement

“ITCS” shall mean ITCS (UK) LTD, of Sony UK Technology Centre, Pencoed Technology Park, Bridgend, South Wales CF35 5HZ.

“Customer” means the company, organisation, person or persons that enter into the agreement for the supply of Support services.

“Users” and or “End Users” means the individual(s) using the products and or services

“Account” means the confidential file where the details of the customer are held.

“Agreement” means a contract for the provision of ITCS’s Support Services signed by both parties (ITCS and the Customer). The agreement declares that the customer accepts ITCS’s Support & Maintenance Contract Terms and Conditions and agrees to the provision of services as outlined in the support schedule.

“Support Schedule” means the schedule to the Agreement listing the services, products, software and or applications covered under the agreement

“SLA” means the Service Level Agreement that dictates the Response Times provided by ITCS to the Customer for Incidents and the availability / regularity of services.

“System Audit” means an assessment of the customer system(s) by an ITCS consultant in order to gain the necessary understanding of the System for ITCS to be able to supply the required level of support.

“The Initial period” means the period set on the agreement form, this starts from the commencement of the Support Contract.

“Subsequent period(s)” means the subsequent period (s) thereafter unless terminated by not less than 90 days written notice to expire at the end of the relevant year.

“Continuity” means the contract is deemed as renewed unless cancellation is received in writing with not less than 90 days written notice prior to the annual renewal date, any variation on this cancellation notice is at ITCS’s discretion

“Distributor” means any supplier to ITCS (UK) LTD

“Vendor” and/or “third party software vendor” means the company who has designed or developed the hardware or software

“Equipment” means the equipment specified in the Support Schedule

“Roaming Computers/ Users” means a workstation, mobile communication device or user that is not permanently located at the Customer’s site when the workstation or mobile communications device in question is owned by the Customer and is part of the Customer’s domain.

“Server Instance” means a network, email or other server, whether physical or virtual.

“System” means the network, software, Server Instances, or any other item being maintained under the Agreement as defined in the support schedule of the Agreement

“Software” refers to the Software Products specified in the Support Schedule. “Software applies to all parts of software, to new releases, updates and modifications of the software.

“Support Hours” means 8:30am to 5:30pm Monday to Friday excluding public and national holidays. ITCS reserves the right to reduce these support hours during Christmas and New Year and will publish any change of hours prior to the period on the ITCS website at https://www.itcs.co.uk

“Our representative” means any employee, agent or subcontractor of ITCS (UK) LTD or other third party.

“Support Service” means any IT Support services as specified in the support schedule. Support may include both proactive and reactive actions to maintain the System’s accepted operational status. There will be times when Changes as opposed to Support are required to maintain the accepted operational status of the System. Such Changes may be deemed as being chargeable.

“Change(s)” mean a modification that is material or otherwise that alters the hardware or software configuration of the System defined in the Agreement.

“Remote support’ means any support given to you by us that is not given on site.

“On Site Support” means the provision of support services by ITCS at the customer site(s) as specified in the support schedule.

“Customer Site” means the Site or Sites specified in the Support Schedule at which the Customer operates the System defined in the Agreement.

2. Commencement of Support Service
   • Upon commencement of the Support Service Agreement a System Audit will be performed, ITCS may at its discretion require the system audit prior to commencement of the Support Service Agreement
   • The Customer accepts responsibility for the status of their System prior to the involvement of ITCS.
   • Any deficiencies found during the System Audit will be noted in the report produced and can be corrected or improved by ITCS for a fixed price.
   • The Customer is under no obligation to commission ITCS to resolve issues discovered during the System Audit.
   • If the Customer does not wish to adopt recommendations for improving aspects of the System or resolve deficiencies highlighted or if there are omissions in the information provided by the Customer during the system audit, ITCS retain the right to charge additional fees or impose reasonable limits on the Support provided for certain aspects of the System.
   • The fees for ITCS’s Support Service will be calculated based upon the number of sites, Server Instances and or workstations within the Customers IT System along with any other relevant factors or specific requirements the Customer may have. A quotation will be provided to the customer confirming costs for the support service
   • The Support Service Agreement will include the Support Schedule. This will be a list of the component parts of the support service and associated SLA’s.
   • Sign off of the Agreement by the Customer will be deemed as acceptance of the support schedule and therefore acceptance of what will be supported under the terms of the Agreement.
   • Support Schedules may require amending from time to time depending upon the Customer’s needs and Changes to the System. Any such amendments will be recorded and appended to the Agreement.
   • The Support Schedule may include Roaming Computers / Users (usually laptops or mobile communications devices) that are regularly away from the Customer’s Site. Such computers must be owned by the Customer and of a configuration that is consistent with the computers at the Customers Site. This configuration requires Roaming Computers to be within the Customer’s domain architecture and having appropriate Antivirus software installed.
   • The Customer will be required to provide confirmation of all Software Licensing applicable to the System either at the commencement of the Agreement or as required by ITCS during the Agreement.
   • Upon commencement the Customer hereby agrees that they will not, in any manner, directly or indirectly, Solicit any person who is an employee of ITCS or any of its subsidiaries (or was an employee of ITCS or any of its subsidiaries at any time during the twelve month period prior to any such solicitation) and resign from offering any position of employment. This is in breach of trade connections, customer and supplier information and protects the legitimate business interest of ITCS.

3. Requesting Support
   • All requests for Support from the Customer should be raised in one of three ways: via telephone on 08456 444 200, email to [email protected] , or by using our online support tracker tools.
   • The Customer must inform ITCS of any Incidents as soon as is practically possible. If there is a delay informing ITCS of obvious warning signs then the fault may grow and cause additional impact.
   • Upon receiving notification regarding an issue with the Customer’s System, the issue will be logged as an Incident with an allocated Incident reference number. The Incident reference number along with details of the Incident will be stated to the Caller.
   • In the event of the Customer wishing to query the progress of an Incident, the Customer must be able to state the specific Incident reference number to enable ITCS to identify the Incident in question.

4. Delivery of Support
   • Support will be delivered by ITCS to the Customer in accordance with the Support Schedule. The Support Schedule will be stated in the Support Service Agreement.
   • 2 ITCS retains the right to install 3rd party software on the Customer’s System to facilitate the remote connection and delivery of Support to the Customer. In accordance with this right:
     • If at any stage following the commencement of the Agreement the Customer refuses ITCS the right to install / use 3rd party software upon their System for the purposes stated in above clause, ITCS retains the right to revise any pricing previously agreed for the Agreement or to terminate the Agreement.
     • The ownership of 3rd party software installed upon the Customer’s System for the purpose stated above will remain vested in ITCS.
     • The Customer can request that ITCS demonstrate and explain what 3rd party software it intends to install on the Customer’s System and for what purpose it is intended.
   • Whilst working on Incidents, Consultants will keep a record of the time they spend and the actions taken. This information will be logged in the ITCS Support Application under the specific Incident reference number.
   • No guarantees or commitments will be given regarding the length of time required for resolving individual Incidents.
   • In providing Support, Consultants regularly refer to colleagues for help and advice with specific issues in order to resolve incidents as quickly as possible.
   • To ensure that Incidents are resolved as quickly as possible and to reduce the reliance on individual Consultants, ITCS retain the right to allocate Consultants to Incidents and actions within Incidents as they see fit, depending on the skills, experience and availability of Consultants.
   • The support schedule specified in the Agreement will determine the actual Response Times available under the following categories:
     • Remote Support – unlimited for all Customers with a support contract, all calls answered directly by an experienced consultant.
     • On Site Support (Response Times will vary depending on location of Customer Site) – unlimited for all Customers taking a support contract with onsite support.
   • ITCS retains the right to decide whether Support will be delivered remotely or on site at all times.
   • The Customer accepts that whilst ITCS may advise on software licensing matters the Customer will be legally liable for maintaining, acquiring and proving that appropriate licensing agreements for all software in use on their IT System exists. Consequently the Customer will be solely legally liable to pay any fees, fines or other costs associated with software licensing.
   • The customer will provide ITCS or its representative with unrestricted access to the system and will provide such further facilities and assistance as the representative may require carrying out the work. ITCS will not be liable for where its representative cannot provide support as a result of the Customer failing to provide such facilities or assistance.

5. Availability of Support
   • Standard Working Hours.
     • ITCS’s standard working Hours for the provision of remote Support services are 8:00 AM – 5.30 PM Monday to Friday (excluding public holidays) unless expressly stated otherwise in the Agreement.
     • ITCS’s standard working Hours for the provision of onsite Support services are 8.00 AM – 5.30 PM Monday to Friday (excluding public holidays) unless expressly stated otherwise in the Agreement (Including 1 hour for lunch).
     • Consultants will work on varying shift patterns within the hours stated above. This means that individual Consultants do not necessarily work from 9.00 AM to 5.30 PM on a daily basis.
   • Out of Hours Periods.
     • ITCS provide remote helpdesk Support during Out of Hours Periods which are the times beyond ITCS standard working hours by pre-agreement only.
     • On Site Support will NOT be available during Out of Hours Periods unless explicitly stated in the Customer’s Support Agreement.
   • The Customer is responsible for giving ITCS the authority to deal with 3rd party suppliers on behalf of the Customer. When such authority has not been provided, the Support that can be offered by ITCS may be limited.
   • The full breadth and depth of ITCS’s technical skills and expertise will not be available during Out of Hours Periods. Consequently there may be instances when the on duty Consultant reaches the boundary of their experience causing Support to be suspended until other technical members of staff are available.
   • When other technical expertise and experience is required in relation to an Incident logged during an Out of Hours Period there is no guarantee that this will be available before the start of the next normal working day
   • Planned maintenance (e.g. Server reboots) can be scheduled for Out of Hours Periods at no extra cost to customers with a support agreement.
   • ITCS cannot guarantee that the remote connection to the Customer’s System will always be available due to issues with the Customer’s System or other external factors beyond the control of ITCS (e.g. Internet Service Provider problems).
   • When Remote Support cannot resolve the Incident and On Site Support is required, the On Site visit will be arranged for the soonest available point in time during ITCS’s standard onsite Support Hours 08.00 AM – 5.30 PM Monday to Friday.
   • When an onsite visit is required, it will take place in accordance with the Response Times available within the Customer’s Support Agreement. Consequently there is no guarantee that an onsite Support visit will commence immediately at the start of the next standard hours period (9.00AM)
   • When a Customer has an Incident that is being worked upon during normal business hours that remains unresolved at 5.30PM Support will not continue in the Out of Hours Period by default.
   • The Customer can opt to pay for Support during Out of Hours Periods either by:
     • 12.1 Agreeing to a fixed fee as part of the overall contract cost in order to be able to log unlimited Out of Hours Support. The fixed fee will be stated in the Agreement.

OR

• Agreeing to pay for Out of Hours Support on a pay as you go basis at an agreed hourly rate stated in the Agreement.
• Minimum billing periods will apply when Support has been delivered for part thereof the billing period in question. (i.e. Up to 30 minutes of Support provision will result in a charge of 30 minutes of time. Between 30 and 60 minutes of Support will result in a charge of 1 hour of time etc…)
• When Out of Hours Support is requested on a pay as you go basis, the fees for Out of Hours Support will be invoiced in arrears as/when applicable as a separate line item in ITCS’s Support invoices.
• All Out of Hours Support Incidents logged will be subject to a minimum billing period of 30 minutes, followed by subsequent billing periods of 30 minutes.

• ITCS retains the right to revise the fees for Out of Hours Support from time to time and will notify Customers in advance in accordance with the guidelines stated in the Agreement from time to time.

6. Scheduled Maintenance
   • Where your support contract provides for, in addition to Telephone, Remote & onsite Support, ITCS will provide regular scheduled maintenance visits as set out in the support schedule.
   • During the maintenance visit a consultant will attend site for the provision of maintenance services which will include, but not limited to, checking successful operation of backup procedures, disk management and server updating/patching and other general servicing procedures.
   • Once the regular checks of the server(s) and systems have been completed any remaining time may be used for other IT associated purposes, i.e. installations or other work as requested by the customer.

7. Chargeable Services
   • A chargeable Change may be in the form of urgent repair work deemed as being within the scope of the Support contract in order to maintain the accepted operational status of the System. Alternatively a Change may be an enhancement for security, stability, scalability or functionality reasons that will not be covered within the scope of the Support Service Agreement unless undertaken at the discretion of ITCS as a proactive measure.
   • Requests from Customers for Changes to their System not deemed as being implicit within the on-going Support duties required under the scope of this Agreement will normally be chargeable as separate pieces of work. ITCS will however assess each request on a request by request basis. If a request can be completed via remote support within a 30minute period there will not normally be a charge, any work requiring longer involvement will be charged in billing periods of 30 minutes at the rate specified in the support agreement.
   • For separate pieces of work in the form of “consultancy” or “project work”, charges will be at the hourly rate as set out in the support agreement, unless a fixed price has been pre-agreed in the form of supporting quotes and proposals. The Customer will be required to confirm commencement of such work via sign off of a work sheet.
   • ITCS will always endeavour to seek the Customer’s approval for chargeable Changes in advance, however, ITCS retain the right to perform chargeable Changes that fall outside of the Agreement without prior sign off if deemed absolutely necessary for the continued operation of the Customer’s System.
   • ITCS retains the right to revise the fees charged for on-going Support under the Agreement following the implementation of Changes.
   • Any Changes performed by ITCS to the System will be Supported under the Agreement, once any warranty periods have expired, and pending agreement being reached on revised fees for on-going Support (if applicable).
   • The Customer retains overall responsibility for their System. Any Changes made to the System by the Customer or a 3rd party instructed by the Customer, may be approved in principle prior to being implemented. However, such changes will only be covered by the Agreement once approved by ITCS upon completion of the implementation.
   • For such Changes to be approved upon completion, ITCS must receive appropriate details from the Customer in a timely fashion in order to assess the impact they will have on the System and if they may cause the need for additional Support.
   • If accepted, with or without an increase to the fees charged via the Agreement, the Changes will be noted in Appendix 1 of the Support Service Agreement.
   • If Support is required for an unapproved System Change or another System, ITCS will endeavour to provide Support under the terms of the Agreement, however ITCS retains the right to refuse Support or impose additional charges as necessary.
   • If the Customer’s System grows in numbers of workstations or Server Instances by 25% over any given period, ITCS retain the right to instigate a System review.
   • The result of the System review may lead to the fees charged under the Agreement to be revised.

8. Exclusions/Excluded Work
   • Customers must accept that computers, software and their associated products can be supplied in an imperfect state or can develop faults over time and that ITCS’s role is to reduce the effects of such imperfections rather than to eliminate them.
   • ITCS retains the right to exclude 3rd party software from the scope of the Agreement.
   • When 3rd party software is included within the scope of the Agreement, Support will only be provided to users that have a reasonable level of competency and once the user has used help files and other resources available from the vendor.
   • ITCS do not commit to having experts available for all 3rd party software and therefore cannot guarantee being able to resolve all Incidents relating to 3rd party software logged and will not provide training under the terms of the Agreement.
   • When 3rd party information or services are provided ITCS can make no guarantees about quality or suitability.
   • ITCS cannot guarantee that any 3rd party software including but not limited to Anti Virus, security and firewall software, whether or not recommended by ITCS will keep computer(s) free of errors, viruses, worms, Trojans, email spam, spy ware, hacking or any other unauthorised access.
   • In certain circumstances when an issue exists with an aspect of the Customer’s System, ITCS may recommend a solution that will require a capital cost outlay by the Customer. Such costs will not be covered by the Agreement
   • If the Customer chooses not to adopt the solution recommended by ITCS and the issues continue, ITCS retains the right to refuse or limit Support in respect of the item / issue in question.
   • Alternatively a higher charge for continued Support for the item / issue may be introduced to reflect the additional effort that would not have been required if the recommendation were adopted.
   • ITCS will require Administrator-level access to the System at all times
   • ITCS cannot be held responsible for being unable to provide Remote Support due to a lack of remote access to the System, when the lack of remote access results from a problem with connectivity that is beyond ITCS’s control.
   • ITCS will respond to Incidents in accordance with the Support Schedule that is specified in the Agreement.
   • ITCS retains the right to decide the appropriate course of action for each Incident and will follow the necessary troubleshooting steps in order to diagnose and then rectify the Incident.
   • Depending upon the nature of the Incident, ITCS may have to impose a workaround to rectify the Incident as opposed to a fix. Any workaround may be temporary prior to a permanent solution being instigated or permanent if the Customer decides not to proceed with a permanent fix.
   • A workaround may be of a technical nature or may involve changing a manual business process performed by the Customer.
   • ITCS will always aim to return the affected area of the System to an acceptable operational state, however depending on the nature of the problem this may not be possible without Changes to the System being made as in accordance with the Changes as described in section 7.
   • ITCS retains the right to not install, configure or Support any software for which the Customer cannot provide / produce a valid license for.
   • Other services not included as standard within the scope of the Agreement include:
     • Procurement of new or replacement hardware, software of whatever nature.
     • Installation, physical removal or relocation of hardware and software.
     • Provision of Hardware warranty for repairs or replacement of equipment including but not limited to networked PC’s, servers, printers, photo copiers, fax and scanning machines (The Customer is responsible for keeping records of all 3rd party warranties and licences).
     • Provision of Anti Virus Software (ITCS will make recommendations but the Customer will remain responsible for purchasing the appropriate licence).
     • Technical or end user training on the Customer’s System or 3rd party applications.
     • Internet connections email and web hosting services and remote file storage services.
     • Work required as a result of operator error or any other improper use, care of or accident to the system, or any failure of or change in: electricity, air conditioning, humidity control or other environmental or operating conditions not recommended or approved by ITCS, or by the system manufacturer
     • Electrical or other work external to the equipment.
     • Work on any item of the equipment that has been moved, repaired or tampered with by any person other than one of ITCS representatives.

9. Complaints
   • In the event of a complaint in respect of ITCS’s IT Support Services in whole or part, the Customer shall notify ITCS as soon as possible.
   • When a Customer needs to raise a complaint, the complaint should be lodged with a senior account manager or director of ITCS either verbally or in writing. Alternatively the customer can email the complaint detail to [email protected].
   • In the event that the Customer is dissatisfied with the quality of performance of a Consultant, the Customer must inform ITCS immediately, stating the basis for dissatisfaction. If, in the view of ITCS, the situation merits it, ITCS will withdraw the Consultant immediately and will use its reasonable endeavours allocate another.

10. Invoicing and Payment
    • The Customer will be invoiced for ITCS’s IT Support Services in advance, and is payable from the date of acceptance of the agreement by both parties and will be subject to the following conditions:
      • For the initial period of the agreement the customer will not be required to pay any increased support charges. Subsequent period(s) may incur additional charges, and be increased at any time on or after the expiration of the initial period, subject to ITCS providing written notification no less than 30 days before such increase.
      • Upon the customer terminating the Support Service Agreement payments or arrears will be proportionate up to the date of termination.
    • The Customer must pay monthly in advance via Standing Order or BACS.
      • ITCS reserves the right to change the payment frequency to annually in advance, where a customer’s payment of monthly invoices is not made promptly by standing order or BACS for a period of 3 months.
    • If a payment from the Customer is not made for support charges or any part thereof, and remain unpaid for a period of 30 days, ITCS may without prejudice to other rights, put all support on hold. ITCS also reserves the right at this point to give notice in writing to the customer requesting payment within seven days, failure to pay within the seven day period may result in termination of the support services and ITCS’s obligations under the agreement.
    • For work performed on behalf of UK registered organisations all amounts invoiced will be subject to VAT payable at the then prevailing rate, The total support charges for the agreement will be detailed in the support schedule excluding VAT.

11. Warranty/Guarantees

All repairs carried out by ITCS or our representatives shall be guaranteed for a period of 30 days. This guarantee does not affect the Customers statutory rights.

12. Data security/Recovery

• • 12.1.  Data Encryption: We employ industry-standard encryption techniques to secure data during transfer, ensuring that it remains protected against unauthorized access or interception.

  • 12.2. Secure Transfer Protocols: Data transfers are conducted using secure protocols such as HTTPS, SFTP, or FTPS to safeguard against data breaches and ensure the integrity of transmitted information.

  • 12.3.  Data Access Controls: Access to transferred data is strictly controlled and limited to authorised personnel only, with robust authentication mechanisms in place to prevent unauthorized access.

  • 12.4. Data Minimisation: We transfer only the minimum necessary data required to fulfil the intended purpose, reducing the risk of exposure and ensuring compliance with data protection principles.

  • 12.5. Compliance with Regulations: Our data transfer practices comply with relevant data protection regulations, such as GDPR, ensuring that customer data is handled in accordance with legal requirements.

  • 12.6. Regular Security Audits and Reviews: We conduct regular security audits and reviews of our data transfer processes to identify and address any vulnerabilities or weaknesses, thereby continuously improving our data handling practices.

  • 12.7. Transparent Communication: We maintain transparent communication with our customers regarding our data transfer practices, providing them with clear and comprehensive information about how their data is handled and protected.

  • 12.8.  Incident Response Plan: In the event of a data breach or security incident, we have a comprehensive incident response plan in place to promptly address the issue, mitigate its impact, and notify affected customers in accordance with regulatory requirements.

  • 12.9. Continuous Improvement: We are committed to continuously improving our data transfer processes and security measures through regular training, risk assessments, and feedback mechanisms, ensuring we maintain the highest standards of data protection and customer trust.

  • 12.10. The Customer agrees to indemnify and hold harmless ITCS (UK) LTD, its officers, directors, employees, and agents from and against any claims, liabilities, damages, losses, costs, or expenses (including reasonable legal fees) arising out of or related to any data loss, breach, or compromise, including but not limited to, any claims brought by third parties, resulting from the Customer’s use of the services provided by ITCS (UK) LTD.

13. Termination of Agreement
    • The Customer can terminate the Agreement at any time with the provision of 90 days notice in writing following the expiration of the initial period.
    • If the Customer wishes support services to be ceased immediately or at any specific point during the 90 day notice period, the FULL charges for the 90 day notice period will remain applicable and payable in full by the Customer.
    • ITCS can terminate the Agreement or any aspect of it with immediate effect if the Customer becomes the subject of a receivership, winding up, administration or bankruptcy order (or a petition is presented in respect of any of these). Or, if it otherwise appears to ITCS that the Customer is insolvent and unable to pay its debts as they fall due.
    • ITCS shall be entitled to terminate the Agreement in the event that the Customer commits a material breach of the Agreement and fails to remedy the breach within 90 days of receipt of written notice from ITCS.
    • The customer shall be entitled to terminate the Agreement in the event that the ITCS commits a material breach of the Agreement and fails to remedy the breach within 90 days of receipt of written notice from the customer.
    • Any termination shall be without prejudice to ITCS’s other rights or to the Customers liability for amounts payable under the Agreement.
    • In the event of termination of the Agreement, ITCS retains the right to uninstall any 3rd party software from the Customer’s System that ITCS own the licence for or that ITCS have installed on behalf of a 3rd party who own the software licence.

14. Assignment

We may assign, subcontract or otherwise dispose of our obligations under the Agreement or any other agreement between the parties to any other party. Specifically, where we procure that a third party (such as the system manufacturer) provides a preventative maintenance routine, telephone, remote or on-site support or other services to the customer, the customer shall be bound by any additional terms which the third party may impose either on ITCS or the customer, and if there is any inconsistency between the terms of business of the third party of and the terms of the Support Services Agreement the terms of the third party terms shall prevail. The customer may not assign the Support Services Agreement without prior written consent by a director of ITCS. We reserve the right to assign and/or sub contract all or any part of the service but if we do this will not affect your rights under this agreement.

15. Confidentiality

Neither ITCS or any of our representatives or customers will, without the other’s written consent , disclose to any third party any information concerning the business or method of working of the other party which may be revealed to it during the period of the agreement or otherwise, except as required by law or to the extent that such information may become public knowledge or may be acquired or generated by either party independently from the other otherwise than by reason of a breach of this clause.

16. Limitation of liability
    • ITCS is not responsible for the loss of Customer data. ITCS is responsible for ensuring the backup software and related hardware (when applicable) is set up correctly, however, the Customer is ultimately responsible for ensuring the appropriate backups are completed and that tapes are taken off site or otherwise secured appropriately. It will be the Customers responsibility to change backup tapes.
    • The liability of ITCS for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the aggregate price paid for the services under the Agreement up to the date in question.
    • In no event shall ITCS, it’s partners or suppliers be liable for costs of substitute goods or services, nor will they be liable for loss of profits, loss of data or any indirect, special, incidental, consequential or punitive damages however caused, whether due to a breach of contract, negligence or otherwise unless such liability is determined by a Court of competent jurisdiction, without further recourse to appeal, that it was caused by gross negligence, wilful misconduct or fraudulent acts, by ITCS.

17. Force majeure
    • Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including but not limited to fires, terrorist activity, strikes (of its own or other employees), insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
    • If a default due to an Event of Force Majeure shall continue for more than twelve [12] weeks then the party not in default shall be entitled to terminate the Agreement. Neither party shall have any liability to the other in respect of the termination of the Agreement as a result of an event of Force Majeure.

18. Entire Agreement
    • The Support Services Agreement supersedes all prior Agreements made between ITCS and the Customer for the provision of Support services and constitutes the entire Agreement between the parties relating to ITCS’s IT Support Services.
    • The Agreement does not supersede the General Trading Terms and Conditions of ITCS for any other business activities that the parties are or have been engaged in or may be engaged in the future.
    • No addition to or modification of any provision of these Terms and Conditions shall be binding upon the parties, except as set out herein, unless made in writing and signed by a duly authorised representative of each of the parties.
    • If any term, clause or condition of these Terms and Conditions is in violation of any applicable law, statute or regulation, the term, clause or condition in question shall be deemed as being deleted without effect to the remainder of these Terms and Conditions.
      • These Terms and Conditions shall remain in full force as if the deleted term, clause or condition had not been included. ITCS and the Customer will negotiate, in good faith, alternative terms, clauses or conditions to those deleted that are mutually acceptable to both parties.
    • Headings are included for convenience only and shall not affect the interpretation of the Agreement.

19. Sole appointment

The customer shall not allow any person other than ITCS or one of its representatives to support the system(s).

20. Notice
    • Any notice given under the Agreement by the Customer to ITCS shall be provided in writing by post or fax as set out below:
    • Any notice given under the Agreement by ITCS to the Customer shall be provided to the Customer as set out herein and in accordance with the contact details for the Customer stated in the Agreement. The Customer may change its contact details from time to time if required, by the provision of notice to ITCS.

Website Hosting & Software Development

21. Terms and Conditions
    • Contract: The client’s approval for work to commence shall be deemed a contractual agreement between the client and ITCS. ITCS will carry out work only where an agreement is provided either by email, mail or fax. ITCS will carry out work only for clients who are 18 years of age or above. An ‘order’ is deemed to be a written or verbal contract between ITCS and the client; this includes telephone and email agreements.
    • Intellectual Property & Copyright: ITCS retains ownership of all intellectual property, including source code. Ownership of designs and images will be transferred to the client on payment of the final invoice. Any scripts, CGI applications, PHP scripts, or software (unless specifically agreed) in writing by ITCS remain the copyright of ITCS and may only be commercially reproduced or resold with the permission of ITCS.
    • Client’s Responsibilities with regard to Copyright: In situations where the client provides images, text, animations, layouts or any other content for their website/development they are legally responsible for ensuring that this material does not infringe any copyright. ITCS cannot take responsibility for any copyright infringements caused by materials submitted by the client. ITCS reserves the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material. ITCS will not be liable or become involved in any disputes between the website owner or managers and their clients and cannot be held responsible for any wrongdoing on the part of a website owner or manager. E.g. any disputes relating to content/images that have been provided to ITCS for inclusion on the website/development.
    • Conceptualising: Conceptualising is the process of producing website concepts for clients. Concepts can include site mock-ups, graphics and design proposals. The client agrees that (unless specifically agreed otherwise) only one concept will be provided by ITCS. In order to provide an appropriate website design, the client should therefore ensure that they have provided any colour scheme, artwork and design requirements beforehand. Note: Design concepts and associated graphics remain the property of ITCS unless otherwise agreed. Once development begins, amendments to the chosen concept will need a change request notification, and may be chargeable.
    • Stock Photography: Certain images provided by ITCS may have been purchased under license from stock image suppliers. These images are generally only licensed for use on a website. The license may not permit them to be used in publicity material. The website owner is legally responsible for ensuring that this does not happen. If the client wishes to use any such images from the website for other purposes they are required to contact ITCS for clarification. The client agrees to meet all third party costs arising from the purchase of stock photography as well as any administration fees relating to the procurement of images imposed by ITCS.
    • Database, Application and E-Commerce Development: ITCS cannot take responsibility for any losses incurred by the use of any software created for the client. Whilst every care is taken to ensure products are problem free and accurate, the ultimate responsibility lies with the client to ensure that all software is functioning correctly before and during use. Any scripts, applications or software (unless specifically agreed) written by ITCS remain the copyright of ITCS and may only be commercially reproduced or resold with the permission of ITCS. Where applications or sites are developed on servers not recommended by ITCS, the client is expected to provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed on servers not recommended by ITCS, it is the client’s responsibility to provide a suitable testing environment, which is identical to the final production environment. The client is expected to test fully any application or programming relating to a website developed by ITCS before it is made generally available for use. Where “bugs”, errors or other issues are found after the site/development is live, ITCS will endeavour (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief.
    • Web & Email Hosting: For sites and domains hosted by ITCS, no guarantees can be made as to the availability or interruption of this service. ITCS cannot accept liability for losses caused by the unavailability, malfunction or interruption of this service, or for loss of turnover, sales, revenue, profits or indirect, consequential or special loss. ITCS reserve the right to refuse to handle in any way, material, which may be deemed offensive, illegal or in any way controversial, and also to terminate the hosting service should the necessity arise. All standard hosting offered by ITCS is limited to 500mb of website space unless otherwise stated in the contract. Should a Client wish at any point to move Hosting away from ITCS or transfer a Domain name away from ITCS, a £60 admin charge per domain will be issued, which must be paid before the transfer takes place.
    • Registration Charges: All third party costs arising from the registration of a domain name shall be met by the client. ITCS reserve the right to retain Domain names if there are any sums outstanding or due by the client. ITCS agrees to transfer any domain names to the client immediately upon such request if all sums have been paid.
    • Search Engine Promotion: While ITCS will optimise the client’s site initially, making it search engine friendly, it is impossible to make any guarantees on ranking position. Without a separate agreement ITCS is not responsible for on-going web site promotion. The order in which websites are ranked in the natural search results is controlled by the search engines. Monthly SEO packages are advised to maintain high ranking sites.
    • Client Responsibility: The client agrees to make available as soon as is reasonably possible to ITCS, all materials for completing the site, to the agreed standard and within the set deadline. ITCS will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.
    • Travel Time and Travel Expenses: Travelling time to and from customer premises or other meeting places is not generally included in any quotations or estimates. ITCS reserves the right to make a charge for travelling time at the current hourly rate. Likewise ITCS reserve the right to charge for travelling expenses based on 40p per mile. (NOTE: There will be no charges for travelling time or expenses incurred during the quotation process, i.e. before approval for work to commence is received.)
    • Quotations: The price quoted to the client is for the work specifically agreed on the quotation only. Should the client decide that changes are required after work on the website has commenced such changes are to be agreed and any additional cost will likewise be agreed prior to the work being started. Unless otherwise agreed any quotation provided will be valid for 30 days from the date of issue.
    • Payment of Accounts: A deposit of 50% will be required from any new client before any development project is carried out unless agreed otherwise. Likewise, if a project is large or deemed to be of significant duration then interim payments may be required. ITCS will apply a 2.5% service charge payment on any payments received using a credit or debit card. If this is not acceptable to the client, we also accept BACS and Cheque as an alternative payment method. ITCS reserves the right not to launch a website until full payment has been received. Any outstanding accounts for work carried out by ITCS or its affiliates are required to be paid in full, no later than 30 days from the date of the invoice. ITCS reserves the right, in its sole discretion, to deactivate hosting services for clients with unsettled accounts. When this occurs an additional minimum charge of £60 + VAT will be required to have the site restored. Any unpaid balance due shall bear interest at the rate of 8% per annum above bank of England base rate. Any costs of collection, including Court costs and reasonable legal fees shall be added as principal amounts to such balance.
    • Refund Policy: After work has started, and the website development commences any fees paid are not refundable.
    • Cancellation: Should the client wish to cancel at any point during the project they shall remain liable for the work that has taken place and shall be invoiced accordingly. There are no exceptions to this, i.e. if the client decides they no longer want the site, as they have commissioned the work (whether a deposit has been paid or not) they are still obliged to pay for the work that has been done up to the point of cancellation.
    • Payment Methods: Unless otherwise agreed, payment is only accepted by direct bank transfer (BACS or CHAPS), cheque or bankers draft in UK Pounds Sterling. If a cheque is returned by the bank as unpaid for any reason, the client will be liable for an additional administration fee of £35 +VAT.
    • If after the initial contract period, the client wishes to transfer the domain a £60 administration charge per domain. This is payable before the transfer to cover administration and contact with third part companies.
    • Support: Websites will be handed over as a fully functioning, completed work as per client signoff. Unless it has been agreed beforehand ITCS is not responsible for support. Support can be provided upon request for an agreed fee; this is highly recommended on content management sites. Websites are offered as a single contract and no guarantee of the availability or compatibility (including rendering compatibility with future browsers or future versions of existing browsers) from ITCS is offered unless an on-going support package has been agreed.
    • Malicious Activity: Problems caused by malicious software, spyware, viruses and website hacking are a fact of life on today’s Internet. It is highly unlikely that these will affect the client’s website, and ITCS will endeavour to protect it from this as much as possible during its creation, but after the website is handed over ITCS cannot be held responsible for problems caused by illegal activity or the actions of others.
    • Compliance with Ecommerce, Accessibility or Other Regulations: ITCS develops websites in accordance with the client’s specifications. It is the client’s responsibility to ensure that the website and its content comply with current online trading laws and regulations. ITCS cannot accept responsibility for any failure to comply with laws and regulations related to accessibility, selling online or those related to a specific business or trade. Research can be undertaken on the client’s behalf upon request, but in any business where complex compliance issues may exist it is recommended that the client takes legal advice.
    • Design Credit: A link to ITCS will appear in either small type or by a small graphic at the bottom of the client’s website. If a graphic is used, it will be designed to fit in with the overall site design. This link will provide the client with a quality inbound and outbound link and aid with search engine ranking. ITCS reserve the right to reference the client site in other promotional and marketing material unless otherwise agreed.
    • Variation to Terms and Conditions – These terms and conditions may be amended by ITCS from time to time (but not for the avoidance of doubt by any customers). The latest version of these terms and conditions may be accessed via the Website Design Centre Website
    • Sign Off – The customer acknowledges that ITCS will not be responsible for updating the website past the completion and sign-off of the website. Any further amends after this will be billable. The customer also acknowledges that they will accept or revert with review comments on all project deliverables within 2 business days of submission of the same. Delay in review or acceptance of deliverables would warrant delay in project schedule.
    • Termination – Termination of services by the Client must be requested in a written notice and will be effective on receipt of such notice. Telephone requests for termination of services cannot be honoured until we have confirmed in writing by post or email. The Client will be invoiced for design work completed to the date of first notice of cancellation for payment in full within thirty (30) days.
    • Severance – If any of these Terms and Conditions should be determined to be invalid, illegal or unenforceable then such Term or Condition will be severed and the remaining Terms and Conditions will remain in force.
    • Law – These terms and conditions and all other express terms of the contract with customers shall be governed and construed in accordance with UK law. UK Courts shall have jurisdiction in relation to any matters arising in connection with any contract between ITCS and the customer into which these terms are incorporated.
    • The above-named client is engaging ITCS, as an independent web developer contractor. The client hereby authorizes ITCS to access hosting and domain accounts, and authorizes the web hosting service to provide ITCS with “write permission” for the client’s webpage directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project. The client also authorizes ITCS to publicise their completed website to Web search engines, as well as other Web directories and indexes for SEO purposes.
    • Standard Website Package Elements. (For Standard Website Packages Only, please ignore reference to online stores.) ITCS includes the following elements in their Standard Website Packages:
    • Website Support & Maintenance Services (Only covered by web support package)

• E-mail/phone consultation (Up to 1 hours per month general on education, marketing strategy, web design consultation, and helping clients learn to use their webpage editor. Additional education and consultation is at our hourly rate.)
• Website Updates / Changes (Up to 1 hour per month on changes to text or images will be covered as part of the support package.) Minor updates and changes to existing web pages are covered, subject to the limits outlined below. Additional changes billed at hourly rate. For online stores, this includes only “regular” pages, not product pages or the ordering system pages.
• Website Hosting (All future hosting fees will be covered by the support package, management and support of the hosting will also be covered by ITCS as part of the package.)
• Domain Name Renewal (This will be paid for by ITCS for every two year support contract that is in place, ITCS will ensure the name does not laps or get obtain by a competitor. This is subject to all invoices being clear on the account)
• Email Account Management (Up to five email accounts is provided under the standard hosting package, full support and configuration of these accounts is provided by ITCS, additional accounts can be made available with a premium hosting account.)
• Content Management System (Unlimited access via web admin interface. This allows the user the ability to change images and text).
• Monthly Traffic Reports (These will give you details about the number of page impressions, unique visitors, bounce rate, time spent on site and most visited pages. These will be emailed on the first of every month)
• Website refresh every two years (It is the clients responsibility to make contact with ITCS about having their website refreshed. A refresh consists of a graphical redesign and SEO update with existing functionality).
• Initial upload of content (We will populate the content on the site from electronic documents or emails provided by the client. Once the initial upload is complete and the site is live this is then the responsibility of the client, with support from ITCS).
  • Website Development Project
• Words of text to be supplied by the client (250 words per page approximate. To be supplied electronically. Web pages of more than 1,200 words of text may be subject to additional fees.)
• Links to external pages, up to an average of 2.5 per page.
• Custom Graphics Package. These can be provided by the client or suggested by ITCS, if stock photographs are required; these may incur a small additional price, and will be added to the final invoice. All other graphics (simple custom graphic incorporating company logo) will flow through the site if required. Line breaks and bullets, coloured text and background will be in keeping with the agreed colour scheme.
• Installation of web pages on the client’s web hosting service.
• Site promotion to at least a 10 major Web search engines, such as Google, Yahoo, Bing, AltaVista, InfoSeek, WebCrawler, Lycos, HotBot, etc.
• Feedback or Contact form.
• Email Account Management (Up to ten email accounts is provided under the standard hosting package, full support and configuration of these accounts is provided by ITCS, additional accounts can be made available with a premium hosting account.)
• Content Management System (Gold & Platinum packages) unlimited access via web admin interface. This allows the user the ability to change images and text.
• Standard Website Packages only. (Not applicable for e-commerce online stores.) – The content of the web pages will be supplied by the client and executed as specified. In the case where the client desires additional standard web pages beyond the original number of pages specified, the client will be notified that there is a fee of £25 for each additional webpage. Graphics or photos beyond the allowed average of 1.3 per webpage may be subject to further charges billed at an additional £2.50 each. Where custom graphic work (beyond the scope of the “Custom Graphics Package” detailed above) is requested, it will be billed at the hourly rate specified below. The store size and additional services, and prices of each are detailed on the attached estimate. (No additional charges will be added without prior approval from the client)
• Online stores only. (Not applicable for Standard Website Packages – The text and graphic content of the web pages will be supplied by the client and executed as specified by the client in the “Webpage Planning Worksheet”. This website will be developed in line with the package identified from the Website Planning Worksheet. It is understood that total prices calculated below are likely to vary from the final amount due to different quantities of products, categories, photos, regular pages, etc. in the final store. An estimate from ITCS will provided by means of an order form and governs the prices for this contract. Notwithstanding any prices listed in literature or on web pages, the client and ITCS agree that the services described above in this section shall be completed in line with the “Webpage Planning Worksheet” and above “Order Form”. The first payment will be based on the original order price. The final payment shall reflect and include all elements actually completed at the prices attached.
• We include e-mail/phone consultation of up to 3 hours total orientation education, marketing strategy, and helping clients learn to use the software. (Additional education and consultation is at our hourly rate.)
  • Maintenance and Hourly Rate. This agreement includes minor webpage maintenance to regular web pages (not store product pages), including updating links and making minor changes to a sentence or paragraph. It does not including removing or updating entire pages of text or replacing it with new text. If the client or an agent other than ITCS attempts updating the client’s pages, time to repair webpages will be assessed at the hourly rate, and is not included as part of the updating time.
  • Changes requested by the client beyond those limits may be subject to an hourly rate of £35. This rate shall also govern additional work authorized beyond the maximums specified above for such services as general Internet orientation education, marketing consulting, webpage design, editing, modifying product pages and databases in an online store, and art, photo, graphics services, and helping clients learn how to use their own webpage editor. (No additional charges will be added without prior approval from the client)
  • Web Hosting. The client understands that any web hosting services requires a separate contract with between a web hosting service and ITCS. The client agrees that ITCS will control this hosting service which allows ITCS full access to the website and a cgi-bin directory via FTP and telnet.
  • Completion Date. ITCS and the client must work together to complete the website in a timely manner. We agree to work expeditiously to complete the website no later than one month after receipt of all content.
  • Assignment of Project. ITCS reserves the right to assign subcontractors to this project to insure the right fit for the job as well as on-time completion.
  • Copyrights and Trademarks. The client represents to ITCS and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to ITCS for inclusion in webpages are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend ITCS and its subcontractors from any claim or suit arising from the use of such elements furnished by the client.
  • Laws Affecting Electronic Commerce. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend ITCS and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the client’s exercise of Internet electronic commerce.
  • Copyright to Webpages. Copyright to the finished assembled work of webpages produced by ITCS is owned by ITCS. Upon final payment of this contract, the client is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the client, and remain the property of their respective owners. ITCS (UK) LTD retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios.

22. Liquidated Damages For Direct Hiring of ITCS Employees:
    • If, during the term of this Agreement or for a period of twelve months thereafter, you as a Client directly or indirectly retains the services (whether as an employee, independent contractor or otherwise) of any employee of ITCS (or an ex-employee within twelve months of the employee’s termination from ITCS) who has provided services to you the Client on behalf of ITCS. Then you agree that ITCS will be damaged, given that the amount of this damage will be difficult to determine you agree to a fixed price. Accordingly, you the Client agree that for each such ITCS employee hired, Client will pay ITCS the annual salary of the employee set at the rate of them leaving ITCS. This amount is agreed as liquidated damages for the loss of an engineer.

23. Governing Law

The Agreement shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.

STRUCTURE OF THE AGREEMENT

The sections of the Agreement that will apply to the Customer will depend on what the Customer has ordered from Company as follows:

• The Commercial Schedule (provided separately) will always apply;

• The General Conditions for Customers will always apply;

• The Mobile Equipment Terms will apply if the Customer has ordered Mobile Equipment directly from Company (and not through one of Company’s dealers). If the Customer has ordered mobile equipment through one of Company’s dealers the Mobile Equipment Terms will not apply, but the Company dealers may have supplied the Customer with their own terms applying to the mobile equipment the Customer has purchased;

• The Mobile Terms will apply if the Customer has ordered any of the Mobile Services, together with such Service Schedules relating to the particular Mobile Service(s) the Customer has ordered;

• The VOIP Terms will apply if the Customer has ordered any of the VOIP Services;

• The Broadband Terms will apply if the Customer has ordered any of the Broadband Services;

GENERAL CONDITIONS FOR BUSINESS CUSTOMERS

1. DEFINITIONS AND INTERPRETATION In these General Conditions, the following terms and expressions shall have the following meanings unless the context otherwise requires:

TERM/EXPRESSION MEANING

Affiliate means, in relation to either party, any company which is a subsidiary or holding company (including the ultimate holding company) of that party and any company which is a subsidiary of such holding company (the terms subsidiary and holding company having the meanings set out in Section 1159 of the Companies Act 2006);

Agreement means the agreement between: the Customer and Company, as detailed in clause 28 of these General Conditions;

Initial period Also referred to as minimum term: means the period set on the agreement form, this starts from the commencement of the Service where the minimum number of months a particular Service must be in operation for. (If not there is no Initial Term set in the agreement then the initial term it is agreed that the initial period shall be 24 months from the Service Commencement Date, during which, if the Service is terminated then Termination Fees may be payable;

Subsequent period(s) means the subsequent period matching the initial period, running from term to term unless terminated by not less than 90 days written notice to before the end of the current period.

Broadband Services means those broadband services more specifically set out in the Broadband Terms;

Charges means the monies payable by the Customer to Company under the Agreement;

Commencement Date means the date of the Agreement unless otherwise specified in the Commercial Schedule;

Commercial Schedule means the commercial schedule document being part of the Agreement;

Company means ITCS (UK) Ltd.; Registered Office: Sony Technology Centre, Pencoed Technology Park, Bridgend, CF35 5HZ. Company no. 5251472.

Company Employee means any employee or other staff of Company or a Company Affiliate or any direct or indirect sub-contractor of Company or a Company Affiliate who provides the Services on behalf of Company;

Company Price List means the notes, descriptions and definitions of, criteria for use of, and the list of prices and tariffs which are charged to customers for Services which may be amended by Company from time to time. The Company Price List is available at the Company Web Site;

Company Web Site means the Company web site at www.itcs.co.uk

Customer Service Charter means Company’s standard customer service charter as amended by Company from time to time and which is non-binding;

Discount means the amount at which any of the Services are provided by Company to the Customer at less than the full rate. The amount of such discount having been supplied in writing to the Customer and/or inserted on the Commercial Schedule prior to any of the Services commencing as Discount Services;

Discount Services means any Services provided by Company to the Customer from time to time and not charged for by Company from time to time or charged at a discount;

Employee Liability Information shall have the meaning ascribed to it in the TUPE Regulations, as amended from time to time;

End User Licensed Software means any software, the licence terms of which are governed by a separate agreement with the licensor of such software, typically by means of a click wrap or shrink wrap licence agreement;

General Conditions means this document entitled General Conditions for Business Customers;

Hardware means the equipment described in the Commercial Schedule

Incentive Device means any hardware/software item provided as part of the deal, to be returned at the end of the contract. Incentive devices will be paid in full if full contract term is met, or the device is damaged a the end of contract, reasonable wear and tear excepted;

Internet means the global data network comprising interconnected networks using the TCP/IP protocol suite;

Line Rental Charge means the monthly non-usage dependent part of the Charges for the Services, as specified in the Commercial Schedule;

Minimum Holding means the minimum number of instances of a Service (e.g. SIM cards, or landlines) which must remain connected to a particular Service as specified in the Commercial Schedule (if any);

Minimum Holding Period means the number of months from the date a particular Service is first provided to the Customer within which the Customer is required to connect the Minimum Holding(s), as specified in the Commercial Schedule (if any);

Minimum Revenue Commitment means a commitment to spend the amount set out in the Commercial Schedule, or otherwise notified in writing by Company to the Customer, on call charges and/or monthly subscription charges on each voice connection per month for the Initial or Subsequent Period(s) (as applicable) for the relevant Service;

Replacement Services means all or part of the Services or services substantially similar to all or part of the Services which are provided by an entity other than a Services Provider following the termination of the Agreement (or the relevant part of the Agreement) or the termination of any or all of the Services;

Service Transfer means the provision of a Service (or any part of a Service) pursuant to the Agreement;

Service Commencement Date in respect of each Service means the date the Customer first starts to receive the relevant Services;

Service(s) means the service(s) identified in the Commercial Schedule as such service(s) are described in the Terms and/or Service Schedules as applicable and any other services agreed by the parties from time to time including without limitation any individual connections or any products ordered from time to time;

Services Provider means Company or a Company Affiliate or any direct or indirect supplier of Company or a Company Affiliate;

Service Schedule means the document entitled “Service Schedule” containing additional terms relating to a particular Service which schedule shall form part of the Agreement;

Software means any software, excluding End User Licensed Software, supplied to the Customer by Company under the Agreement;

Successor Supplier means any entity (including the Customer where relevant) which provides the Replacement Services;

Target Delivery Date in respect of a Service means the date for the commencement of the provision of the relevant Service as specified by Company;

Termination Fee shall have the meaning set out in clause 14.14;

Terms means a document entitled “Terms” containing additional terms relating to particular Services or equipment which shall form part of the Agreement;

Third Party means a person other than Company or the Customer; TUPE Regulations means the Transfer of Undertakings (Protection of Employment) Regulations 2006, (as amended, re-enacted or extended from time to time);

User means anyone who is permitted by the Customer to use the Service;

Working Day means Monday to Friday (excluding UK bank and public holidays).

1.1. The headings in the Agreement are for ease of reference only and shall not affect its construction.

1.2. References in the Agreement to any statute or statutory instrument shall include any re-enactment, modifications or amendments thereto for the time being in force.

1.3. References to clauses, sub-clauses, paragraphs, Terms and Service Schedules refer, unless otherwise stated, to clauses and sub-clauses of, and schedules to, the Agreement, and paragraphs to the Service Schedules.

1.4. Unless the context otherwise requires, the singular shall include the plural and vice versa.

1.5. Any obligation (including an obligation to “procure” or “ensure”) assumed by an obligor under the Agreement takes effect as a primary obligation.

1.6. References in the Agreement to a Service shall include any instance of such Service as applicable (for example, reference to a mobile Service shall include both all mobile Services provided to the Customer and/or each individual mobile, as the context requires).

2. COMMENCEMENT AND TERM

2.0. The Agreement shall commence on the Commencement Date and shall continue for the Initial Period and thereafter Subsequent Period(s) running from term to term unless terminated by not less than 90 days written notice to before the end of the current period:

2.1. if the Customer is a consumer or employs less than 10 employees (a “Specified Customer”) and the Services to be provide by Company are

(i) fixed line telephone service and

(ii) fixed broadband services (each a “Fixed Service”) then the Agreement in relation to such Fixed Service only shall automatically terminate at the end of the Initial Period and the parties shall be entitled to enter into a new Contract in relation to such Fixed Services; or

2.2. if the Customer is not a Specified Customer or the Service to be provided by Company under the Agreement is not a Fixed Service then the Agreement in relation to such Services (other than Fixed Services) shall subject to clause 14.0 automatically renew for a subsequent term, equal to that of ht e initial term.

3. SUPPLY OF SERVICES

3.0. In consideration of the Customer paying the Charges and fulfilling all of its commitments as set out in the Agreement, Company shall supply the Services in accordance with the terms of the Agreement.

3.1. Company shall commence supplying a Service on the relevant Service Commencement Date and shall supply those Services for the Initial Period and Subsequent Period(s) and thereafter until terminated by either party in accordance with the provisions of the Agreement.

4. SERVICE STANDARDS

4.0. Company will supply the Services with the reasonable skill and care of a competent telecommunications service provider.

4.1. Company does not guarantee that the Services will be continuously available and/or fault-free. The Customer acknowledges that faults may occur from time to time.

4.2. Company will endeavour to provide the Services subject to technical and commercial feasibility.

4.3. Company shall be entitled to change the way it provides a Service, provided that any change to the way it provides such Service does not have a materially detrimental effect on the Customer.

4.4. Company shall use reasonable endeavours to provide the Services within any time periods and/or by any date indicated to the Customer, but all time periods and dates (including the Target Delivery Date) are estimates and Company shall have no liability for any failure to meet any date or perform any of its obligations within the time period indicated.

5. THE CHARGES

5.0. The Customer shall pay the Charges by Direct Debit for:

(a) each Service (whether or not the Service is used by the Customer);

(b) where applicable, the Mobile Equipment and/or Hardware; and

(c) any other products or services agreed between the parties from time to time, in accordance with this clause 5. Where the Customer does not pay the Charges

5.1. by Direct Debit then Company may add a surcharge for any payment by Credit Card. The Customer acknowledges that the Charges have been agreed on the basis that they will be paid by Direct Debit. Where the Customer fails to set up any such Direct Debit then Company may add to its Charges a monthly amount for its administration expenses.

5.2. The Charges are as set out in the Commercial Schedule, or:

(a) as detailed in the Company Price List at the time the Mobile Equipment, Hardware, Service or other agreed product or service was supplied; or

(b) as notified to the Customer by Company in writing.

5.3. Where relevant Charges shall be based upon call and billing data recorded by or on behalf of Company.

5.4. The Charges are exclusive of value added tax which will be charged at the prevailing rate.

5.5. Unless otherwise stated in the Commercial Schedule or the Company Price List:

(a) call prices are quoted by the minute;

(b) the duration of each call shall be measured in whole seconds, any part thereof will be rounded up to the next whole second;

(c) each call shall be charged excluding VAT, based on the duration, the ex VAT cost of each call is then calculated and the result rounded up to the nearest penny. VAT is then added where applicable to the total of all charges on the Customer’s invoice;

(d) peak rate call Charges apply from 07:00 to 19:00, Monday to Friday;

(e) weekend rate call Charges apply from midnight on Friday to midnight on Sunday;

(f) off peak rate call Charges apply at all times when peak rate or weekend rate call Charges do not apply; and

(g) all calls are subject to a minimum Charge.

5.6. The Customer will be liable for any Charges incurred as a result of unauthorised use of the Services whatsoever and howsoever and whether fraudulently, through misuse or otherwise.

5.7. The Customer may be liable for a Termination Fee.

5.8. If applicable, where the Customer fails to meet the Minimum Revenue Commitment, Company will apply a charge equal to the difference between the actual spend by the Customer and the Minimum Revenue Commitment on a monthly basis in arrears.

6. INVOICING AND PAYMENT

6.0. Unless otherwise agreed with the Customer, Company may issue to the Customer on a monthly basis one or more invoice(s) which shall set out the Charges due in accordance with the Agreement.

6.1. Unless otherwise stated in the Commercial Schedule, the Customer shall pay: (a) in advance for subscription, rental and other recurring Charges (including inclusive usage Charges); and

(b) in arrears for usage (excluding inclusive usage Charges), connection and other non-recurring Charges.

6.2. If the parties agree that payments of the Charges to Company are to be made by credit card and if payments of such Charges are not made on the due date, Company is authorised to debit the Customer’s nominated credit card company with all Charges due and payable to Company.

6.3. The Customer shall pay each invoice issued by Company under the Agreement (including any invoice relating to Termination Fees) within 14 days of the date of invoice.

6.4. The Customer shall pay the Charges (including any Termination Fees) in full without any deduction or set off. Late payment

6.5. Without prejudice to any other rights of Company, in the event of the Customer failing to pay any sums due to Company on time or at all, notwithstanding notification by Company of the overdue debt to the Customer, Company shall be entitled to:

(a) charge interest (both before and after any judgment) on amounts overdue from the Customer under the Agreement from the due date until the payment is actually made at the rate of 8% per annum over the base rate of Barclays Bank plc for the time being during the relevant period; and

(b) suspend the provision of the relevant Service(s) until such time as all payments due including all interest accrued has been paid and satisfied in full. Credit security

6.6. Company reserves the right to set a credit limit on the Charges that can be accrued under the Agreement and Company can review any such credit limit at any time.

6.7. Company may require from the Customer a deposit as security for payment of Charges. The Customer may request the return of any deposit paid at the expiry of each 12 month period after the deposit was taken but the decision to return any deposit prior to termination of the Agreement will be at the discretion of Company. Company reserves the right to set off any deposit against the Charges.

7. NEW SERVICES

New services on the terms of the Company Price List

7.0. The Customer may request new services on the terms set out in the Company Price List by placing a new service order under the Agreement. Company shall be entitled to accept or reject a new service order. Once a new service order is accepted by Company:

(a) the new Service shall be deemed added to the Agreement (including for the avoidance of doubt, the terms of the Company Price List applicable to the Service as well the applicable Service Schedules where applicable); and

(b) Company shall supply to the Customer the Services requested in that new service order on the terms and conditions of the Agreement and any alternative terms appearing on or referred to in any other communication, (whether oral, in writing or by electronic means) by the Customer for the purpose of placing orders shall be ineffective. New services on bespoke terms

7.1. The Customer may request a new service at any time on terms other than those set out on the Company Price List. In the event that Company and the Customer agree the terms that would apply to such new services, those terms will be added to the Agreement by execution of a formal variation in writing to the Agreement.

8. MOVES, ADDS AND CHANGES

8.0. Subject to any specific procedures otherwise set out in the Agreement, the Customer may request a change to the Services by submitting a request in writing, including, but not limited to the following types of changes:

(a) additional instances of a Service (e.g. additional landlines);

(b) the termination of certain instances of a Service (e.g. disconnection of a mobile);

(c) a change from one Service specification to another Service specification; or

(d) a change to the location or site where a Service is supplied. The change request shall contain sufficient information to enable Company to submit a response.

8.1. Company shall supply to the Customer a written response confirming whether or not Company would be prepared to accept the changes and may specify in such notice:

8.2. any additional Charges that would result from the change (e.g. Termination Fees in the case of termination of an instance of a Service) and/or any changes to existing Charges;

(a) any Customer dependencies relating to the change; and

(b) the timescales for the delivery of the change which shall, unless otherwise stated in Company’s written response run from the date on which the Customer notifies Company that it wishes to proceed with the change.

8.3. The Customer shall notify Company in writing within 14 days of the date that it receives Company’s response whether or not it would like to proceed with the change.

9. OTHER CUSTOMER OBLIGATIONS

9.0. The Customer shall and shall procure that Users (or anyone having access to the Services), shall:

(a) comply with any instructions from Company relating to the use of the Services;

(b) not use the Services in a manner which is inconsistent with a reasonable customer’s good faith use of the Services or the Network;

(c) not use the Services in a manner which, in Company’s opinion, will (or is likely to) adversely affect the provision of the Services to the Customer, Company’s or other customers or users of the Network;

(d) not use the Services fraudulently or in connection with a criminal offence;

(e) not make nuisance calls;

(f) not use the Services to send, knowingly receive, store or communicate any material which is unlawful, offensive, abusive, indecent, defamatory, obscene or menacing, a nuisance or a hoax;

(g) not use the Services in a way that contravenes any licence, code of practice, instructions or guidelines by a relevant regulatory authority;

(h) not use the Services in a way that is in contravention of a Third Party’s rights (including but not limited to intellectual property rights);

(i) not use the Services to spam or to send unsolicited advertising or promotional material;

(j) not use the Services in any way which causes annoyance, inconvenience or needless anxiety as set out in the Communications Act 2003;

(k) not use the Services in a manner which may damage the reputation of Company and/or 02, the reputation of the Services or otherwise bring Company and/or 02 into disrepute;

(l) not use the Services for the processing of automated personal data as defined in the Data Protection Act 1998;

(m) hold and will continue to hold any licences, consents and/or notifications required under any applicable legislation, regulation and/or administrative order to receive and use the Services and/or to connect to the Network;

(n) notify Company of any methods of doing business which may affect the Customer’s use of the Services or the Customer’s ability to comply with the terms of the Agreement;

(o) comply with Company’s reasonable instructions relating to health, safety, security and use of the Network;

(p) comply with all applicable laws and regulatory provisions;

(q) comply with any applicable fair use policy that Company may issue from time to time; and

(r) not damage Company or the Network through the introduction of any Virus.

9.1. Subject to clause 11 of these General Conditions, the Customer agrees that it is procuring the Services solely for its own use and that it will not re-sell or otherwise act as any form of distributor in respect of the Services.

9.2. The Customer shall provide Company with any and all information and/or assistance that Company may require in order to perform the Services. The Customer shall ensure the information is complete and accurate. Company shall not be responsible for any failure and/or delay to provide the Services if such failure and/or delay is a result of the Customer’s failure to provide Company with the required information and/or assistance. The Customer shall reimburse Company for any administrative charges that it incurs as a result of information that it receives in accordance with this clause 9.2 that is incomplete or inaccurate.

9.3. The Customer shall notify Company immediately (and confirm in writing) on becoming aware that any person is making improper or illegal use of the Services. The Customer shall indemnify Company fully against all losses, liabilities, costs (including without limitation legal costs) and expenses which Company may suffer or incur as a result of any fraud, illegal or improper use (with or without Customer’s authorisation) of the Services.

9.4. The Customer agrees and acknowledges that Company, and/or a supplier of Company or any other provider may monitor and record:

(a) calls to 999 and 112 services; and

(b) calls or other communications relating to Company’s customer services and telemarketing.

9.5. The Customer acknowledges that some of the Services enable access to the Internet and that use of the Internet is solely at the Customer’s risk and subject to all applicable laws. Company has no responsibility for any information, software, services, goods or other materials obtained by the Customer using the Internet.

9.6. The Customer warrants to Company that it will take all reasonable steps (including testing with the latest commercially available virus detection software) to ensure that any software used with or in connection with the Services that is not provided by Company under the Agreement is not infected by viruses and/or logic bombs, worms, Trojan horses and any other types of disruptive, destructive or nuisance programs.

10. NUMBERS AND CODES

10.0. Company may allocate the Customer numbers, IP addresses and other codes in accordance with the Terms and Service Schedules.

10.1. Nothing in the Agreement shall be construed as to transfer from Company to the Customer ownership of any numbers, IP addresses or other codes or to grant the Customer the right to sell or dispose of a number, IP address or other code. All the Customer’s rights to use such IP addresses or other codes will cease upon termination of the Agreement or the relevant Service.

10.2. The Customer acknowledges that Company may change the numbers, IP addresses or other codes it has allocated to the Customer. Company shall (where reasonably practicable) provide the Customer with reasonable notice of such a change.

10.3. The Customer will comply with any and all instructions for use of any number, IP address or other code issued by the Third Party provider of that number, IP address or other code. Company shall (where reasonably practicable) provide the Customer with reasonable notice of such instructions.

11. CUSTOMER AFFILIATES

11.0. Company acknowledges that the Customer may permit a Customer Affiliate to use the Services supplied by Company to the Customer under the Agreement. The Customer will procure that its Affiliates are aware of and comply with the terms of the Agreement. The Customer shall be liable to Company for any and all:

11.0.1. claims, losses and expenses suffered or incurred by Company as a result of a breach of a term of the Agreement resulting from a Customer Affiliate’s use of the Services; and

11.0.2. losses, costs and expenses resulting from any claims against Company made by any of the Customer’s Affiliates (or any other Third Party whom the Customer has permitted to use a Service or related equipment) to the extent that such claims exceed the financial caps and other limitations on liability as set out in the Agreement. The foregoing liabilities shall remain in full force and effect notwithstanding any termination of the Agreement.

12. VARIATIONS TO THE AGREEMENT

12.0. Company reserves the right from time to time to vary the Agreement as follows:

12.0.1. Company shall be entitled to vary the Customer Service Charter and/or the Company Price List (including the prices and tariffs set out in the Company Price List). Such variations shall be published at http://www.itcs.co.uk/terms at least 28 days before such changes come into effect or, where the variation arises due to changes imposed by Third Party manufacturers, Third Party suppliers or a regulatory body, as much notice as is reasonably practicable; and

12.0.2. Company shall be entitled to vary the provisions of the Agreement (including for the avoidance of doubt, the Commercial Schedule). Company will provide to the Customer 28 days notice in writing of any such variation or, where the variation arises due to changes imposed by Third Party manufacturers, Third Party suppliers or a regulatory body, as much notice as is reasonably practicable.

13. SUSPENSION

Maintenance and emergencies

13.0. Company may, from time to time and without notice, suspend the Services in any of the following circumstances:

(a) during any technical failure, modification or maintenance of the telecommunications systems by which the Services are provided; or

(b) because of an emergency or upon instruction by emergency services or any government or appropriate authority or for the Customer’s or Users” own security.

13.1. Company shall endeavour to restore the Services suspended in accordance with clause 13.0 of these General Conditions as soon as reasonably practicable.

13.2. The Customer shall remain liable for all Charges levied in accordance with the Agreement during any period of suspension arising from the circumstances described in clause 13.0 of these General Conditions. Actions of the Customer and/or fraud

13.3. Company may, without prejudice to its other rights hereunder, suspend or disconnect the Services without notice in any of the following circumstances:

(a) if the Customer fails to comply with the terms of the Agreement after being given written notice of its failure (including but not limited to failure to pay any Charges due hereunder); or

(b) if the Customer allows anything to be done which in Company’s reasonable opinion may have the effect of jeopardising the operation of the Network or the Services, or if the Services are being used in a manner prejudicial to the interests of Company, and/or a supplier of Company; or

13.4. if Company has reasonable cause to suspect fraudulent use of the Services (whether by the Customer or any third party).

13.5. If Company has suspended the Services in accordance with clause 13.3 of these General Conditions, Company shall restore the Services when the circumstance described in clause 13.3 of these General Conditions is remedied.

13.6. The Customer shall remain liable for: (a) all Charges levied in accordance with the Agreement during any period of suspension; and (b) all reasonable costs and expenses incurred by Company in the implementation of such suspension or disconnection, where such suspension or disconnection arises from the circumstances described in clause 13.3 of these General Conditions.

14. TERMINATION

Termination for convenience

14.0. The Customer may terminate the Agreement (in whole or in relation to a particular Service) by providing to Company 90 days’ notice in writing providing such notice does not expire prior to the expiration of the Initial Period or Subsequent Period relevant to those Services being terminated.

14.1. Company may terminate the Agreement (in whole or in relation to a particular Service) by providing to the Customer 90 days’ notice and, in this event, the Customer shall not be liable for any Termination Fees. Termination resulting from changes to the Agreement

14.2. Subject to clause 14.4 of these General Conditions, the Customer shall be entitled to terminate a Service by providing 30 days’ notice in writing if:

14.3. Company increases the prices and/or tariffs set out in the Company Price List and/or the Commercial Schedule in respect of that Service pursuant to clause 12 of these General Conditions and that increase is to the material disadvantage of the Customer (for the avoidance of doubt an increase in prices and/or tariffs of 10% or less in any 12 month period shall not constitute a material disadvantage of the Customer); or

(a) Company substantially varies the terms of the Agreement that relate to that Service pursuant to clause 12 of these General Conditions (including the Commercial Schedule) and that variation is to the Customer’s material disadvantage,

(b) provided that such notice is provided to Company within 30 days of the date that the change comes into effect.

14.4. The right to terminate a Service in clause 14.2 above shall not apply where the increases in prices or tariffs or the variation of the terms of the Agreement arises as a consequence of a change in prices, tariffs, terms or otherwise made by Third Party manufacturers, Third Party suppliers or a regulatory body.

14.5. Termination of a Service in accordance with clause 14.2 of these General Conditions will not affect the Customer’s requirement to pay the Charges relating to that Service incurred prior to the date of termination, but, in this event, the Customer shall not be liable for any Termination Fees. Termination for cause Insolvency

14.6. A party to the Agreement may terminate the Agreement by providing 30 days’ notice in writing in the event that bankruptcy or insolvency proceedings are brought against the other party, or if an arrangement with creditors is made, or a receiver or administrator is appointed over any of the other party’s assets, or the other party goes into liquidation. Consequences of termination

14.7. If the Agreement is terminated and the Customer wishes to transfer to another service provider, Company will provide reasonable assistance to the Customer in respect of the transfer of the Customer’s service in accordance with standard telecommunications industry practice.

14.8. Termination or expiry of the Agreement for whatever reason shall not affect:

(a) the rights and obligations of the parties which have accrued prior to such termination or expiry; or

(b) any provisions of the Agreement which are of a continuing nature and any other provisions of the Agreement necessary for their interpretation or enforcement.

14.9. On termination or expiry of the Agreement:

(a) any sums properly due from one party to the other will become payable within 30 days of termination (including Termination Fees);

(b) the Customer shall cease using the Services and return all equipment; and

(c) each party will, on request, promptly return to the other all Confidential Information and other property belonging to the other which is in its custody or control or will destroy such Confidential Information and certify such destruction to the other party. 14.13.

14.10. In the event of the Customer wishing to terminate any of the Services at any time prior to the expiration of the Initial Period or within any Subsequent Period relevant to such Service will be paid in full up to the future end date of the contract. Customer shall pay in full

(i) any amount equal to the Discount for the period any of the Services have been supplied as Discount Services during Initial Period or Subsequent Period(s) and (ii) and admin charge of £25 per each Service and per each line or connection. Any incentive devices listed on the order form will need to be returned or paid for in full if not retuned.

14.10.1. Incentive Devices

14.10.2. Company agrees to loan the hardware equipment listed on the order sheet as Incentive Devices to the customer for the duration of the contract term at no cost to the Recipient.

14.10.3. The customer acknowledges that the hardware equipment remains the property of the Company at all times during the Term.

14.10.4. Upon the expiration or termination of this Agreement, the Recipient shall return all hardware equipment to the Provider in the same condition as received, reasonable wear and tear excepted. The Recipient shall bear all costs associated with the return of the hardware equipment.

14.10.5. In the event that the hardware equipment is not returned to the Provider within 30 days of the expiration or termination of this Agreement, the Customer shall be liable to the Company for the full replacement cost of the equipment as specified on the order form and at the listed price.

14.10.6. The Company reserves the right to inspect the hardware equipment upon return and assess any damages beyond reasonable wear and tear. The customer shall be responsible for any repair or replacement costs for damages beyond reasonable wear and tear.

14.11. In the event of the Customer:

(a) terminating any of the Services; or

(b) attempting to terminate any of the Services; or

(c) receiving notice from Company terminating any of the Services pursuant to any of clause 14.7 or 14.9 during the Initial Period or Subsequent Period(s),

14.12. then the Customer accepts that Company shall be entitled to invoice the Customer a cancellation charge which is equal to:

14.12.1. 100% of the total Charges which are fixed charges (i.e. Line Rental Charges); together with an amount equal to

14.12.2. 30% of the aggregate anticipated call charges and other non -fixed charges

14.12.3. in each case which would have been payable in respect of the relevant Services being terminated or attempted to be terminated during each month outstanding during the remainder of the relevant Initial Period or Subsequent Period (as applicable).

15. INTELLECTUAL PROPERTY

15.0. Title to, and all intellectual property rights in the Software, associated documents and all parts thereof will be and remain vested in and be the absolute property of the owner of the copyright in the Software or associated documents as appropriate, which owner shall be entitled to enforce any of the terms of the Agreement relating to the Customer’s use of that Software, associated documents and all parts thereof, directly against the Customer.

15.1. All information or materials exchanged between Company and the Customer in connection with the Agreement, together with the copyright therein, will remain the property of Company, Company’s suppliers or the Customer as applicable and will be returned to the owning party on termination of the Agreement, if requested by such party.

15.2. Company grants to the Customer a non-exclusive, non-transferable licence to use, in object code form, any Software provided by Company or its suppliers solely in the United Kingdom in connection with the proper use of the Services. The Customer undertakes not to copy, alter, adapt, translate, software develop, decompile, license, sub-license, reverse engineer or resell any Software (or any part of the Software), unless expressly permitted to do so by Company or by relevant law. This licence will terminate on the termination of the Agreement (or any relevant part of the Agreement).

15.3. Company grants to the Customer a non-exclusive, non-transferable royalty free licence for the term of the Agreement to use copy and reproduce any information or materials provided by Company to the Customer under the Agreement to the extent necessary for the Customer to receive the benefit of the Services. The Customer must not alter, adapt, translate, develop, decompile, license, sub-license, reverse engineer or resell any such information or materials (or any part thereof), unless expressly permitted to do so by Company or relevant law.

15.4. In the event that the Customer is subject to a claim by a Third Party in respect of any alleged infringement of any trademark, patent, registered design or copyright arising from its normal use or possession of the Mobile Equipment, Hardware, Software, information or materials provided by Company then Company will indemnify the Customer in relation to such claim provided that the Customer promptly notifies Company of such claim, makes no admission in respect of such claim, the Customer seeks to mitigate the loss where it can do so without unreasonable inconvenience or cost, allows Company or its licensor or supplier to conduct all negotiations and proceedings (providing Company or its licensor or supplier with all reasonable assistance) and allows Company at Company’s own discretion and expense to modify or replace the Mobile Equipment, Hardware, Software, information or materials so as to avoid any continuing infringement. This indemnity does not apply to any such infringements caused by the Customer’s own breach of the terms of the Agreement or the operation or use of the Mobile Equipment, Hardware, Software, information or materials in conjunction with other equipment and software or Services not supplied by Company pursuant to the Agreement in which event the Customer shall indemnify Company in respect of any claims, proceedings and expenses arising from any such infringement by the Customer.

15.5. The Customer will not be entitled to and agrees not to:

15.5.1. use in the course of trade or otherwise in relation to any goods or services of the Customer any registered or unregistered trademark, logotype or abbreviation of the name of Company (or any of its suppliers including without limitation 02) or any part thereof so that any person might reasonably import a connection between those goods or services and Company (or any of its suppliers) or any part thereof;

15.5.2. register or attempt to register as a trade mark anything referred to in clause 15.5 of these General Conditions; and/or

15.5.3. authorise any Third Party to do anything referred to in clause 15.5.1 of these General Conditions.

15.5.4. The Customer further agrees not to infringe any copyright, or registered or unregistered trademark rights belonging to any Third Party in respect of any Hardware or Mobile Equipment. End User Licence Software

15.6. The Customer recognises that the Services may be dependent upon End-User Licensed Software and if the Customer does not accept the licence terms relating to any End-User Licensed Software, Company shall have no liability whatsoever for any failure to provide the Services to the Customer where the Services depend on the use of End-User Licensed Software.

15.7. Where the Customer accepts the terms of a licence in respect of any End-User Licensed Software, then those licence terms shall take precedence over any terms within the Agreement relating to End-User Licensed Software and shall exclusively comprise the Customer’s sole rights and remedies in respect of such End-User Licensed Software.

15.8. The Customer shall accept and comply with all licence terms required from time to time by any Third Party provider of any Software or materials as agreed between the relevant Third Party and 02.

16. CONFIDENTIALITY

16.0. Neither party will divulge Confidential Information to any Third Party except such of its employees, contractors, suppliers and agents as may need to know the same for the purposes of the implementation and/or performance of the Agreement and in each case who agree to be bound by the provisions of this clause 16.0.

16.1. The obligation of confidence set out in clause 16.0 shall not apply to any material or information which is:

16.1.1. in the public domain (other than as a result of a breach of the Agreement); already known to the receiving party prior to the Commencement Date; lawfully received from a Third Party; or

16.1.2. required to be disclosed pursuant to the order of a court or other tribunal or regulatory authority of competent jurisdiction.

16.2. The obligation of confidence set out in this clause 16 shall apply in the period commencing on the Commencement Date and ending five years after the termination or expiry of the Agreement.

17. LIMITATION OF LIABILITY

17.0. Subject to clauses 17.2 and 17.3 of these General Conditions, Company shall not be liable to the Customer in respect of any matter arising out of or in connection with the Agreement in contract or tort (including negligence) or otherwise for any loss (whether direct or indirect) of profit, business, revenue, anticipated savings, goodwill, business interruption, from wasted expenditure or any loss or corruption of data, or for any indirect or consequential loss or damage whatsoever.

17.1. Subject to clauses 17.0, 17.2 and 17.3 of these General Conditions, Company’s aggregate liability of any sort resulting from breach of contract or negligence, under any indemnity or otherwise arising in connection with the Agreement (whether to the Customer, any Customer Affiliate, Users or otherwise) shall be limited in respect of all claims arising in a Year to an amount equal to the Annual Agreement Value, where the “Annual Agreement Value” means the total Charges paid or payable by the Customer in the year prior to the year in which any claim arises (or where a claim arises during the first year of the Agreement, the Charges paid or payable up to the date on which the Customer’s right to take action in respect of the claim arose); and “Year” means the first, and each subsequent, consecutive period of 12 months of the Agreement commencing on the Commencement Date.

17.2. Nothing in the Agreement shall exclude or restrict the liability of Company for:

(a) death or personal injury resulting from its negligence;

(b) for breach of any implied term as to title or quiet enjoyment arising out of section 12 of the Sale of Goods Act 1979; or

(c) any fraud or fraudulent misrepresentation committed or made by it.

17.3. Nothing in the Agreement shall exclude or restrict the liability of either party in respect of any liability which cannot be excluded or restricted by law

17.4. Nothing in this clause 17 shall apply to the payment of the Charges.

17.5. Subject to clauses 17.2 and 17.3 of these General Conditions, the express terms of the Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law. Liability for Third Parties

17.6. Company shall not be liable for the acts or omissions of other providers of telecommunication services unless such other providers have been specifically engaged by Company as subcontractors or assignees in respect of the performance of Company’s obligations under the Agreement.

18. ASSIGNMENT

18.0. The Customer shall not assign or transfer the Agreement to any third party without the prior written consent of Company, such consent not to be unreasonably withheld or delayed. 18.1. Company may assign or transfer the Agreement to any third party and may subcontract the performance of all or part of the same, provided that Company shall remain liable for the acts and omissions of its subcontractors. 18.2. Company may assign or transfer to any third party and/or more than one third party a particular Service (rather than the Agreement as a whole). Where Company assigns or transfers to any third party a particular Service only, such assignment or transfer shall be of such part of the Agreement as relates and/or is generally applicable to the relevant Service being transferred or assigned. The Agreement shall, following such assignment or transfer continue in accordance with its terms as relate to or are generally applicable to the remaining Services.

19. ENTIRE AGREEMENT

19.0. The Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, proposals, understandings and agreements whether written or oral relating to the subject matter of the Agreement.

19.1. Each of the parties acknowledges and agrees that in entering into the Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in the Agreement. Nothing in this clause 19.0 shall, however, operate to limit or exclude any liability for fraudulent misrepresentation.

20. INVALIDITY If any of the provisions of the Agreement become invalid, illegal or unenforceable, the validity or enforceability of the remaining provisions shall not in any way be affected or impaired. In such circumstances, the parties shall negotiate in good faith in order to agree the terms of a mutual satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision which is found to be invalid, illegal or unenforceable.

21. WAIVER The failure or delay by either party to the Agreement to exercise or enforce any right, power or remedy under the Agreement shall not be deemed to operate as a waiver of any such right, power or remedy; nor shall any single or partial exercise by any party operate so as to bar the exercise or enforcement thereof or of any right, power or remedy on any later occasion.

22. DATA PROTECTION

22.0. Company operates in accordance with the Data Protection Act 1998 as updated or amended from time to time. The Customer agrees that its details, or those of its Users may be used and disclosed to third parties by Company for the purposes of the Agreement, for the purposes of any assignments or transfers by Company pursuant to clauses 18.1 and/or 18.2 and for marketing purposes including informing the Customer and its Users from time to time about other Services or associated technologies. If the Customer or a User does not want its details, or, in the case of the Customer those details of its Users to be used for direct marketing purposes in this way then the Customer should contact Company.

22.1. The Customer will ensure that its Users have consented to the use of their details in accordance with clause 22.0 of these General Conditions.

22.2. Without prejudice to clause 22.0 of these General Conditions, in so far as Company processes any personal data on behalf of the Customer, Company shall not transfer personal data outside the European Economic Area without complying with the Eighth Data Protection Principle set out in Schedule 1 of the Data Protection Act 1998 by providing an adequate level of protection to any personal data that is transferred.

23. EXPORT CONTROL

23.0. Delivery of the Mobile Equipment, Hardware and/or End-User Licensed Software (as applicable) to the Customer may be subject to export control law and regulations. Company does not represent that any necessary approvals and licences have been obtained or will be granted.

23.1. The Customer agrees to comply with any applicable export or re-export laws, regulations, prohibitions or embargoes of any country, including obtaining written authority from any relevant licensing authority where necessary.

23.2. In the event that the Customer procures Mobile Equipment, including xda devices or similar computer technology from Company, the Customer agrees that in entering into the Agreement the Customer accepts the terms of the following end-user undertaking: The Customer certifies that it or will be the end-user of the Mobile Equipment and further certifies that it shall use the Mobile Equipment only for the purposes of allowing its employees to send, receive, store and process data and voice Mobile Services in order to perform their everyday contractual duties; that the Mobile Equipment will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that the Mobile Equipment will not be re-exported or otherwise re-sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; and that the Mobile Equipment, or any replica of them, will not be used in any nuclear explosive activity or un-safeguarded nuclear fuel cycle activity; and agrees to sign a formal “End-User Undertaking” in a format specified by the United Kingdom Department of Trade and Industry if requested to do so by Company.

24. RELATIONSHIP OF THE PARTIES Nothing in the Agreement shall create, or be deemed to create, a partnership or joint venture between the parties and nothing in the Agreement shall be construed to appoint one party as the distributor, dealer or agent of the other.

25. NOTICES Any notice or other communication required or permitted under the Agreement to be given in writing shall be given in writing to the address of the recipient stipulated herein or as notified from time to time and will be deemed to have been given or made: when delivered personally; or, if properly addressed and posted by first class mail in the United Kingdom within two Working Days of posting: or, if sent by facsimile upon being sent; or, if sent by e-mail or other electronic means upon such communication being acknowledged as having been received.

26. NO THIRD PARTY RIGHTS Except as otherwise explicitly set out in the Agreement, a person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement. For the avoidance of doubt, Customer Affiliates shall have no rights to enforce any term of the Agreement.

27. PRIORITY OF DOCUMENTS FORMING THE AGREEMENT

27.0. The Agreement includes the following documents:

(a) the Commercial Schedule;

(b) these General Conditions;

(c) the applicable Terms;

(d) the applicable Service Schedule(s);

(e) the Company Price List; and

(f) any other documentation explicitly referred to in the Agreement.

27.1. In the event of any conflict between provisions of the documents making up the Agreement, the order of precedence shall be as set out in clause

28.0 of these General Conditions (in order of decreasing precedence) unless explicitly stated otherwise.

28. CREDIT CHECKS AND FRAUD PREVENTION

28.0. When the Customer applies for Services, Company may check the following records about the Customer and the Customer’s business partners:

28.0.1. Company’s own records;

28.0.2. business records at credit reference agencies (“CRAs”) including both public (including the electoral register) and fraud prevention information. When CRAs receive a search from Company they will place a search footprint on the Customer’s business credit file that may be seen by other lenders;

28.0.3. records held by fraud prevention agencies (“FPAs”); and

28.0.4. if the Customer contact is a director, Company may seek confirmation, from CRAs that the residential address that is provided is the same as that shown on the restricted register of directors” usual addresses at Companies House.

28.1. Company may also make checks such as assessing the Customer’s application for Services and verifying identities to prevent and detect crime and money laundering. Company may also make periodic searches at CRAs and FPAs to manage the Customer’s Company account.

28.2. Company will send information on the Customer’s applications, Company account and how the Customer manages its account to CRAs which may record such information, including information on the Customer’s business and its proprietors. The CRAs may create a record of the name and address of the Customer and its proprietors if there is not one already.

28.3. If the Customer does not pay the Charges when they become due and payable, CRAs will record the outstanding debt which shall remain on file for six years after they are closed (whether by settlement or default). Such records may be supplied to other organisations by CRAs and FPAs to perform similar checks and to trace the Customer’s whereabouts and recover debts owed by the Customer.

28.4. If the Customer gives Company false or inaccurate information and Company suspect or identify fraud Company will record this and may also pass this information to FPAs and other organisations involved in crime and fraud prevention.

28.5. Company and other organisations may access and use from other countries the information recorded by fraud prevention agencies.

28.6. Customer data may also be used for other purposes for which the Customer or any User gives its specific permission or, in very limited circumstances, when required by law or where permitted under the terms of the Data Protection Act 1998.

29. GOVERNING LAW The Agreement, and any issues or disputes of whatever nature arising out of or in any way relating to it or its formation (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation, or otherwise) shall be governed by and construed in accordance with the laws of England and Wales. The Parties submit to the exclusive jurisdiction of the courts of England and Wales.

VOIP TERMS The following additional terms and conditions apply to the provision of VOIP Services

1. DEFINITIONS

1.0. In the VOIP Terms, in addition to those terms and conditions defined in the General Conditions, the Mobile Terms, the Mobile Equipment Terms and the Broadband Terms the following terms and expression apply:

1.0.1. “Broadband” means an asymmetric or symmetric digital subscriber line (ADSL or SDSL);

1.0.2. “Customer Equipment” means any telecommunications apparatus or system owned, controlled or housed by the Customer, excluding Service Equipment;

1.0.3. “Customer’s Premises” means the Customer’s premises the address of which is set out in the Commercial Schedule;

1.0.4. “IP Centrex Service” means a centrally hosted service for the provision of voice communications over IP networks;

1.0.5. “Service Equipment” means equipment (including but not limited to any data collection and call routing devices, routers, switches, handsets and other telecommunications equipment) which Company (or a third party on Company’s behalf) may from time to time deliver to and / or install at the Customer’s Premises for the purposes of providing the VOIP Service, as specified in the Commercial Schedule;

1.0.6. “Software” means the VolP application software used by Company (or a third party on Company’s behalf) to provide the IP Centrex Service; and

1.0.7. “VOIP Service” means the IP Centrex Service, and any other services which the Customer requested from Company as specified in the Commercial Schedule (including supply, delivery and installation of Service Equipment, training and Broadband connectivity).

2. THE SERVICE

2.0. Company shall respond to any reported fault with the VOIP Service as soon as reasonably practicable during Company’s normal working hours and will use all reasonable endeavours to correct any fault within Company’s control.

2.1. Company will use all reasonable endeavours to ensure the security of the VOIP Service but the Customer should be aware that there is always a risk of security being breached for reasons beyond the control of Company, where for instance the VOIP Service is provided through a third party network.

3. SOFTWARE

3.0. Company grants the Customer a non-exclusive, non-transferable licence to use the Software for the term of the Agreement solely in connection with the use of the VOIP Service.

3.1. All intellectual property rights in the Software and the VOIP Service and any associated documentation made available to the Customer under the Agreement shall remain the property of Company or its licensors.

4. BROADBAND

4.0. In order to use the VOIP Service, it is the Customer’s responsibility to procure at its cost a Broadband connection, either through Company or through a supplier approved by Company.

4.1. Where Broadband is supplied by a third party, then Company does not assume any liability or responsibility for the third party Broadband service.

4.2. The Customer acknowledges that VOIP Service call quality depends on both the specification and availability of the Broadband service to which the Customer is connected and also on the IP or telecommunications network to which the person being called is connected.

5. IMPLEMENTATION

5.0. Company or its appointed agent will deliver and install the Service Equipment at the Customer’s Premises. Company will use all reasonable endeavours to deliver and install the Service Equipment by such date as it may have advised to the Customer. However, any delivery date given is an estimate only and Company accepts no liability for any delay in delivery however caused.

5.1. Risk in the Service Equipment shall pass to the Customer on delivery to the Customer’s Premises. The Customer will be liable for any loss or damage to the Service Equipment except where caused by Company or anyone acting on Company’s behalf.

5.2. Where the Customer is purchasing the Service Equipment from Company the Service Equipment will at all times remain the property of Company until such time as the Customer has paid Company for the Service Equipment in full.

5.3. Where the Service Equipment is supplied to the Customer by a third party on a hire or hire purchase basis, then the Customer shall enter into, and observe and comply with the terms of, a separate hire or hire purchase agreement with that third party.

5.4. Unless or until title to the Service Equipment passes to the Customer, the Customer shall not:

5.4.1. add to, modify or in any way interfere with the Service Equipment, nor allow anyone other than Company or someone authorised by Company to do so;

5.4.2. move the Service Equipment from the Customer’s Premises without the prior written consent of Company.

6. NUMBER PORTING

6.0. Where access to the VOIP Service is facilitated through BT number porting, the Customer authorises Company (or someone authorised by Company) to have the numbers from the BT lines listed in the Commercial Schedule (or as otherwise agreed between Company and the Customer) routed by Company (or someone authorised by Company) instead of BT and to forward appropriate details of the Customer’s porting application for the VOIP Service to Company (or someone authorised by Company). The Customer will receive advance notification of the change of service from BT to Company (or someone authorised by Company). Company’s (or someone authorised by Company) ability to provide the VOIP Service is subject to BT porting the numbers.

6.1. In the case of analogue lines being utilised for facsimile machines, the standard service is not compatible, and an alternative e-fax service will be offered for numbers that are required to be ported to Company. This may result in loss of service for a period of up to 15 days.

6.2. Basic Number Porting is charged at £85, this will cover one number. The Customer shall pay to Company an administration fee of £10 plus VAT per additional number ported.

7. USE OF THE SERVICE

7.0. The Customer will ensure that the Customer Equipment is in proper working order and complies with all applicable standards and approvals for connection to the telecommunications network. The Customer will not do anything that may damage or affect the operation of the telecommunications network.

7.1. If the VOIP Service is to be used to carry alarm signals, then Company will not accept responsibility for lack of VOIP Service or failure to deliver an alarm signal due to

a) the network going down;

b) suspension of the Customer’s account or

c) reasons outside Company’s reasonable control including but not limited to any technical failure of the network; because the network is being tested, modified or maintained or if access to the network is denied.

7.2. Company will have the right to recover all reasonable costs incurred in investigating or remedying any fault with the VOIP Service where it is caused by the Customer’s negligence or default or by the Customer Equipment or where the fault does not lie with Company or any Service Equipment.

7.3. The Customer shall not sub-license, re-sell or offer in any manner, to a third party, the Service or use of or access to the VOIP Service, whether for commercial gain or otherwise.

8. CHARGES AND PAYMENT

8.0. The Customer shall pay to Company the Charges in respect of the VOIP Service as specified in the Commercial Schedule.

8.1. In addition, the Customer shall pay to Company all charges relating to calls made through the VOIP Service as are set out in Company’s Price List as in force from time to time (a copy of which is available on request).

9. DISCLAIMERS

9.0. Save for the warranties and conditions expressly set out in the Agreement, Company gives no warranty or condition regarding the VOIP Service and specifically Company:

9.0.1. expressly disclaims all conditions and warranties of any kind, whether express or implied, including but not limited to the implied conditions and warranties of satisfactory quality, fitness for a particular purpose, reasonable care and skill and non-infringement; and

9.0.2. gives no condition or warranty that the VOIP Service will meet the Customer’s requirements, will be uninterrupted or timely, will be secure or error free or that defects in the VOIP Service will be corrected.

10. LIABILITY

10.0. This clause sets out Company’s total liability to the Customer if the VOIP Service is not available for a continuous period of 12 hours or more in any one day and that unavailability is attributable entirely due to the fault of Company. In such an event Company’s total liability will be limited to the sum of 5% of the charges relating to VOIP Services incurred in the average month for the previous quarter. Such liability will be paid as a credit against the next invoice.

10.1. Company’s aggregate liability to the Customer under or in connection with the Agreement (whether in contract, tort or otherwise including any liability in negligence) in respect of all causes of action arising in a calendar year will not exceed 60% of the total Charges paid or payable by the Customer for the VOIP Service in such calendar year.

10.2. Company’s obligations and responsibilities under this VOIP Service Schedule are solely to the Customer and not to any third party and the Customer will keep harmless and will indemnify Company, its officers, employees and agents against any liabilities or costs arising from any and all claims by any third party in connection with the use of the VOIP Service or any defect in or failure of the VOIP Service.

10.3. In the event of any failure in the VOIP Service, Company will not be liable to the Customer for any charges incurred by the Customer should the Customer direct its traffic to another service provider.

11. SUSPENSION OF VOIP SERVICE

11.0. Company may at its sole discretion suspend with immediate effect the provision of the VOIP Service until further notice without liability or compensation to the Customer on notifying the Customer either orally (confirming the same in writing) or in writing in the event that:

11.0.1. the Customer is in breach of any term of this VOIP Service Schedule;

11.0.2. the Customer prevents or delays any prearranged maintenance from being carried out;

11.0.3. the Customer is suspected, in Company’s reasonable opinion, of involvement with fraud or attempted fraud in connection with the use of the VOIP Service;

11.0.4. Company is obliged to do so in order to comply with an order, instruction or request of any government, emergency service organisation or other competent authority.

11.0.5. If Company suspends the VOIP Service under this VOIP Service Schedule then Customer will reimburse any costs and expenses reasonably incurred as a result of such suspension and/or the services being reinstated.

12. TERMINATION

12.0. On termination of the VOIP Service Schedule (however occurring):

12.0.1. the Licence will terminate with immediate effect;

12.0.2. the Customer will allow Company or any third party authorised by Company prompt access to the Customer’s Premises to remove any Service Equipment;

12.0.3. where this VOIP Service Schedule is terminated before the end of the Initial Period or Subsequent Period (as relevant) other than for breach by Company, the Customer will be responsible for the cost of de-installation of the Service Equipment by Company with an admin charge of £25 per phone/connection. Any incentive devices listed on the order form will need to be returned as the cost of the customer or paid for in full, if not retuined within 30 days of termination.

BROADBAND TERMS The following additional terms and conditions apply to the provision of Broadband Services

1. DEFINITIONS

1.0. In the Broadband Terms, in addition to those terms and conditions defined in the General Conditions, the Mobile Terms, the VOIP Terms and the Mobile Equipment Terms, the following terms and expression apply:

1.0.1. “Acceptable Use Policy” means the policy setting out the acceptable use that the Customer can make of the Broadband Service which can be found at http://www.itcs.co.uk/terms or as otherwise notified by Company to the Customer;

1.0.2. “Broadband Charges” means the charges payable by the Customer in relation to the Broadband Services as set out in the Commercial Schedule, these Broadband Terms or as otherwise agreed between Company and the Customer;

1.0.3. “Broadband Equipment” means a modem, adaptor, cables and filter(s) and a CD and booklet;

1.0.4. “Broadband Service” means the Broadband service which the Customer requested from Company as specified in the Commercial Schedule, and

1.0.5. “MAC key” means a migration reference code.

2. RECEIVING THE BROADBAND SERVICE

2.0. Company grants a limited, revocable, non-exclusive, non-transferable licence to use the Broadband Equipment for the term of the Agreement for the sole purpose of receiving the Broadband Service.

2.1. In the event that the Customer wishes to migrate to the Broadband Service from another provider that Customer shall request a MAC key from its current provider.

2.2. Company does not warrant that the migration to the Broadband Service will be uninterrupted.

2.3. Customer agrees that Company or its appointed agent will immediately start work on the technical and operational elements required for provision of the Broadband Services upon the issue of order acceptance which may be prior to the end of any statutory cancellation period. Customer acknowledges and agrees that you it thereafter not have the right to cancel any Broadband Services under the Consumer Protection (Distance Selling) Regulations 2000 or otherwise.

3. BROADBAND EQUIPMENT

3.0. Company or its appointed agent will deliver the Broadband Equipment to the address specified on the Commercial Schedule provided that address is within the United Kingdom.

3.1. The Customer shall be deemed to have accepted an item of Broadband Equipment:

3.1.1. when that item of Broadband Equipment has been delivered, if Company is to deliver the item of Broadband Equipment; or

3.1.2. if the item of Broadband Equipment is to be collected by the Customer, when the Customer takes possession of that item of Broadband Equipment.

3.2. Risk in an item of Broadband Equipment will pass to the Customer when the item of Broadband Equipment is accepted by the Customer. The Customer shall not be liable for any loss or damage to the item of Broadband Equipment to the extent that such loss or damage is caused by the negligence of Company or its suppliers.

3.3. Title to an item of Broadband Equipment shall not pass to the Customer, except that title to accessory items shall pass to the Customer upon payment in full for such accessory items.

3.4. The Customer undertakes in respect of Broadband Equipment in which Company retains title pursuant to clause 3.3 of these Broadband Terms not to sell, transfer, lease, charge, assign by way of security or otherwise deal in or encumber the same in any way and that it shall keep such Broadband Equipment in good working order allowing for fair wear and tear during the period of use by the Customer.

3.5. Following any upgrade or replacement of Broadband Equipment or disconnection of Broadband Equipment from the Broadband Services, Company reserves the right to request the safe return of any such Broadband Equipment in which Company retains title pursuant to clause 3.3 of these Broadband Terms from the Customer at the Customer’s expense.

3.6. Company reserves the right to charge the Customer the price set out in the Replacement section of the Company Price List or £35 (whichever is the higher) from time to time for any Broadband Equipment that is not returned to Company in accordance with the provisions of clause 3.5 of these Broadband Terms or where the Customer fails to fulfil its obligations under clause 3.4 of these Broadband Terms.

3.7. In the event that the modem forming part of the Broadband Equipment is faulty, Company or its appointed agent will repair or replace the modem provided that the fault is not caused by any act or omission of the Customer. Replacement items of Broadband Equipment are available on payment of the applicable replacement items fee(s) detailed in the Company Price List or as otherwise notified to the Customer. The Customer shall return any faulty or replaced items of Broadband Equipment to Company at its own cost.

4. STATIC IP ADDRESS

4.0. Customer will receive a dynamic IP address unless it is eligible and chooses to receive a static IP address. If the Customer is eligible and chooses a static IP address, the Customer acknowledges and accepts that the IP address will be re-assigned to Company or its appointed agent in the event that the Broadband Service is disconnected or terminated for any reason. Broadband Charges may apply for static IP addresses.

5. BROADBAND SERVICE CONNECTION

5.0. Provided that the Customer has a serviceable BT phone line, connection takes place in the BT exchange and there should be no reason for a Company or BT engineer to visit the Customer’s premises. In the event that a BT engineer does need to attend the Customer’s premises for any reason, either prior to connection or during the contract period, then BT’s own charges may apply. Customer shall provide any reasonable cooperation and assistance that may be required to get complete connection to the Broadband Services and agrees to pay any connection fee.

5.1. The Customer acknowledges and accepts that when connecting the Customer’s phone line to the Broadband Service, there may be a temporary loss of telephone services or other telecommunications services. Company or its appointed agent will use its reasonable endeavours to keep this disruption to a minimum but Company will not be responsible for any resulting damage, loss or costs caused, unless caused by Company’s negligence.

5.2. Company does not warrant or guarantee the speed of the Broadband Services.

5.3. The Customer shall keep its current telephone line provider for the duration of the Initial Period and any Subsequent Period (as relevant). Customer acknowledges that it may not be able to continue receiving the Broadband Services in the event that the Customer changes its telephone line provider.

5.4. In the event that the Customer current phone line is disconnected for any reason, Company will charge the Customer a reconnection fee of £25 (as Company or its appointed agent will be required to pay a fee for reconnecting the Customer’s phone line). If the Customer changes the details of the account for its nominated BT phone line and this leads to BT disconnecting the Customer’s phone line then the Customer shall pay a reconnection charge to reactivate the Broadband Services. If the Broadband Service is suspended for failure to pay the Broadband Charges, in either event Company shall charge the Customer a reactivation fee of £25.

6. BROADBAND SERVICE CANCELLATION

6.0. Company shall be entitled to terminate the Broadband Service without liability before the Customer has been connected to the Broadband Service

(i) if the Customer fails a credit check or pre-authorisation of payments due is not approved,

(ii) if Company is not able to provide the Broadband Services to the Customer’s premises by the expected connection date for any reason or

(iii) if the Customer’s premises is not in a geographical area covered by the Broadband Services.

6.1. In the event that Company the Broadband Service is not connected within one (1) month of the confirmed connection date notified by Company to the Customer (other than as a result of the Customer’s act or omission), the Customer shall be entitled to cancel the Broadband Service by sending a cancellation notice in writing to Company.

7. CHARGES 7.0.

Company’s charges in relation to the Broadband Services are set out in the Commercial Schedule and can include (without limitation):

7.0.1. a monthly subscription fee;

7.0.2. Broadband Service connection fee; and

7.0.3. charges in pursuant to clause 5 of these Broadband Terms;

7.1. All invoices will be issued and held on Company’s or its appointed agent’s website. The Customer will need its member ID and password in order to access the invoices. Company or its appointed agent will notify the Customer as and when a new invoice has been issued and the Customer shall be responsible for viewing and taking copies of such invoices.

7.2. Company shall be entitled to terminate the Broadband Services in the event that Company does not receive full payment from the Customer for the Broadband Services.

8. CHARGES

8.0. Company shall not be held responsible for disruptions caused as a result of war, strikes, natural disasters or other ‘acts of God’ and shall not be liable for any delay or failure in the performance of its obligations to the extent that such delay or failure is attributable to matters beyond its reasonable control.

8.1. Company shall be entitled to make changes to its network or the technical specification of the Broadband Service or may need to suspend provision of the Broadband Services for operational or technical reasons. Company shall use all reasonable endeavours to notify Customer in advance of such changes or suspension if it materially affects the Broadband Services.

8.2. In the event that the Customer experiences a total loss of Broadband Services caused by Company for more than five (5) consecutive days, Company shall compensate the Customer for each day’s disruption by a credit towards the Customer’s monthly Broadband Charge equivalent to the amount Customer would have paid for the Broadband Service on those days. In order to receive this credit, Customer shall notify Company as soon as the Service failure occurs and request the appropriate credit by contacting Company when the Broadband Service is restored. The credit will be applied to the next monthly payment that Customer owes to Company.

8.3. In the event that Company reasonably believes that the Customer is using the Broadband Services in breach of its obligations including, without limitation, in breach of the Acceptable Use Policy, Company may without liability or further notice suspend the Broadband Services or in terminate the Broadband Services.

9. MOVING PREMISES

9.0. If the Customer moves premises and the Customer’s new premises is in an area that is covered by the Broadband Service, the Broadband Services will be moved to the Customer’s new premises. The Customer acknowledges and accepts that a connection fee may be payable.

9.1. Company will transfer the Broadband Services to another address free of charge once in any 12 month period since either the Customer’s connection or the Customer’s last move, whichever is more recent. Additional moves will incur a charge of £50 per move.

10. CUSTOMER OBLIGATIONS

10.0. The Customer agrees to comply fully with these Broadband Terms and at all times:

10.1. comply with the Acceptable Use Policy;

10.2. keep the Customer’s security information including, without limitation, user name and password, safe and notify Company immediately if the Customer becomes aware of any improper disclosure of its security information or unauthorised use of the Broadband Services;

10.3. ensure that the Customer’s equipment and software complies with all applicable laws and standards and that the Customer’s equipment and software is compatible with the Broadband Equipment;

10.4. if the Customer opts to use Company’s optional email and webhosting services, with the additional terms and conditions which apply in addition to these Broadband Terms. Use of Company’s optional email and webhosting services means that the Customer shall be required to Company’s our standard network settings (which includes a block on Port 25 while assigned to Company or its appointed agent’s SMTP server);

10.5. indemnify Company against all losses, liabilities, costs (including legal costs) and expenses which Company may incur as a result of any third party claims against Company arising from, or in connection with the Customer’s misuse of the Broadband Services or breach of these Broadband Terms; and

10.6. all amounts due to Company shall be paid in full (without deduction or withholding except as required by law) and Customer shall not be entitled to assert any credit, set-off or counterclaim against Company in order to justify withholding payment of any such amount in whole or in part.

Mobile Terms Here are some key points to which we’d like to draw to your attention:

1. Initial Period. You will be a party to this Agreement for at least the Initial Period agreed with You.

2. Terminating this Agreement. You can phone Us and give 30 days’ notice to terminate a mobile Agreement with effect from the end of (or after) the Initial Period. You may have to pay a Cancellation Charge, totalling the rest of the Monthly Charges for the remainder of the Initial Period.

3. Equipment: You may get Equipment from Us when you take out a Price Plan. Unless We tell you otherwise, You will only own this Equipment at the end of Initial Period.

4. Annual Price Increase: Your Price Plan Charge includes an increase by the annual percentage increase in the Retail Price Index (RPI). We will do this so the price increase takes effect in March of each year.

5. Breaking this Agreement. There are instances in which, because of something You do or do not do, We can suspend or disconnect You from the Services and/or terminate this Agreement. You may have to pay Us a Cancellation Charge as a result.

6. Additional charges. You may have to pay additional Charges, for example, the Separate Payment Handling Charge; or the Charge if You pay Your bill late; or the Charge if You wish to have Your Account restored following suspension; or the Charge for a paper or an itemised paper bill; or the Charge if You try to pay Your bill and the payment fails. Upgrades and Renewals. We don’t have to provide You with an Upgrade or Renewal. If You accept an Upgrade or Renewal, then a new Initial Period will be agreed with You.

7. Billing. We will make a bill available to You each month. This may be by post or electronically, at our choosing. You must pay it by the date set out on it to ensure continued access to the Service.

8. Lost or Stolen phones. If either Your phone or SIM Card are lost or stolen, please call customer services at once. You will have to pay for any Charges incurred on Your Account before You told Us.

9. Our Network. We will try to provide a high-quality Network to You at all times. However, we cannot guarantee that We will always be able to provide Network coverage

10. Credit Limits. We can set and change credit limits for Charges. If You go over Your credit limit, Please note that your Service may be suspended.

11. Changes to the Service and Charges. We will give You Written Notice of some changes to the Services or Charges before those changes take place. Your Price Plan Charge will go up by RPI during your Initial Term.

1. Definitions When We use these words they have the following meanings: ‘Account’ together Your Monthly Account and any Pay as You Go Account that You may have with Us;

‘Additional Service’ an optional/extra Service not part of Your Price Plan which can be added to Your Account, and the charges for a Service once any Allowance is used up;

‘Age Restricted Services’ any Services for which You need to be over a certain age to use;

‘Agreement’ these terms and conditions between You and Us for the use of the SIM Card to access the Services, together with the “What It Costs” booklets of Charges referred to throughout;

‘Allowance’ the amount and type of Services which may be provided as part of Your Price Plan Services or as part of any Additional Service;

‘Cancellation Charge’ the Charge which totals the rest of the Monthly Charges for the remainder of the Initial Period, calculated at a daily rate, discounted by 4% and any prepaid Charges;

‘Charge’ the Price Plan Charge, a charge for an Additional Service and any other additional charge including the Separate Payment Handling Charge and the Cancellation Charge;

‘Consumer’ a real person entering into the Agreement and/or using the Services for purposes outside his/her business;

‘Content’ all information whether textual, visual, audio or otherwise, appearing on or available on a one-off payment basis through the Services supplied by Us including by way of example only, a ringtone;

‘Equipment’ any equipment that You use to access the Services;

‘Monthly Account’ the account for which You are billed each month;

‘Monthly Charge’ the amount that You pay each month in advance for Your Price Plan Service;

‘Network’ the communications system which is used to provide the Services and any other type of communications system which may be provided and operated by Us now or in the future;

‘OFCOM’ The Office of Communications that regulates the telecommunications industry, including Us;

‘Pay As You Go Account’ the account in which We record Your credits and Charges for Services paid for in advance (for customers whose Price Plan allows) apart from the Monthly Charge;

‘Payment Terms’ the terms by which We manage Your Account and the ways You pay the Charges including any credit limit applied to Your Account;

‘Portal’ the exclusive selection of Content indicated to be available from Us and/or Our partners which You can access from the Equipment using wireless application protocol technology and/or by using the mobile internet;

‘Price Plan’ the bundle of Services including any Allowance provided to You by Us each month in exchange for Your payment of the Price Plan Charge;

‘Price Plan Charge’ the charge for the Price Plan Service, which comprises the Monthly Charge for the Price Plan;

‘Price Plan Service’ the inclusive Service supplied with Your Price Plan, the charges, types of calls You can make, messages You can send, data You can use and details of any other Services and other terms and conditions for which are set out in the “What It Costs” booklet for that Price Plan;

‘Renewing’, ‘Renewal’ entering into a new Initial Period in return for a benefit other than the supply of new Equipment at or after the expiry of Your existing Initial Period (or at any other time with Our express consent);

‘Roaming’ using Your SIM Card to connect to another network whilst You are outside the UK;

‘Separate Payment Handling Charge’ the charge for the processing by Us of payments made by means other than by direct debit or bank automated clearance system. The charge is applied according to how Your last bill was paid. The charge for the Services remains the same, irrespective of the payment method used; ‘Service’ a service provided to You by Us including the Price Plan Service and any Additional Service;

‘SIM Card’ the card or cards provided under this Agreement and used with Equipment to get Services; ‘Upgrading’, ‘Upgrade’ entering into a new Initial Period in return for the supply of new Equipment (whether free of charge or on payment by You) at or after the expiry of Your existing Initial Period (or at any other time with Our express consent);

2. Our Agreement

2.1. This Agreement starts when We accept Your request for Services. If We decide You need to pass a credit check as set out in point

4.11, this Agreement won’t start until You pass the credit check. We may use the information You provide Us to help Us make a credit decision before this Agreement starts. We will open an Account in Your name and apply Charges to it.

2.2. If We reject Your request but You incur Charges, We can recover those Charges from You.

2.3. We will connect You to the Services as soon as We can.

2.4. At the end of the Initial Period this Agreement will continue until terminated.

2.5. If You are Renewing or Upgrading the following terms apply to You:

2.5.1. Unless We agree otherwise, a new Initial Period will apply. Once that Initial Period is over this Agreement will continue until terminated;

2.5.2. Your new Initial Period will start from the date that We process Your Upgrade or Renewal.

2.6. We don’t have to provide You with a Renewal or Upgrade.

2.7. We don’t have to allow You to change Price Plan.

2.8. If You already have an Account with Us, any additional SIM Card that You request will be added to that Account. For the avoidance of doubt, if You have more than one SIM Card, each SIM Card may provide You with Services which are subject to a separate Initial Period and therefore Agreement, with Us. As a result, the Initial Period that applies to each SIM Card may not begin and end at the same time.

2.9. The following terms apply to SIM Cards:

2.9.1. If a SIM Card is lost, stolen or damaged, You should call customer services for a new one. (See point 4.6 below). We may charge for a replacement;

2.9.2. We own the SIM Card and license You to use the telephone number associated with it. You can only use a SIM Card to use the Services;

2.9.3. We can change a SIM Card’s phone number(s) if We have a good reason, for instance, a legal reason or where We are required to do so by OFCOM or any other regulatory body. We will endeavour to give You 30 days’ Written Notice if We have to do this. The new phone number will apply to Your SIM Card once any notice period that We are able to give You has run out;

2.9.4. We reserve the right to recall any SIM Card from You at any time to enhance or maintain the quality of the Services or Your Equipment.

2.10. We may set and change credit limits for Charges. We can suspend Your access to the Services if Your limit is exceeded. Charges are not capped by any limit We set as some Charges, for example international and Roaming call charges, may not be recorded against Your Account immediately, and the Charges incurred could therefore exceed Your credit limit before Your Account is suspended.

2.11. We will make a copy of Our current version of these terms and conditions available on Our website. We can change these terms and conditions for any good reason, for instance, if We want all customers on the same conditions. We will tell You about the change beforehand, as explained here.

2.11.1. If You are a Consumer and the change of terms and conditions is not of material detriment to You or You are not a Consumer, We will send You Written Notice 30 days before the terms and conditions are due to change. The new terms and conditions will automatically apply to You once that notice has run out;

2.11.2. If You are a Consumer and the change is of material detriment to You, We will send You Written Notice 30 days before the terms and conditions are due to change. The new terms and conditions will apply to You once that notice has run out, unless You terminate Your Agreement with Us within that notice period. If You do this You won’t have to pay any Cancellation Charge that would otherwise apply, see point 7.2.3.2.

2.11.3. We can change these terms and conditions if new laws or rules make it necessary or where We are required to do so by OFCOM or any other regulatory body. We will endeavour to give You 30 days’ Written Notice if We have to do this. The new terms and conditions will automatically apply to You once any notice period that We are able to give You has run out.

2.11.3. We can change these terms and conditions if new laws or rules make it necessary or where We are required to do so by OFCOM or any other regulatory body. We will endeavour to give You 30 days’ Written Notice if We have to do this. The new terms and conditions will automatically apply to You once any notice period that We are able to give You has run out.

3. Our Services

3.1. We will always try to make the Services available to You but sometimes they may be unavailable as a result of, or be affected by:

3.1.1. things like the weather and faults in other networks; or

3.1.2. degradation, congestion or maintenance requirements of the Network including (but not only) re-positioning and/or decommissioning of base stations.

3.2. At any time Our Network comprises lots of different types of technologies. The Services are made available provided You are in range of base stations forming part of the relevant technological Network when trying to use any particular Service. For example, You can only use 3G Services when You are in range of a 3G base station. You may have to connect to a particular Price Plan and/or use particular Equipment to gain access to certain Services. Any coverage maps are our best estimate of Our outdoor coverage but not a guarantee of service coverage which may vary from place to place.

3.3. You may use the Service to contact the emergency services for free by calling 999 or 112 (or by sending an SMS to 999 if you are registered to contact emergency services by SMS) provided you are in range of a base station forming part of Our Network. If You are not within range of one of Our base stations, or if Our base station is not transmitting for any reason, Your Equipment may try to use another mobile network to connect Your call to the emergency services. Depending on Your Equipment, Your approximate location using certain location data may be provided to the emergency services. See Your Price Plan terms and conditions for any other restrictions on access to emergency services.

3.4. We reserve the right to manage Your use of Our Network in order to protect it for the use of all of Our customers. We may therefore apply traffic management controls from time to time. Details of Our current policy are on Our website.

3.5. The Services are made available provided that You also comply with the following conditions, which are a fundamental part of this Agreement between You and Us:

3.5.1. The Services are not used for anything unlawful, immoral or improper;

3.5.2. The Services are not used to make offensive or nuisance communications in whatever form, or to make or receive reverse charge calls;

3.5.3. The Services are only used with Equipment approved for use with the Network and all relevant laws and rules are followed;

3.5.4. The Services are not used to send, receive, upload, download or otherwise facilitate any material which is offensive, indecent, defamatory, of a menacing nature, a nuisance, a breach of privacy, an infringement of copyright or any other intellectual property right or otherwise unlawful;

3.5.5. The Services are not used to access or use Content in a way that infringes the rights of others;

3.5.6. The Services are not used otherwise than in accordance with Our and any other networks’ policies for acceptable use, and (if appropriate) any relevant internet standards;

3.5.7. You give Us information We reasonably ask for;

3.5.8. All reasonable instructions We give You are followed;

3.5.9. You comply with any fair use policy applicable to Your use of the Services and if You are in breach of that policy You comply with any reasonable instructions that We issue to You to enable You to remedy that breach and to continue to use the Services;

3.5.10. The Services can be used to gain access to the services of a third party voice over internet protocol calling provider, subject to the terms and conditions of Your Price Plan;

3.5.11. You must not operate, whether directly or through a third party, any device to route or re-route voice, data or other Services on, from or to the Network, including but not limited to:

(i) a GSM Gateway, commonly known as a ‘SIM box’;

(ii) a device used to forward or divert calls with the intention of reducing Your charges for that call; or

(iii) illegal repeaters (a device to boost coverage which is unlicensed and used without Our express prior written consent);

3.5.12. You must not sell or attempt to sell or otherwise provide commercial services using Our Network to any third party without Our express prior written consent;

3.5.13. You, or anyone who uses Your SIM Card, must not damage the Network or put the Network at risk, or abuse or threaten Our staff;

3.5.14. Any information You give to Us, on which We may rely in making decisions concerning the provision of Services under this Agreement, must be true at the time You give it;

3.5.15. You must give Us any deposit or extra deposit that We ask for; and

3.5.16. You comply with any requirement of Ours to set up an online account for billing purposes. (See point 4.4.3).

3.5.17. You must not access any Age Restricted Services unless You are older than the required age. If You are allowed to access Age Restricted Services, You must not show or send content from the Age Restricted Services to anyone younger than the specified age. If You let anyone under the specified age use Your Equipment, You must deactivate access to the Age Restricted Services.

3.6. Any failure to comply with any of the points in point 3.5 will entitle Us to suspend or disconnect the SIM Card from the Network. We will also be entitled to terminate this Agreement and You may have to pay a Cancellation Charge.

3.7. By using the Services You consent to Us copying and/or modifying images or information You have created where such copying and/or modification is carried out for the purposes of transmission. This also applies where You use the Portal.

3.8. If You access the Services on or near the border of the Network and the network of any third party, You agree that You may not be able to access the Network but may instead be connected to the network of one of Our Roaming partners. Calls that You make will then be charged as if You were Roaming and those calls will not come out of any Allowance (unless the relevant “What It Costs” states otherwise).

3.9. Allowances which include (or Charges which are for) calling a UK mobile number will exclude calls to networks in the Isle of Man and the Channel Islands. Calls to customers of certain UK mobile networks may also be excluded. Please refer to Our “What It Costs (Non Standard Charges)” booklet for details.

3.10. We’ll use Our reasonable efforts to make commercial arrangements to enable You to access other networks so that You can use the Services whilst Roaming. We can’t guarantee the quality and coverage that any other network may provide. Additional Charges for Roaming are set out in Our “What It Costs (Non Standard Charges)” booklet. You may have to ask Us to set up Your Account for Roaming.

3.11. Any Equipment that We provide to You will be locked to Our Network. It may not be possible to unlock such Equipment so that it can be used on the network of another mobile provider. If the Equipment can be unlocked, We may unlock it for You at Our absolute discretion and We may charge You for this service. Please see Our “What It Costs (Non Standard Charges)” booklet.

3.12. We will allocate You a phone number to use with Your Equipment on the Network. You may also use a phone number transferred to Us from another mobile network operator. You can also take your telephone number with You when You leave Our Network. We will transfer Your telephone number to or from Our Network. Please see the porting compensation scheme on our website for more information on transferring Your telephone number.

3.13. You may get Equipment from Us when you take out a Price Plan. Unless We tell you otherwise, We will own any Equipment provided by Us for the first twelve months of the Initial Period. During this time, You:

3.13.1. Cannot sell or otherwise permanently give the Equipment to anyone else;

3.13.2. Must take all reasonable care of the Equipment and keep it in reasonable condition (subject to usual wear and tear) as if You owned it; and

3.13.3. Cannot change or alter the Equipment, other than standard software updates and app purchases.

3.14. After twelve months of the Initial Period, and provided You have not broken any condition of this Agreement according to point 3.15 below, You will automatically own the Equipment.

3.15. If during the first twelve months of the Initial Period, and before You get ownership of the Equipment provided to You by Us, you break any condition of this Agreement according to points 4.4.5 or 7.3.1, We may give You Written Notice to return the Equipment to Us.

3.16. The Services are for normal person to person use from Your Equipment. We’ll decide that the Services are being used improperly if You call and/or text more than 300 different numbers in a month. We will give You Written Notice if We think You are breaking this condition. If You continue to break this condition, We may immediately disconnect Your SIM from the Network.

4. What and how You pay

4.1. Our Charges are set out in Our booklets of charges, called “What It Costs”. We update these booklets from time to time. You can obtain up to date copies by calling customer services or referring to Our website.

4.2. All Our Charges are exclusive of VAT. You shall pay an amount inclusive of any VAT.

4.3. You may pay Charges in two different ways. You will pay for certain Services as a Monthly Account and You may pay for other Services as a Pay As You Go Account.

4.4. Monthly Account

4.4.1. We will make the bill for Your Monthly Account available to You every month by a method of Our choosing, currently post or electronic means. You must pay Your bill by the date set out on it. Additional Services may be charged in arrears or in advance, as set out in Our “What It Costs (Non Standard Charges)” booklet. Other Charges are for the month just passed and any earlier time if not previously charged for.

4.4.2. If You receive Your bill by post, We will make the bill available to You by sending the bill to the postal address that You registered with Us when You joined or, if You have notified Us of a change in postal address, to that new postal address.

4.4.3. If You receive Your bill electronically, We will make the bill available to You through an online account. It’s Your responsibility to set up Your online account. Your online account will tell You the date that Your bill is to be made available to You each month. In addition to this, You can ask Us to send You a monthly notification that Your bill is ready to be viewed. That notification may be by sending a message to Your SIM Card or by sending an email to the email address that You provide.

4.4.4. If You have not paid all or part of Your bill by the date set out on it You may have to pay a late payment Charge. We won’t ask You to pay this Charge if You make a part payment as described in point 4.4.5.2 below. You will also have to pay the reasonable costs (including debt collection agency costs) of collecting any late payment from You.

4.4.5. If You don’t pay any bill by the date set out on it, You will have broken an important condition which is a fundamental part of this Agreement between You and Us and this will entitle Us to suspend Your SIM Card from the Network; and/or terminate this Agreement immediately and charge You a Cancellation Charge; and/or

4.4.6. In addition to our rights under 4.4.5, if you do not pay a bill within the first six months of the Initial Period We may:

(i) place Your Equipment on a blacklist so that it cannot be used on any network within the United Kingdom, including Ours, except for making emergency calls and using Wi-Fi. We will give you reasonable Written Notice before We do this, which may be by SMS. We will remove the Equipment from this blacklist once You have paid the bill and/or any Cancellation Charge which We have charged You; and

(ii) (ii) Remotely disable Your Equipment so that it can no longer be used on any network, except for making emergency calls. We will give You reasonable Written Notice before We do this, which may be by SMS. We will enable Your Equipment once You have paid the bill and/or any Cancellation Charge which We have charged You. We may charge You the cost of enabling the Equipment except where something in point

4.4.7 has happened. We can change Your Payment Terms as a condition of this. 4.4.7. Points 4.4.5 and 4.4.6 will not apply if You have a genuine dispute with Us; and before the date by which Your bill must be paid, You have written (see point 9.6) to Us setting out the details of Your dispute, including the amount of Your claim against Us and the amount You intend to withhold as disputed. If the amount You intend to withhold is less than the total amount You owe Us then You must pay the difference by the date set out on the bill. If You don’t, then We can terminate this Agreement immediately.

4.4.8. Our rights set out in here are in addition to any other legal rights We may have against You.

4.4.9. You may have to pay additional Charges, the amount of which is set out in Our “What it Costs (Non Standard Charges)” booklet, for example: the Separate Payment Handling Charge; or the Charge to reconnect You to the Services (see point 6.3); or the Charge for a paper or paper itemised bill; or the Charge if You try to pay Your bill and that payment fails (see point 4.4.4).

5. Our Liability to You

5.1. We are only liable to You as set out in this Agreement. We have no other duty or liability to You.

5.2. Nothing in this Agreement removes or limits Our liability for death or personal injury caused by something We have done or failed to do or for any fraudulent misrepresentation We may have made to You.

5.3. Except as set out in points 5.1 and 5.2, Our total liability to You for something We or anyone who works for Us does or does not do will be limited to £3,000 for each SIM Card for one incident or £6,000 for each SIM Card for a number of incidents within any 12 month period.

5.4. If You are not a Consumer, We are not liable to You in any way for any loss or damage that was not reasonably foreseeable at the time You entered this Agreement. This includes but is not limited to loss of income; business; anticipated savings (meaning costs You expected to avoid by using Equipment or Services) or anticipated profits, loss of property or loss of use of property.

5.5. If You are a Consumer, We are not liable to You in any way for any loss of income; business or profits; or for any loss or damage that was not reasonably foreseeable at the time You entered this Agreement.

5.6. You must tell Us about any claim as soon as reasonably possible.

5.7. We will not be liable to You if We cannot carry out Our duties or provide Services because of something beyond Our control.

5.8. We will not be responsible for any harm You suffer from a Virus which infiltrates Your Equipment, whether it was transmitted via the Services or otherwise. You remain responsible for all Charges applied to Your accounts for the use of any Services activated by such a Virus.

5.9. This point 5 will apply even after this Agreement has been terminated.

6. When We may suspend or disconnect the Services

6.1. We may suspend the Services or terminate this Agreement and disconnect any SIM Card from the Network without warning if:

6.1.1. The Network breaks down or needs maintenance. We will try to make sure this does not happen often; or

6.1.2. You or anyone who uses Your SIM Card does not keep to the conditions of this Agreement or any other Agreement with Us or Our Group Companies.

6.2. You are liable for Charges during suspension unless We decide otherwise. We would not make You pay Monthly Charges or other recurring Charges during the suspension period only if there was a severe disruption to the Network (meaning that there was a breakdown in over 90% of the Network which lasted for 3 days or more) or where the Network has completely broken down.

6.3. We can charge to reconnect You to the Services except where something in point 6.1.1 happened. We can change Your Payment Terms as a condition of reconnection.

6.4. The rights that We have under this point 6 are in addition to the other rights that We have to suspend and/or terminate the Services and/or suspend or terminate this Agreement as set out in the following other points of this Agreement: 3.6, 4.4.5 and 7.3. If We suspend the Services for any reason set out in points 6, 3.6, 4.4.5 and 7.3, and the Services are suspended for more than 60 days, You may have to pass a credit check to reconnect the Services.

7. Changing Charges and terminating this Agreement

7.1. Changes to Services and Charges

7.1.1. We can lower any Charge at any time without telling You beforehand, although We will try to tell You if We can.

7.1.2. We can suspend, change, increase the price of or withdraw part or all of the Additional Services on giving active users of the Additional Service a reasonable period of Written Notice. The change will then apply to You once that notice has run out.

7.1.3. We can suspend, change or withdraw Your Price Plan or Price Plan Services. We will give You Written Notice 30 days before We do so. The change will then apply to You once that notice has run out.

7.1.4. Your Price Plan Charge and, if applicable, any Additional Commitment Service Charge includes an annual price increase, which will be the annual percentage increase in the Retail Price Index (RPI) published by the Office for National Statistics. We will give You 30 days Written Notice of the increase to take effect in March of each year and use the most recently published RPI figure before we give You Written Notice under this point 7.1.4.

7.1.5. We can increase your Price Plan Charge, or any other Charges, if We are required to do so as a result of any new legislation, statutory instrument, government regulation or any new taxation which We need to pass on to You as a matter of law.

7.2. Your Termination Rights

7.2.1. You can give us notice to terminate this Agreement, to take effect on or after the end of the Initial Period. However (except as set out in point 7.2.3) if, in our total discretion, We accept notice from You to terminate this Agreement within the Initial Period, You will have to pay Us a Cancellation Charge. You can terminate this Agreement without having to pay Us a Cancellation Charge after the Initial Period has ended.

7.2.2. You can only give Us notice to terminate this Agreement by calling customer services. Subject to point 7.2.1, Your Agreement will terminate 30 days from when We receive Your call, although You are free to change Your mind and call Us to withdraw Your notice of termination at any time during that period. You will be responsible for all Charges up to and including the date that this Agreement terminates.

7.2.3. A Cancellation Charge won’t apply if You are within the Initial Period and:

7.2.3.1. Our entitlement to operate the Network ends at any time; or

7.2.3.2. You are a Consumer and the change that We gave You Written Notice of in point 2.11.2 above is of material detriment to You and You give Us notice to immediately cancel this Agreement before the change takes effect; or

7.2.3.3. We have given You Written Notice of an increase in a Price Plan Charge under point 7.1 that is higher than the annual percentage increase in the Retail Price Index (RPI) as calculated in point 7.1.4; and You give Us notice to immediately cancel this Agreement before the change takes effect. 7.2.4. If You are terminating this Agreement and a Cancellation Charge doesn’t apply because the circumstances outlined in clause 7.2.3 have occurred, You can then ask for a refund of any unused Pay As You Go Account balance that You may have.

7.3. Our Immediate Termination Rights

7.3.1. We can terminate this Agreement immediately and You must pay Us everything that You owe, including any Cancellation Charge, if any of the following happen:

7.3.1.1. You break an important condition of this Agreement or a number of less important conditions;

7.3.1.2. You break a less important condition of this Agreement and do not put it right within 7 days of Us asking You to; or

7.3.1.3. If any step is taken to make any kind of arrangement that would compromise Your liability to pay Your debts; or

(A) if You are an individual and You are unable to pay your debts or if any step is taken to make You bankrupt; or

(B) if You are a company or other organisation and You become unable to pay Your debts (within the meaning of section 123 of the Insolvency Act 1986) or any step is taken to appoint an administrator, liquidator (for a reason other than solvent reorganisation), or receiver over You or any of Your assets. We can also terminate this Agreement if something similar (in any country) happens or if We think any of these things may happen.

7.3.2. We can terminate this Agreement if any licence of Ours to run the Network is ended. However, as described in point 7.2.3.1, You won’t have to pay a Cancellation Charge.

8. Portal Access

8.1. If You have Equipment which enables You to access the Portal, this section applies to You.

8.2. We will try to maintain Content on the Portal which is within Our control, but We can’t promise that it will always be complete, accurate and up to date. We aren’t responsible to You or any third party for any action You take because You relied on what We said or how We provided Content on the Portal.

8.3. We will try to give You Written Notice (as described in point 7.1.2 above) a reasonable period before changing an Additional Service which is Content. However, We may have to change, suspend, withdraw or increase the price of Content without giving You any warning. The new nature of the Content will be clear before You buy the Content following any change and if You then purchase the Content following the change, We will take that as acceptance of the new Content and its price.

8.4. We may provide links to other third party websites which may include links to the websites of Our partners. If You follow those links, You will be leaving the part of the internet or Portal that We or Our partners control. Because of that, any content or webpage that You access (directly or indirectly) is the responsibility of the third party who makes that content or webpage available to You. We don’t check (and so We don’t necessarily recommend) what is available on any third party website. We can’t make any promise to You about whether the content on any third party website is accurate, complete or reliable. We also cannot promise that the website will work for as long as You need it or whether it will even work at all.

8.5. You (and not Us in any way) are entirely responsible for anything that You upload, e-mail, post or otherwise transmit via Portal access. You agree that You will obey any acceptable use policy or fair use policy that We may have. If You fail to do so, points 3.5.9 and 3.6 will apply.

8.6. Your ability to access a secure internet environment will be dependent on Your Equipment and the third party supplier of Content.

8.7. This point 8 will apply even after this Agreement has been terminated.

9. General

9.1. You need to get Our explicit prior consent before You can transfer or try to transfer any of Your rights and responsibilities under this Agreement. We may transfer any of Ours without Your permission, provided the level of service You currently experience is not reduced as a result.

9.2. We can record any conversations between You and Our staff.

9.3. We may send notices to either Your postal address, Your online account, or Your email address regardless of how Your bill is made available to You. We may also send You ‘over the air’ updates to Your phone which may make some minor adjustments to the functionality or display on Your phone. You’ll need to accept these changes which may include doing anything reasonable We request.

9.4. You must call customer services straightaway about any change in Your postal address or email address. It’s Your responsibility to make sure that the email address that You give Us is correct, current and works at all times. If You change Your email address or it stops working for any reason, You must notify Us immediately. If You fail to inform Us of any change, We will continue to make Your bill available to You by either (depending on how You receive Your bills) sending it to the last postal address that You gave Us or making Your bill available in Your online account and sending any notification to the last email address that You gave Us. Those bills will be payable in accordance with point 4.4.

9.5. We aren’t responsible for messages that don’t get to You because Your Equipment is turned off or not connected to the Network.

9.6. Unless otherwise stated in this Agreement, any notices from You to Us must be sent to: ITCS Sony Technology Centre, Pencoed Technology Park, Bridgend, CF35 5HZ

9.7. Any concession or extra time that We allow You only applies to the specific circumstances in which We give it. It does not affect Our rights under this Agreement in any other way.

9.8. This Agreement shall not confer any benefit on a third party under the Contracts (Rights of Third Parties) Act 1999.

9.9. English law will apply to this Agreement and any disputes will be settled in the Courts of England and Wales, Scotland or Northern Ireland (as applicable). You may be able to take your disputes to adjudication under the Communications and Internet Services Adjudications Scheme, the details of which are set out in our Complaints Code of Practice. We will give you a copy if you ask for it.

9.10. If a point or condition of this Agreement is not legally effective, the remainder of this Agreement shall be effective. We can replace any point or condition that is not legally effective with a point or condition of similar meaning that is.

9.11. You confirm that the information that You provide to Us, including Your registration details, is true, accurate and complete. You agree to inform Us immediately of any changes to Your details by contacting Our customer services as set out in point 9.21.

9.12. We will only use Your personal information in accordance with the terms of this Agreement and Our privacy policy which You can find on Our website at www.itcs.co.uk/terms.

9.13. We and/or Our Group Companies will use Your personal information for providing the Services, Equipment and related products to You, administration of Your account and billing, advertising, marketing, research, analytics, credit scoring, customer services, tracking the Equipment You are using on Our Network and web use and profiling Your preferences. We will disclose Your information to Our service providers and agents to help Us with these purposes. We will keep Your information for a reasonable period after Your contract with Us has finished in case You decide to use Our Services again and may contact You about Our Services during this time.

9.14. You agree that We, Our Group Companies and Our carefully selected business partners can use information about You, including information about Your use of Our Network, Services and related products and the location of the Equipment You are using on Our Network, to tell You about products, services or promotions offered by Us and third parties that may be of interest to You and for research and analytics purposes. We may contact You by post, fax, email, telephone, electronic messaging (including but not limited to SMS and MMS) or online or via any other interactive media. If You would prefer not to receive direct marketing communications from Us, simply let Us know and We will stop sending them to You. Please see Our privacy policy at www.itcs.co.uk/terms for further details. If You will be giving the Equipment to someone else to use on our Network (for example, if You are paying for the Equipment for a family member), then You agree that You have told that person how We will use their information and obtained their consent to this.

9.15. You have a right to ask for a copy of Your personal information and to correct any inaccuracies. Please see Our privacy policy for further details.

9.16. In the event of a personal data security breach that affects You, We will notify the relevant authorities, and if appropriate, We will notify the subscriber or user of Our Services who is affected by the breach in writing. A personal data security breach that affects You (or the subscriber/user) does not give You the right to terminate this Agreement.

9.17. We will carry out any activity or disclosure of Your personal information to comply with Our legal and regulatory requirements, for law enforcement purposes and to detect, prevent or investigate crime, fraud and misuse of or damage to Our Network, Services and related products.

9.18. You have a right to choose whether Your details are included in directory listings, including the Phone book. If You want Your details included, please contact Our customer services department.

9.19. This Agreement is the whole agreement between You and Us. Any other information that You may have seen or heard before You entered into this Agreement isn’t included.

Development Support & Maintenance 

1. Definitions in this agreement

“ITCS” shall mean ITCS (UK) Ltd, Pencoed Technology Park, Bridgend, CF35 5HZ

“Customer” means the company, organisation, person or persons that enter into the agreement for the supply of Support services.

“Users” and or “End Users” means the individual(s) using the products and or services

“Account” means the confidential file where the details of the customer are held.

“Agreement” means a contract for the provision of ITCS’s Support Services agreed by both parties (ITCS and the Customer). The agreement declares that the customer accepts ITCS’s Support & Maintenance Contract Terms and Conditions and agrees to the provision of services as outlined within.

“SLA” means the Service Level Agreement that dictates the Response Times provided by ITCS to the Customer for Incidents and the availability / regularity of services.

“The Initial period” means the period set on the agreement form, this starts from the commencement of the Support Contract.

“Subsequent period(s)” means the subsequent period matching the initial period, running from term to term unless terminated by not less than 90 days written notice to before the end of the current period.

“Continuity” means the contract is deemed as renewed unless cancellation is received in writing with not less than 90 days written notice prior to the renewal date, any variation on this cancellation notice is at ITCS’s discretion

“Support Hours” means 8:30am to 5:30pm Monday to Friday excluding public and national holidays. ITCS reserves the right to reduce these support hours during Christmas and New Year and will publish any change of hours prior to the period on the ITCS website at http://www.ITCS.co.uk

“Our representative” means any employee, agent or subcontractor of ITCS (UK) LTD or other third party.

“Remote Support’ means any support given to you by us that is not given on site.

“On Site Support” means the provision of support services by ITCS at the customer site(s).

“Customer Site” means the Site or Sites specified in this agreement at which the Customer operates the Systems defined in the Agreement.

2. Requesting Support
   • All requests for Support from the Customer should be raised in one of two ways: via a call to the helpdesk on 08456 444 446, or by using our online support tracker tools.
   • The Customer must inform ITCS of any Incidents as soon as is practically possible. If there is a delay informing ITCS of obvious warning signs then the fault may grow and cause additional impact.
   • Upon receiving notification regarding an issue with the Customer’s System, the issue will be logged as an Incident with an allocated Incident reference number. The Incident reference number along with details of the Incident will be stated to the Caller.
   • In the event of the Customer wishing to query the progress of an Incident, the Customer should state the specific Incident reference number to enable ITCS to identify the Incident in question.

3. Delivery of Support
   • Support will be delivered by ITCS to the Customer in accordance with the Support Agreement.
   • ITCS retains the right to install 3rd party software on the Customer’s System to facilitate the remote connection and delivery of Support to the Customer. In accordance with this right:
     • If at any stage following the commencement of the Agreement the Customer refuses ITCS the right to install / use 3rd party software upon their System for the purposes stated in above clause, ITCS retains the right to revise any pricing previously agreed for the Agreement or to terminate the support agreement.
     • The ownership of 3rd party software installed upon the Customer’s System for the purpose stated above will remain vested in ITCS.
     • The Customer can request that ITCS demonstrate and explain what 3rd party software it intends to install on the Customer’s System and for what purpose it is intended.
   • Whilst working on Incidents, Consultants will keep a record of the time they spend and the actions taken. This information will be logged in the ITCS Support Application under the specific Incident reference number.
   • No guarantees or commitments will be given regarding the length of time required for resolving individual Incidents.
   • In providing Support, Consultants regularly refer to colleagues for help and advice with specific issues in order to resolve incidents as quickly as possible.
   • To ensure that Incidents are resolved as quickly as possible and to reduce the reliance on individual Consultants, ITCS retain the right to allocate Consultants to Incidents and actions within Incidents as they see fit, depending on the skills, experience and availability of Consultants.
   • The support specified in the Agreement will determine the actual Response Times available under the following categories:
     • Remote Support – unlimited for all Customers with a support contract, all calls answered directly by an experienced consultant.
   • On Site Support (Only provided with a separate IT Support Contract, or charged for on an as needed basis).
   • ITCS retains the right to decide whether Support will be delivered remotely or on site at all times.
   • The Customer accepts that whilst ITCS may advise on software licensing matters the Customer will be legally liable for maintaining, acquiring and proving that appropriate licensing agreements for all software in use on their IT System exists. Consequently, the Customer will be solely legally liable to pay any fees, fines or other costs associated with software licensing.
   • The customer will provide ITCS or its representative with unrestricted access to the system and will provide such further facilities and assistance as the representative may require carrying out the work. ITCS will not be liable for where its representative cannot provide support as a result of the Customer failing to provide such facilities or assistance.

4. Availability of Support
   • Standard Working Hours.
     • ITCS’s standard working Hours for the provision of remote Support services are 8:00 AM – 5.30 PM Monday to Friday (excluding public holidays) unless expressly stated otherwise in the Agreement.
     • ITCS’s standard working Hours for the provision of onsite Support services are 8.00 AM – 5.30 PM Monday to Friday (excluding public holidays) unless expressly stated otherwise in the Agreement (Including 1 hour for lunch).
     • Consultants will work on varying shift patterns within the hours stated above. This means that individual Consultants do not necessarily work from 9.00 AM to 5.30 PM on a daily basis.
   • Out of Hours Periods.
     • ITCS provide remote helpdesk Support during Out of Hours Periods which are the times beyond ITCS standard working hours by pre-agreement only.
     • On Site Support will NOT be available during Out of Hours Periods unless explicitly stated in the Customer’s Support Agreement.
   • The Customer is responsible for giving ITCS the authority to deal with 3rd party suppliers on behalf of the Customer. When such authority has not been provided, the Support that can be offered by ITCS may be limited.
   • The full breadth and depth of ITCS’s technical skills and expertise will not be available during Out of Hours Periods. Consequently, there may be instances when the on duty Consultant reaches the boundary of their experience causing Support to be suspended until other technical members of staff are available.
   • When other technical expertise and experience is required in relation to an Incident logged during an Out of Hours Period there is no guarantee that this will be available before the start of the next normal working day
   • Planned maintenance (e.g. Server reboots/security patches/updates) can be scheduled for Out of Hours but additional charges may apply.
   • ITCS cannot guarantee that the remote connection to the Customer’s System will always be available due to issues with the Customer’s System or other external factors beyond the control of ITCS (e.g. Internet Service Provider problems).
   • When a Customer has an Incident that is being worked upon during normal business hours that remains unresolved at 5.30 PM Support will not continue in the Out of Hours Period by default.
   • The Customer can opt to pay for Support during Out of Hours Periods either by:
     • Agreeing to a fixed fee as part of the overall contract cost in order to be able to log unlimited Out of Hours Support. The fixed fee will be stated in the Agreement.

OR

• Requesting Out of Hours Support on a pay as you go basis at the set hourly rate as stated in the Agreement.
• Minimum billing periods will apply when Support has been delivered for part thereof the billing period in question. (i.e. Up to 30 minutes of Support provision will result in a charge of 30 minutes of time. Between 30 and 60 minutes of Support will result in a charge of 1 hour of time etc…)
• When Out of Hours Support is requested on a pay as you go basis, the fees for Out of Hours Support will be invoiced in arrears as/when applicable as a separate line item in ITCS’s Support invoices.
• All Out of Hours Support Incidents logged will be subject to a minimum billing period of 30 minutes, followed by subsequent billing periods of 30 minutes.

• ITCS retains the right to revise the fees for Out of Hours Support from time to time and will notify Customers in advance of any price change.

5. Chargeable Services
   • Requests from Customers for Changes to their System not deemed as being implicit within the on-going Support duties required under the scope of this Agreement will normally be chargeable as separate pieces of work. ITCS will however assess each request on a request by request basis.
   • For separate pieces of work in the form of “consultancy” or “project work”, charges will be at the hourly rate as set out in the support agreement, unless a fixed price has been pre-agreed in the form of supporting quotes and proposals. The Customer will be required to confirm commencement of such work via sign off of a work sheet.
   • ITCS will always seek the Customer’s approval for chargeable Changes in advance, however, ITCS retain the right to perform chargeable Changes that fall outside of the Agreement without prior sign off if deemed absolutely necessary for the continued operation of the Customer’s System.
   • ITCS retains the right to revise the fees charged for on-going Support under the Agreement following the implementation of Changes.
   • Any Changes performed by ITCS to the System will be Supported under the Agreement, once any warranty periods have expired, and pending agreement being reached on revised fees for on-going Support (if applicable).
   • If Support is required for an unapproved System Change or another System, ITCS will endeavour to provide Support under the terms of the Agreement, however ITCS retains the right to refuse Support or impose additional charges as necessary.

6. Exclusions/Excluded Work
   • ITCS retains the right to exclude 3rd party software from the scope of the Agreement.
   • When 3rd party software is included within the scope of the Agreement, Support will only be provided to users that have a reasonable level of competency and once the user has used help files and other resources available from the vendor.
   • ITCS do not commit to having experts available for all 3rd party software and therefore cannot guarantee being able to resolve all Incidents relating to 3rd party software logged and will not provide training under the terms of the Agreement.
   • When 3rd party information or services are provided ITCS can make no guarantees about quality or suitability.
   • ITCS cannot guarantee that any 3rd party software including but not limited to Anti-Virus, security and firewall software, whether or not recommended by ITCS will keep computer(s) free of errors, viruses, worms, Trojans, email spam, spy ware, hacking or any other unauthorised access.
   • In certain circumstances when an issue exists with an aspect of the Customer’s System, ITCS may recommend a solution that will require a capital cost outlay by the Customer. Such costs will not be covered by the Agreement
   • If the Customer chooses not to adopt the solution recommended by ITCS and the issues continue, ITCS retains the right to refuse or limit Support in respect of the item / issue in question.
   • Alternatively, a higher charge for continued Support for the item / issue may be introduced to reflect the additional effort that would not have been required if the recommendation were adopted.
   • ITCS will require Administrator-level access to the System at all times
   • ITCS cannot be held responsible for being unable to provide Remote Support due to a lack of remote access to the System, when the lack of remote access results from a problem with connectivity that is beyond ITCS’s control.
   • ITCS will respond to Incidents in accordance with the Support Agreement as specified within.
   • ITCS retains the right to decide the appropriate course of action for each Incident and will follow the necessary troubleshooting steps in order to diagnose and then rectify the Incident.
   • Depending upon the nature of the Incident, ITCS may have to impose a workaround to rectify the Incident as opposed to a fix. Any workaround may be temporary prior to a permanent solution being instigated or permanent if the Customer decides not to proceed with a permanent fix.
   • A workaround may be of a technical nature or may involve changing a manual business process performed by the Customer.
   • ITCS will always aim to return the affected area of the System to an acceptable operational state, however depending on the nature of the problem this may not be possible without Changes to the System being made as in accordance with the Changes as described in section 7.
   • ITCS retains the right to not install, configure or Support any software for which the Customer cannot provide / produce a valid license for.
   • Other services not included as standard within the scope of the Agreement include:
     • Procurement of new or replacement hardware, software of whatever nature.
     • Provision of Anti-Virus Software (ITCS will make recommendations but the Customer will remain responsible for purchasing the appropriate licence).
     • Technical or end user training on the Customer’s System or 3rd party applications.
     • Internet connections email and web hosting services and remote file storage services.
     • Work required as a result of operator error or any other improper use, care of or accident to the system, or any failure of or change in: electricity, air conditioning, humidity control or other environmental or operating conditions not recommended or approved by ITCS, or by the system manufacturer
     • Electrical or other work external to the equipment.

7. Complaints
   • In the event of a complaint in respect of ITCS’s Support Services in whole or part, the Customer shall notify ITCS as soon as possible.
   • When a Customer needs to raise a complaint, the complaint should be lodged with a senior account manager or director of ITCS either verbally or in writing.
   • In the event that the Customer is dissatisfied with the quality of performance of a Consultant, the Customer must inform ITCS immediately, stating the basis for dissatisfaction. If, in the view of ITCS, the situation merits it, ITCS will withdraw the Consultant immediately and will use its reasonable endeavours allocate another.

8. Invoicing and Payment
   • The Customer will be invoiced for ITCS services in advance, and is payable from the date of acceptance of the agreement by both parties and will be subject to the following conditions:
     • For the initial period of the agreement the customer will not be required to pay any increased support charges. Subsequent period(s) may incur additional charges, and be increased at any time on or after the expiration of the initial period, subject to ITCS providing written notification no less than 30 days before such increase.
     • Upon the customer terminating the Support Service Agreement payments or arrears will be proportionate up to the date of termination.
   • The Customer must pay monthly by Direct Debit, this is to ensure credit worthiness and to prevent further admin charges being raised.
     • ITCS reserves the right to change the payment frequency to annually in advance, where a customer’s payment of monthly invoices is not made promptly for a period of 3 months.
   • If a payment from the Customer is not made for support charges or any part thereof, and remain unpaid for a period of 30 days, ITCS may without prejudice to other rights, put all support on hold. ITCS also reserves the right at this point to give notice to the customer requesting payment within seven days, failure to pay within the seven day period may result in termination of the support services and ITCS’s obligations under the agreement.
   • For work performed on behalf of UK registered organisations all amounts invoiced will be subject to VAT payable at the then prevailing rate, the total support charges for the agreement will be detailed in the support contract excluding VAT.
   • Any unpaid balance due shall bear interest at the rate of 8% per annum above bank of England base rate. Any costs of collection, including Court costs and reasonable legal fees shall be added as principal amounts to such balance.

9. Data Security/Recovery

ITCS provides access to our software platforms via scalable data centres, offering high-performance storage services that grow seamlessly with your needs. The software has a focus on robust security measures, and looks to safeguard your data with industry-leading encryption. We guarantee 99.9% uptime for a reliable infrastructure. ITCS offer simplicity, scalability, and reliability all converged to shape the future of cloud storage. That said we can never account for every cyber attack, and you agree that ITCS will not be held responsible for any data corruption or loss, howsoever caused. Should any such data loss occur, ITCS will make every effort to recover the data from backups.

10. Termination of Agreement
    • The Customer can terminate the Agreement at any time following the expiration of any initial or subsequent period. With the provision of a 90 day notice in writing before the end of any initial or subsequent term.
    • If the Customer wishes support services to be ceased immediately or at any specific point, the FULL charges for the initial term, or subsequent term will remain applicable and payable in full by the Customer.
    • ITCS can terminate the Agreement or any aspect of it with immediate effect if the Customer becomes the subject of a receivership, winding up, administration or bankruptcy order (or a petition is presented in respect of any of these). Or, if it otherwise appears to ITCS that the Customer is insolvent and unable to pay its debts as they fall due.
    • ITCS shall be entitled to terminate the Agreement in the event that the Customer commits a material breach of the Agreement and fails to remedy the breach within 90 days of receipt of written notice from ITCS.
    • The customer shall be entitled to terminate the Agreement in the event that the ITCS commits a material breach of the Agreement and fails to act on the breach within 90 days of receipt of written notice from the customer.
    • Any termination shall be without prejudice to ITCS’s other rights or to the Customers liability for amounts payable under the Agreement.
    • In the event of termination of the Agreement, ITCS retains the right to uninstall any 3rd party software from the Customer’s System that ITCS own the licence for or that ITCS have installed on behalf of a 3rd party who own the software licence.

11. Assignment

We may assign, subcontract or otherwise dispose of our obligations under the Agreement or any other agreement between the parties to any other party. Specifically, where we procure that a third party (such as the system manufacturer) provides a preventative maintenance routine, telephone, remote or on-site support or other services to the customer, the customer shall be bound by any additional terms which the third party may impose either on ITCS or the customer, and if there is any inconsistency between the terms of business of the third party of and the terms of the Support Services Agreement the terms of the third party terms shall prevail. The customer may not assign the Support Services Agreement without prior written consent by a director of ITCS. We reserve the right to assign and/or sub contract all or any part of the service but if we do this will not affect your rights under this agreement.

12. Confidentiality

Neither ITCS or any of our representatives or customers will, without the other’s written consent, disclose to any third party any information concerning the business or method of working of the other party which may be revealed to it during the period of the agreement or otherwise, except as required by law or to the extent that such information may become public knowledge or may be acquired or generated by either party independently from the other otherwise than by reason of a breach of this clause.

13. Limitation of liability
    • The liability of ITCS for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances, shall exceed the aggregate price paid for the services of the month of the incident in question.
    • In no event shall ITCS, it’s partners or suppliers be liable for costs of substitute goods or services, nor will they be liable for loss of profits, loss of data or any indirect, special, incidental, consequential or punitive damages however caused, whether due to a breach of contract, negligence or otherwise unless such liability is determined by a Court of competent jurisdiction, without further recourse to appeal, that it was caused by gross negligence, wilful misconduct or fraudulent acts, by ITCS.

14. Force majeure
    • If a default due to an Event of Force Majeure shall continue for more than twelve [12] weeks then the party not in default shall be entitled to terminate the Agreement. Neither party shall have any liability to the other in respect of the termination of the Agreement as a result of an event of Force Majeure if in breach.

15. Entire Agreement
    • The Support Services Agreement supersedes all prior Agreements made between ITCS and the Customer for the provision of Support services and constitutes the entire Agreement between the parties relating to ITCS’s IT Support Services.
    • The Agreement does not supersede the General Trading Terms and Conditions of ITCS for any other business activities that the parties are or have been engaged in or may be engaged in the future.
    • No addition to or modification of any provision of these Terms and Conditions shall be binding upon the parties, except as set out herein, unless made in writing and signed by a duly authorised representative of each of the parties.
    • If any term, clause or condition of these Terms and Conditions is in violation of any applicable law, statute or regulation, the term, clause or condition in question shall be deemed as being deleted without effect to the remainder of these Terms and Conditions.
      • These Terms and Conditions shall remain in full force as if the deleted term, clause or condition had not been included. ITCS and the Customer will negotiate, in good faith, alternative terms, clauses or conditions to those deleted that are mutually acceptable to both parties.
    • Headings are included for convenience only and shall not affect the interpretation of the Agreement.

16. Website/Domain Hosting & Software Development
    
    • Contract: The client’s approval for work to commence shall be deemed a contractual agreement between the client and ITCS. ITCS will carry out work only where an agreement is provided either by email, mail or fax. ITCS will carry out work only for clients who are 18 years of age or above. An ‘order’ is deemed to be a written or verbal contract between ITCS and the client; this includes telephone and email agreements.
    • Intellectual Property & Copyright: ITCS retains ownership of all intellectual property, including source code. Ownership of designs and images will be transferred to the client on payment of the final invoice. Any scripts, CGI applications, PHP scripts, or software (unless specifically agreed) in writing by ITCS remain the copyright of ITCS and may only be commercially reproduced or resold with the permission of ITCS.
    • Client’s Responsibilities with regard to Copyright: In situations where the client provides images, text, animations, layouts or any other content for their website/development they are legally responsible for ensuring that this material does not infringe any copyright. ITCS cannot take responsibility for any copyright infringements caused by materials submitted by the client. ITCS reserves the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material. ITCS will not be liable or become involved in any disputes between the website owner or managers and their clients and cannot be held responsible for any wrongdoing on the part of a website owner or manager. E.g. any disputes relating to content/images that have been provided to ITCS for inclusion on the website/development.
    • Conceptualising: Conceptualising is the process of producing website concepts for clients. Concepts can include site mock-ups, graphics and design proposals. The client agrees that (unless specifically agreed otherwise) only one concept will be provided by ITCS. In order to provide an appropriate website design, the client should therefore ensure that they have provided any colour scheme, artwork and design requirements beforehand. Note: Design concepts and associated graphics remain the property of ITCS unless otherwise agreed. Once development begins, amendments to the chosen concept will need a change request notification, and may be chargeable.
    • Stock Photography: Certain images provided by ITCS may have been purchased under license from stock image suppliers. These images are generally only licensed for use on a website. The license may not permit them to be used in publicity material. The website owner is legally responsible for ensuring that this does not happen. If the client wishes to use any such images from the website for other purposes they are required to contact ITCS for clarification. The client agrees to meet all third party costs arising from the purchase of stock photography as well as any administration fees relating to the procurement of images imposed by ITCS.
    • Database, Application and E-Commerce Development: ITCS cannot take responsibility for any losses incurred by the use of any software created for the client. Whilst every care is taken to ensure products are problem free and accurate, the ultimate responsibility lies with the client to ensure that all software is functioning correctly before and during use. Any scripts, applications or software (unless specifically agreed) written by ITCS remain the copyright of ITCS and may only be commercially reproduced or resold with the permission of ITCS. Where applications or sites are developed on servers not recommended by ITCS, the client is expected to provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed on servers not recommended by ITCS, it is the client’s responsibility to provide a suitable testing environment, which is identical to the final production environment. The client is expected to test fully any application or programming relating to a website developed by ITCS before it is made generally available for use. Where “bugs”, errors or other issues are found after the site/development is live, ITCS will endeavour (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief.
    • Web & Email Hosting: For sites and domains hosted by ITCS, no guarantees can be made as to the availability or interruption of this service. ITCS cannot accept liability for losses caused by the unavailability, malfunction or interruption of this service, or for loss of turnover, sales, revenue, profits or indirect, consequential or special loss. ITCS reserve the right to refuse to handle in any way, material, which may be deemed offensive, illegal or in any way controversial, and also to terminate the hosting service should the necessity arise. All standard hosting offered by ITCS is limited to 500mb of website space unless otherwise stated in the contract. Should a Client wish at any point to move Hosting away from ITCS or transfer a Domain name away from ITCS, a £60 admin charge per domain will be issued, which must be paid before the transfer takes place.
    • Registration Charges: All third party costs arising from the registration of a domain name shall be met by the client. ITCS reserve the right to retain Domain names if there are any sums outstanding or due by the client. ITCS agrees to transfer any domain names to the client immediately upon such request if all sums have been paid.
    • Search Engine Promotion: While ITCS will optimise the client’s site initially, making it search engine friendly, it is impossible to make any guarantees on ranking position. Without a separate agreement ITCS is not responsible for on-going web site promotion. The order in which websites are ranked in the natural search results is controlled by the search engines. Monthly SEO packages are advised to maintain high ranking sites.
    • Client Responsibility: The client agrees to make available as soon as is reasonably possible to ITCS, all materials for completing the site, to the agreed standard and within the set deadline. ITCS will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.
    • Travel Time and Travel Expenses: Travelling time to and from customer premises or other meeting places is not generally included in any quotations or estimates. ITCS reserves the right to make a charge for travelling time at the current hourly rate. Likewise ITCS reserve the right to charge for travelling expenses on a per mile basis.
    • Quotations: The price quoted to the client is for the work specifically agreed on the quotation only. Should the client decide that changes are required after work on the website has commenced such changes are to be agreed and any additional cost will likewise be agreed prior to the work being started. Unless otherwise agreed any quotation provided will be valid for 30 days from the date of issue.
    • Payment of Accounts: Unless otherwise specified, a deposit of 75% will be required from any new client before any development project is carried out unless agreed otherwise. Likewise, if a project is large or deemed to be of significant duration then interim payments may be required. ITCS reserves the right not to launch a website or software solution until full payment has been received. Any outstanding accounts for work carried out by ITCS or its affiliates are required to be paid in full, no later than 30 days from the date of the invoice. ITCS reserves the right, in its sole discretion, to deactivate hosting services for clients with unsettled accounts. When this occurs an additional minimum charge of £60 + VAT will be required to have the site restored. Any unpaid balance due shall bear interest at the rate of 8% per annum above bank of England base rate. Any costs of collection, including Court costs and reasonable legal fees shall be added as principal amounts to such balance.
    • Refund Policy: After work has started, and website development commences any fees paid are not refundable.
    • Cancellation: Should the client wish to cancel at any point during the project they shall remain liable for the work that has taken place and shall be invoiced accordingly. There are no exceptions to this, the client is still obliged to pay for the work that has been done up to the point of cancellation and in line with the agreement.
    • Payment Methods: Unless otherwise agreed, payment is only accepted by Direct Debit, direct bank transfer (BACS or CHAPS) in UK Pounds Sterling. Any bounce DD will incur an additional administration fee of £25 +VAT.
    • Support: Websites will be handed over as a fully functioning, completed work as per client signoff. Unless it has been agreed beforehand ITCS is not responsible for support. Support can be provided upon request for an agreed fee; this is highly recommended on content management sites. Websites are offered as a single contract and no guarantee of the availability or compatibility (including rendering compatibility with future browsers or future versions of existing browsers) from ITCS is offered unless an on-going support package has been agreed.
    • Malicious Activity: Problems caused by malicious software, spyware, viruses and website hacking are a fact of life on today’s Internet. It is highly unlikely that these will affect the client’s website, and ITCS will endeavour to protect it from this as much as possible during its creation, but after the website is handed over ITCS cannot be held responsible for problems caused by illegal activity or the actions of others.
    • Compliance with Ecommerce, Accessibility or Other Regulations: ITCS develops websites in accordance with the client’s specifications. It is the client’s responsibility to ensure that the website and its content comply with current online trading laws and regulations. ITCS cannot accept responsibility for any failure to comply with laws and regulations related to accessibility, selling online or those related to a specific business or trade. Research can be undertaken on the client’s behalf upon request, but in any business where complex compliance issues may exist it is recommended that the client takes legal advice.
    • Design Credit: A link to ITCS will appear in either small type or by a small graphic at the bottom of the client’s website. If a graphic is used, it will be designed to fit in with the overall site design. This link will provide the client with a quality inbound and outbound link and aid with search engine ranking. ITCS reserve the right to reference the client site in other promotional and marketing material unless otherwise agreed.
    • Variation to Terms and Conditions – These terms and conditions may be amended by ITCS from time to time (but not for the avoidance of doubt by any customers). The latest version of these terms and conditions may be accessed via the Website Design Centre Website
    • Sign Off – The customer acknowledges that ITCS will not be responsible for updating the website past the completion and sign-off of the website. Any further amends after this will be billable. The customer also acknowledges that they will accept or revert with review comments on all project deliverables within 2 business days of submission of the same. Delay in review or acceptance of deliverables would warrant delay in project schedule.
    • Termination – Termination of services by the Client must be requested in a written notice and will be effective on receipt of such notice. Telephone requests for termination of services cannot be honoured until we have confirmed in writing by post or email. The Client will be invoiced for design work completed to the date of first notice of cancellation for payment in full within thirty (30) days.
    • Severance – If any of these Terms and Conditions should be determined to be invalid, illegal or unenforceable then such Term or Condition will be severed and the remaining Terms and Conditions will remain in force.
    • Law – These terms and conditions and all other express terms of the contract with customers shall be governed and construed in accordance with UK law. UK Courts shall have jurisdiction in relation to any matters arising in connection with any contract between ITCS and the customer into which these terms are incorporated.
    • The above-named client is engaging ITCS, as an independent web developer contractor. The client hereby authorizes ITCS to access hosting and domain accounts, and authorizes the web hosting service to provide ITCS with “write permission” for the client’s webpage directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project. The client also authorizes ITCS to publicise their completed website to Web search engines, as well as other Web directories and indexes for SEO purposes.
    • Standard Website Package Elements. (For Standard Website Packages Only, please ignore reference to online stores.) ITCS includes the following elements in their Standard Website Packages:
    • Website Support & Maintenance Services (Only covered by web support package)
    • Website Hosting (All future hosting fees will be covered by the support package, management and support of the hosting will also be covered by ITCS as part of the package.)
    • Domain Name Renewal (This will be paid for by ITCS if we are the administrators, and invoiced on to you as the customer, this is subject to all invoices being clear on the account)
    • Content Management System (Unlimited access via web admin interface. This allows the user the ability to change images and text).
    • Copyright to Webpages. Copyright to the finished assembled work of webpages produced by ITCS is owned by ITCS. Upon final payment of this contract, the client is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the client, and remain the property of their respective owners. ITCS (UK) LTD retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios.
    • Reporting Domain Abuse
      We take domain abuse very seriously and are committed to ensuring the security and integrity of all domains registered under our Domain Registration TAG(s). If you encounter any instances of domain abuse, such as phishing, spamming, malware distribution, or any other malicious activities involving our registered domains, please follow the steps below to report the issue:
      Gather Information
      Domain name involved in the abuse.
      Detailed description of the abuse (e.g., phishing, spamming).
      Any evidence you have (e.g., screenshots, email headers).
      Submit a Report
      Email: Send an email to our abuse reporting address at [email protected].
      Include Contact Information
      Your name and contact information (email address or phone number).
      Any additional information that may help us investigate the issue.
      Our Response:
      Acknowledgement: We will acknowledge receipt of your report within 24 hours.
      Investigation: Our team will investigate the reported abuse thoroughly and take appropriate action.
      Follow-up: We may contact you for additional information or updates on the investigation.
      
      

17. Sole appointment

The customer shall not allow any person other than ITCS or one of its representatives to support the system(s).

18. Notice
    • Any notice given under the Agreement by the Customer to ITCS shall be provided in writing by post or email.
    • Any notice given under the Agreement by ITCS to the Customer shall be provided to the Customer as set out herein and in accordance with the contact details for the Customer stated in the Agreement. The Customer may change its contact details from time to time if required, by the provision of notice to ITCS.

19. Liquidated Damages For Direct Hiring of ITCS Employees:
    • If, during the term of this Agreement or for a period of twelve months thereafter, you as a Client directly or indirectly retains the services (whether as an employee, independent contractor or otherwise) of any employee of ITCS (or an ex-employee within twelve months of the employee’s termination from ITCS) who has provided services to you the Client on behalf of ITCS. Then you agree that ITCS will be damaged, given that the amount of this damage will be difficult to determine you agree to a fixed price. Accordingly, you the Client agree that for each such ITCS employee hired, you the Client will pay ITCS the annual salary of the employee set at the rate of them leaving ITCS. This amount is agreed as liquidated damages for training and the loss of an engineer to ITCS.

20. Governing Law
    • The Agreement shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.

Terms & Conditions

Technical Specification: For the most recent minimum system requirements for your computer(s) please contact the sales department on 08456 444 446 who will discuss the compatibility check procedure with you.

Pricing: AgentPro reserves the right to review license fees and package costs after the initial contract term. Where any change in price is implemented notice will be provided before payment is adjusted, at this point the customer reserves the right to exit the agreement if a price increase cannot be agreed.

For the avoidance of doubt, all prices quoted will always be exclusive of vat.

Assignment: The license may not be assigned to any other party without the written consent of AgentPro. Such agreement will not be withheld unreasonably.

Liability: AgentPro shall not accept liability claims or warranties given by third parties where:

1. a) the client makes modifications without consent of AgentPro in writing;
2. b) uses the software for purpose other than originally intended for;
3. c) where the software is used in conjunction with inadequate hardware;
4. d) or when payments fall into arrears.

Software Product Maintenance: The software is maintained with scheduled automatic releases. The software license is based on a per branch basis and priced as per the agreement on your order form.

Support: Support is available Monday – Friday during the hours 09.00 to 17.30, except on UK Bank Holidays and other public holidays. If times vary, we will publish the details in advance either on the AgentPro website or via the message viewer. Out of hours service is available but provided on outside of SLA. Services required outside the normal business hours for support may incur additional charges.

Data: Any data submitted to AgentPro for analysis, reconstruction and/or modification will be viewed under the strictest conditions of confidentiality; AgentPro is bound by the regulations of the General Data Protection Regulation (GDPR).

Free Upgrades: With a valid user license, system upgrades along with the latest documents and help files will be provided free of charge. NB: All on-site support or training along with re-installation services is chargeable. AgentPro are always introducing new features and upgrades to the software, these are delivered free of charge to all valid licence holders. Upgrades requested that fall outside of the AgentPro development plan may also incur additional charges.

Installation: During the process you must facilitate full access to your computer systems where appropriate. This service is designed to complement your existing IT Support. AgentPro accept no liability for any failure following our successful installation if the fault was not caused by the AgentPro software.

Legislation: The system and all documentation included with the software are provided as a guide, it is the customer’s responsibility to check legal documents before use. If, for any reason, it comes to the customers attention that, through a change in legislation or otherwise, the system or documents are no longer accurate, please advise AgentPro immediately.

Company Registration: AgentPro is a trading name of ITCS (UK) LTD Registered in England and Wales. Company Registration: GB 525 1472, Vat Reg. 826 6139 19. Copyright: The AgentPro Software that you are intending to use (the “Software”) is the subject of copyright protection and is not freeware or shareware. ITCS (UK) Ltd owns the copyrights in the Software. You are not permitted to copy or run it unless you have been granted a licence to do so by ITCS. ITCS is only offering you a Software Licence (the “Licence”). This allows you to use the Software in accordance with the terms and conditions. By signing this contract, you are agreeing to accept the Licence subject to the Conditions and confirm you have read them.

Licence Fees

The Licence Fee is payable by the Customer to ITCS on signature of the Order Form by the Customer. The Licence Fee includes the provision of Software Support from the Commencement Date to the end of any Initial Period or Extension Period.

Your Licence Fee also provides you with Software Support, and payable in accordance with the payment terms set out in the Order Form.

Website Hosting Fees do not form part of this agreement, you will need a separate agreement to cover additional services.

The SMS Service Fees are payable in accordance with the applicable payment terms set out on the Order Form. You are not obliged to use this service, this is an additional bolt on feature that can be disabled on request.

All other Fees are payable in accordance with the applicable payment terms set out on the Order Form.

The Fees shall be payable by the Customer without any set-off, deduction or any other form of withholding unless otherwise required by law.

If the Customer requests any re-installation of the software through no fault of AgentPro or an increase in the number of Branches required then ITCS shall have the right to charge additional Installation and Licence Fee.

Where external API calls are used i.e. Google Maps, Facebook, etc. These are provided on the boundaries set by the third party. AgentPro cannot guarantee these services, or any fluctuation in their fair usage policy.

Your Licence Fee also provides you with 25GB of storage per branch. Additional storage will be charged at £10.00 per 25GB.

Any unpaid balance due shall bear interest at the rate of 8% per annum above bank of England base rate. Any costs of collection, including Court costs and reasonable legal fees shall be added as principal amounts to such balance.

Software Support

Software Support is provided via the AgentPro helpdesk during normal Working Hours, conditional upon payment in full of all Software Support Fees and other money payable under the Contract or otherwise by the Customer to AgentPro, to:

Advise and assist the Customer in using the Software;

Investigate any Software Inadequacy;

Provide a remedy for any Software Inadequacy;

Provide Licence updates and improvements to the Software.

If the Customer wants to inform AgentPro of a Software Inadequacy, the Customer may contact AgentPro by:

Telephoning 08456 444 446; or

Raising a support ticket through the AgentPro online support tool with all information relating to the Software Inadequacy. Access to this portal will be setup on installation, if you have any problems accessing the portal, please call the above number.

Software Support does not include investigating or remedying or attempting to alleviate the consequences of:

The improper or negligent use, operation or neglect of the Software or use of the Software other than by a Permitted User;

The modification of the Software or its merger (in whole or in part) with any other software or any repair, adjustment, alteration or modification of the Software by any person other than AgentPro;

The use of the Software on inadequate equipment;

The failure by the Customer to implement recommendations previously advised by ITCS in relation to the use of the Software, or otherwise; It is advised that no software interfaces into AgentPro, and that all other software interface take a feed from AgentPro;

Any use copying or adaptation of the Software in breach of these Conditions or any other agreement between the Customer and ITCS;

The Customer’s failure to upgrade the Software with new versions of it in substitution for previous releases when recommended or prompted to automatically to do so by ITCS or the software;

The use of the Software for a purpose for which it was not designed;

Any problems caused by any third party software (being any software in respect of which ITCS is not the proprietary owner).

ITCS is under no obligation to provide a solution to any problem experienced by the Customer which is not a Software Inadequacy but if the Customer requests ITCS to investigate such a problem, this will be subject to an additional charge that will be notified to the Customer at the time of the Customer’s request. If ITCS investigates a suspected Software Inadequacy, but such investigation reveals that the problem is not a Software Inadequacy, then ITCS reserves the right to implement an additional charge.

If the Software Inadequacy is a Critical Inadequacy, ITCS will use all reasonable endeavours to resolve the issue following receipt by ITCS of details of the Software Inadequacy.

The Customer shall at all times during the term of the Contract for the provision of Software Support provide ITCS and its servants, agents, sub-contractors and employees remote access via such telecommunications links.

If at any time the Customer has not paid any part of the Licence Fee or Software Support Fees more than 30 days after they are due, the Customer is otherwise in breach of the Contract, then ITCS is entitled to suspend indefinitely the provision of Software Support at any time without formal notification without prejudice to any other remedy ITCS has under the Contract or otherwise and charge in full for any incentive discounts listed on the order form.

SMS Service

If so specified in the Order Form and subject to payment of the SMS Fees, ITCS shall provide an SMS function to the Customer, whereby the AgentPro software shall distribute SMS messages for the Customer. The content of the message and the management of how the system is used is the responsibility of the client.

Networks for the transmission of SMS messages and/or emails are not error, fault or bug free nor secure from persons wishing to misuse, tamper with, erase, alter or in any other way corrupt SMS messages and/or emails, and the data, information and records they display, retrieve, collate, transfer or disseminate may be affected by such occurrences and the Customer agrees with ITCS that ITCS shall have no liability to anyone for any such occurrences arising in respect of or in relation to the provision of the SMS Service, in particular the delay to or no receipt of any SMS message sent via the SMS Service

Customer Obligations

The Customer shall:

not under any circumstances copy transmit or reveal or permit or suffer to be copied transmitted or revealed any Access Code or Password to any person other than a reliable permanent employee of the Customer to whom the Access Code or Password needs to be revealed to permit the Customer to make Permitted Use of the Software. The Customer is responsible for all use of its Access Code and/or Passwords, whether or not such use was actually or expressly authorised by the Customer;

not use or permit or suffer the Software nor the Documentation to be used for any purpose other than the Permitted Use, and whenever it becomes aware that this restriction has or may have been breached the Customer shall promptly inform ITCS in writing;

before each Software Support Renewal Date, inform ITCS of any requirement to increase the number of Permitted Users;

ensure that the configuration of hardware, firmware and software on, under or with which the Software is run is sufficient in functionality and performance and shall ensure that all the normal procedures and precautions relevant to a computerised system, including but without limitation those relating to physical and electronic security, confidentiality and the taking of frequent regular backups are observed and performed;

ensure that the Software is correctly used and that the Customer’s employees are properly trained to use the software to carry out their daily tasks, if they are to log a fault they will need to have an understanding of what they are trying to do with the software and re-trace their steps to allow us to provide assistance;

check the output of the Software to ensure that the Software is operating correctly before commercial use;

not reproduce any copy (whether in machine or human readable form) of the Software or the Documentation, or ITCS copyright and trade mark notices and shall not remove or alter any copyright, trade mark or other proprietary notice or mark on any of the Software or Documentation;

without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and Intellectual Property Rights of ITCS in the Software and the Documentation;

notify ITCS immediately if the Customer becomes aware of any unauthorised use of the whole or any part of the Software, Access Code or a Password by any third party;

not translate, adapt, modify, disassemble, decompile, reverse engineer or create derivative works from the Software;

not assign, transfer, sell, lease, rent, charge, or hold the Software or the Documentation on trust for any third party or otherwise deal in or encumber the Software or the Documentation or make them available to any third party;

not use any version of the Software after the period for which it was designed expires;

obtain and maintain, at its own expense, all computer hardware, software, communication and access lines necessary to use the Software for the Permitted Use;

indemnify and keep indemnified ITCS against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any breach of the Customer’s obligations under the Contract and the Customer’s warranties contained in these Conditions;

use the Software in accordance with all relevant laws and regulations including without limitation those relating to the protection of personal data.

The Customer undertakes to:

comply with ITCS’ rules and requirements relating to the Customer’s use of the Software, the Website and all services provided by ITCS pursuant to the Contract from time to time and acknowledges and agrees that ITCS is entitled at any time and without notice to remove the Website from ITCS or its appointed service provider’s server and/or bar access to the same in the event of any violation or alleged or suspected violation of such rules and requirements or if otherwise authorised so to do by a competent Authority;

use the Website and all services provided by ITCS under the Contract in accordance with ITCS’ instructions;

keep full security copies of all data processed by the Website in accordance with best computing practice;

ensure that all the Customer’s staff who use the Software, Website and/or On-line Backup Service are properly trained in respect of such use;

refrain from:

(a) sending mass unsolicited communications (“spam”);

(b) sending Malicious Code or other disruptive programs or devices;

(c) illegally copying software or other proprietary material;

(d) violating the security of any website or engaging in unauthorised decryption of protected material.

The Customer represents, warrants, undertakes and agrees with ITCS as follows:

the Customer is the sole author and creator of the Content and the sole unencumbered absolute legal and beneficial owner of all Intellectual Property Rights in the Content and other rights of whatsoever nature in the Content throughout the world and is and shall remain at all material times during the creation of the Content a “qualifying person” within the meaning of the CDPA;

the Content is original to the Customer and does not and shall not infringe any Intellectual Property Rights or any other rights whatsoever of any person;

the Content is not under the laws of any legal jurisdiction obscene or blasphemous or offensive to religion or defamatory to any person and does not contain any material which has been obtained in violation of the Interception of Communications Act 1985 the Official Secrets Act 1989 the Regulation of Investigatory Powers Act 2000 or any analogous foreign legislation and nothing contained in the Content would if published constitute a contempt of Court;

all information contained in the Content is true, accurate and complete in all respects;

the Customer will ensure that the Website and the Customer’s use of the SMS Service will fully comply with all laws for the time being in force and the Advertising Standards Authority’s codes of practice, rules and regulations from time to time including without limitation the British Codes of Advertising Sales and Sales Promotion and any applicable legislation relating to distance selling, and that the Content will at all times during the continuance of this Agreement comply with all such laws, rules, codes of practice and regulations and will not be defamatory, obscene, blasphemous or be in breach of any other applicable laws, statutes, regulations or rules of any other governmental, regulatory or other authority;

the Customer is responsible for reading their own website to ensure content is correct. AgentPro updates the website when changes are made to live properties. Portal feeds are scheduled and controlled by the portal provider, any delays with portal uploads are outside of the control of AgentPro.

the Customer’s use and operation of the Website and the SMS Service will fully comply with the provisions of all applicable laws relating to the sale of goods and services over the internet;

the Customer shall indemnify ITCS and keep ITCS at all times fully indemnified from and against all actions proceedings claims demands costs (including without prejudice to the generality of this provision the legal costs of ITCS on a solicitor and own client basis) and other liabilities however arising directly or indirectly as a result of any breach or non-performance by the Customer of any Customer’s undertakings covenants warranties or obligations under these Conditions;

If the Customer shall fail to comply with any of the provisions set out in Conditions, then ITCS may on written notice forthwith suspend the provision of the software or any web hosting Service and/or the SMS Service until such failure has been remedied (if it is capable of remedy). If the breach is not capable of remedy, ITCS shall have the right to terminate the Contract either in whole or in relation to the provision of a single Agreement/Service.

Intellectual Property Rights

The Software and the Website (excluding the Content) and all Intellectual Property Rights in the Software and the Website (excluding the Content) are and shall remain the exclusive property of ITCS.

The Customer acknowledges and agrees that ITCS may access and use example data, processed by the Customer using the Software. This will only ever be used for in house training or demo purposes.

Warranty

ITCS warrants that its title to and property in the Software is free and unencumbered and that it has the right, power and authority to license the same upon these Conditions.

ITCS warrants that it will perform all services which ITCS performs pursuant to the Contract with reasonable care and skill.

ITCS does not warrant that the Software does not contain bugs, errors, or defects and in the event that the Customer reports a defect to ITCS the Customer hereby agrees to afford ITCS not less than 30 days in which to remedy any such bugs, errors, or defects and no such bug, error, or defect shall entitle the Customer to repudiate the Contract.

ITCS makes no warranty and the Customer acknowledges that no warranty is given expressly or impliedly that the Software will meet the Customer’s data processing requirements or that the operation of the Software will be uninterrupted or error free.

The Customer accepts that the Software was not designed and produced to the Customer’s individual requirements and that the Customer is ultimately responsible for its selection.

The Software is a tool to aid the Customer, but the Customer should satisfy itself of the accuracy of any figures calculated using the Software and the correctness of any forms completed using the Software. The Customer is responsible for ensuring that any forms and/or documents comprised within the Software are suitable for each purpose for which the Customer may use them. ITCS will not be under any liability if the Software is used in a manner in breach of these Conditions.

ITCS will have no liability to the Customer or any third party for any service provided by the Customer to anyone. The Customer shall have sole responsibility for the service that it provides to its clients.

The Customer acknowledges and agrees that the Customer is not responsible for checking the accuracy of the data that is processed using the Software or that is entered by ITCS in the course of providing services to the Customer. Accordingly, ITCS shall have no liability for any errors in or omissions from such data.

The Customer acknowledges and agrees that:

while every effort is made to ensure our software is tested before release, computer software is not guaranteed to be error, fault or bug free, nor secure from persons wishing to misuse, tamper with, erase, alter or in any other way corrupt computer systems and that the data, information and records they display, retrieve, collate, transfer, calculate or disseminate may be affected by such occurrences, and the Customer agrees that ITCS shall have no liability to the Customer nor to any other third party for any such occurrences arising in respect of or in relation to the Software;

while every effort is made to ensure the hardware used provides excellent performance, computer servers including the backup server are never claimed to be fault free, bug free, nor secure from persons wishing to misuse, tamper with, erase, alter or in any other way corrupt servers, and the data, information and records they display, retrieve, collate, transfer or disseminate may be affected by such occurrences and the Customer agrees with ITCS that ITCS shall have no liability to anyone for any such occurrences arising in respect of or in relation to the servers. While this is the case ITCS do guarantee a 99% uptime on these servers.

Subject to the foregoing, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of the Software or the Website, and the provision of the Software Support, the Website Development Service, the Website Hosting Service, the SMS Service and the On-line Backup Service are hereby excluded to the fullest extent permitted by law

Ongoing Account Management

As a company that values its customers, ITCS is justifiably proud of the quality of service we provide. We are committed to providing our customers with a helpful and friendly service with on-going support whenever needed. To aid with this, and to make sure you get the most from our services you are assigned an experienced account manager. They will be there for you to ensure any requirements are effectively managed throughout the entire journey with us.

Confidentiality & GDPR

Neither party shall disclose to any other party, any information in connection with the provision of the service or any information contained in the agreement, other than in compliance with the agreed information format specified in compliance with the provisions of the General Data Protection Regulation (GDPR).

As the customer, you are the Data Controller in respect of the Company Personal Data and shall retain overall control of this data.

AgentPro are the Data Processor in respect of the Company Personal Data and shall act on the instruction of the Data Controller with regard to the processing of the Company Personal Data.

The Data Processor will not use the Company Personal Data for any other purpose other than in accordance with the instructions of the Data Controller and will not disclose the data to any third party.

The Data Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes set out in the original contract, and to comply with Applicable Laws in the context of that individual’s duties to the Data Processor, ensuring that all such individuals are subject to professional obligations of confidentiality.

The Data Processor and the Data Controller shall in relation to the Company Personal Data, implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In assessing the appropriate level of security, the Data Processor shall take account in particular of the risks that are presented by Processing, specifically risks associated with a Personal Data Breach.

Personal Data Breach – The Data Processor shall notify the Data Controller without undue delay upon becoming aware of any Personal Data Breach affecting the Personal Data of any client of the Data Controller, providing sufficient information to allow them to meet their legal obligations to report the breach to the Information Commissioner and / or inform a Data Subject of the Personal Data Breach.

Sub-processors – The Data Processor shall not appoint (nor disclose any Company Personal Data to) a proposed Sub-processor except with the prior consent of the Data Controller.

Data Subject Rights – AgentPro provides the tools you need to record who has requested the data access, escalate the request to a manager for authorisation, then produce an electronic file the can be provided to the Data Subject

GDPR Impact Assessment and Prior Consultation – As the Data Processor AgentPro will provide reasonable assistance to the Data Controller with regards to any Data Protection Impact Assessments which relate to AgentPro.

Deletion – The Data Processor shall promptly and in any event within one month of the date of cessation of any Services involving the Processing of Company Personal Data delete all copies of the Company Personal Data, free of charge and notify the Data Controller of the deletion.

Return of Company Personal Data – As the Data Controller with an active licence, you can export the data into an electronic file format via AgentPro. Where contract termination notice has been provided, bespoke requests for specific file formats other than the ones provided via the AgentPro software will be at an additional development cost.

Restricted Transfers – The Data Processor will not use any server based outside of the UK for the purposes of this contract in relation to data storage, without prior consultation with the data controller.

Limitation of Liability

ITCS entire liability in respect of any claim relating to the Software, the Software Support, the Website Development Service, the Website Hosting Service, the SMS Service, Backups and/or any other services performed pursuant to the Contract shall be limited to damages of an amount equal to the total Fees paid by the Customer to ITCS during the previous three month period.

ITCS shall not be liable to the Customer in respect of the Software, the Software Support, the Website Development Service, the Website Hosting Service, the SMS Service and/or any Backup Service or otherwise under or pursuant to the Contract for any loss of profits, loss of data, goodwill, turnover or any type of special indirect or consequential loss (including without limitation loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or ITCS had been advised of the possibility of the Customer incurring the same.

ITCS shall not be liable for any damage or losses or for any additional damage or losses arising from any of the circumstances set out in the licence agreement. Nor for any delays in meeting its obligations due to causes beyond its reasonable control.

ITCS shall have no liability to the Customer for any loss or damage incurred after the Customer became or should have become aware of a bug or error in the Software, the Website, the SMS Service and/or any Backup Service. The Customer shall comply with any instructions issued by ITCS to suspend the use of the Software, the Website, the SMS Service and/or the On-line Backup Service while any bug or error is remedied.

The Customer declares and acknowledges, that the Customer has considered the provisions of this section in detail. The customer considers these terms to be reasonable in the circumstances, having taken into account among other factors the subject matter of the Contract. The customer also acknowledges having obtained or had the opportunity to obtain independent legal advice on the same.

Termination

ITCS reserves the right to terminate the licence if:

                       the Customer shall be in breach of the Contract in any way; or

there shall be any breach or non-performance or non-observance of any of the covenants on the part of the Customer contained in these Conditions or in any document supplemental to these Conditions; or

the Customer (being an individual or if more than one individual then any one of them) has a bankruptcy petition presented against him or is adjudged bankrupt; or

the Customer (being a company) has a winding up petition or petition for an administration order presented against the Customer or passes or resolves to pass a winding up resolution (save for the purpose of amalgamation or re-construction of a solvent company) or an administrative receiver or a receiver or a receiver and manager is appointed in respect of any of the Customer’s property or the Customer goes into administration; or

the Customer enters into any arrangement for the benefit of the Customer’s creditors or has any distress or execution levied on the Customer’s goods; or

the Customer sells or disposes in any way of the whole or any substantial part of the Customer’s business by one or a series of transactions, persons then ITCS may terminate the Contract forthwith.

If the Licence is provided on a rental basis then:

the Customer shall have the right to terminate the Licence by giving ITCS at least 90 days prior written notice before the renewal of any Extension Period, such notice can only be served after the initial term in line with the Commencement Date; and

ITCS shall have the right to terminate the Licence at any time if the Customer fails to pay the Software Support Fees by the due date and fails to remedy such default within ten Working Days of notice issued by ITCS requiring the Customer to do so.

Any re-instatement of the licence after a breach, is chargeable at £65. This is to cover administration costs, in handling the breach and the re-instatement of the AgentPro licence to re-activate the software and database.

At any time ITCS may, by giving not less than 90 days written notice to the Customer after any initial period terminate the provision of Software Services.

Following termination of the Contract by ITCS, the Customer shall have no right to a refund in respect of any Fees.

The Customer acknowledges and agrees that whenever the Licence terminates then the Customer shall immediately cease use of the Software. If a data export is needed, this can be done by the customer by exporting the data to excel. Two full data exports of the data can be created as transportable csv files on request. Please note there is a charge of five hundred pound plus VAT in order to carry out this work.

The obligations on the Customer contained in these Conditions relating to confidentiality of the Access Code, the Password(s) the Software, the Documentation and any confidential information of ITCS shall not be affected or prejudiced by the termination of the Contract.

If the client wishes to terminate within 30 days, all discounted work undertaken for set-up, training and installation is then billable at the full price.  

Additional Terms

If any Condition Sub-Condition or any other provision of these Conditions is invalid under any applicable statute or rule of law such provision shall to that extent be deemed omitted.

Any failure by ITCS to enforce any provision of the Contract shall not be construed as a waiver of such provision or of a right thereafter to enforce the same.

The Customer acknowledges that in entering into the Contract the Customer has not relied on any warranty, representation, undertaking or agreement other than those contained or referred to in these Conditions and/or the Order Form. The Customer waives any right or remedy the Customer may have to claim damages or rescission for any misrepresentation in respect of any representation not contained in these Conditions, and/or the Order Form. The Customer acknowledges that only remedies against ITCS are for breach of contract and subject to these conditions, provided always that nothing in this Condition shall exclude or limit ITCS’ liability to the Customer in respect of any fraudulent misrepresentation, or warranty fraudulently given and upon which the Customer can prove they had placed reliance on. Subject to the foregoing, these Conditions and the documents referred to herein constitute the entire agreement and understanding between the parties with respect to all the matters which are referred to in these Conditions.

The Contract and these Conditions shall be governed by English Law and the parties agree to submit to the non-exclusive jurisdiction of the English Courts.

The Customer shall not be entitled to assign sub-license delegate nor hold for the benefit of any other person or otherwise transfer the Contract nor any of the Customer’s rights or obligations under the Contract nor sub-license or permit or suffer the use (in whole or in part) of the Software and/or the Website without the prior written consent of ITCS.

Notwithstanding anything to the contrary contained in these Conditions, the parties agree and intend that the Contract shall not create any rights enforceable by any person not a party to it.

Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

References to persons in these Conditions can include companies, associations, partnerships and all other legal entities or groups of legal entities.

The headings in these Conditions are included for convenience and shall not affect the meaning of these Conditions.

All notices to be given by either party to the other under the Contract shall be given by email. Notices to ITCS shall be sent in writing, with notices to the Customer being sent to the email address notified by the Customer to ITCS. Each party is responsible for informing the other party of any changes to their email address.

Availability of a customer contact is required prior to commencing work on a help desk ticket. This is normally the person who initiated the ticket. The customer contact is responsible for relaying pertinent details of the reported problem to the ITCS support technician. The customer contact must be available as needed for review of completed work. The customer specifically understands that a Service Level Agreement is in place, and is based on business processes.

Late payment – Without prejudice to any other rights of Company, in the event of the Customer failing to pay any sums due to Company on time or at all, notwithstanding notification by Company of the overdue debt to the Customer, Company shall be entitled to:

(a)   charge interest (both before and after any judgment) on amounts overdue from the Customer under the Agreement from the due date until the payment is actually made at the rate of 8% per annum over the base rate of Barclays Bank plc for the time being during the relevant period; and

(b)   suspend the provision of the relevant Service(s) until such time as all payments due including all interest accrued has been paid and satisfied in full.