Sales & Maintenance Terms & Conditions

Future Voice & Data Limited – Terms and Conditions – Sales and Service Level Agreement

Background:

Future shall supply Equipment and Services as requested by the Customer in accordance with the terms and conditions of this Agreement.

It is agreed as follows:

Definitions

In this Agreement the following definitions shall have the following meanings:

“Future” Future Voice & Data Limited (company registration number 05323406) of 3120 Park Square, Birmingham Business Park, Birmingham, B37 7YN.

“Agreement” These Conditions together with any Order Form referable to these Conditions.

“Change Request” a request for a change made by Customer or Future.

“Charges” the charges to be paid by customer to Future in respect of goods and services supplied upon Customer’s request (Including without limitation those charges set out in an order form).

“Conditions” these Future Voice & Data Limited Terms and Conditions.

“Customer” Party named as such on the Order Form.

“Customer Facilities” all hardware, software, ancillary equipment, telecommunications, storage and other facilities owned or controlled by Customer.

“Delivery Address” the address stated in an Order Form to which Equipment will be delivered.

“Documentation” any specifications, technical manuals, user instructions or other documentation supplied by Future.

“Equipment” the equipment detailed in an Order Form.

“IP Right” any copyright patent, registered design, trademark or other intellectual property right (or applications therefore) of whatever nature subsisting anywhere in the world.

“Manufacture” the manufacture of equipment.

“Order Form” an order form referable to this Agreement which describes the Equipment and Services and confirms certain details of this Agreement.

“Proper Use” the use of Equipment strictly in accordance with Documentation and/or any Instructions or recommendations notified by Future from time to time.

“RPI” means the Retail Price index being the general Index of retail process published by the Office for National Statistics each month in respect of all items.

“Services” the services identified in this Agreement to be supplied to Customer by Future in consideration of related Charges.

A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

Words in the singular include the plural and in the plural include the singular.

Headings do not affect the interpretation of these Conditions.

  1. Applications of conditions/Scope of Agreement
    1. Subject to my variation under clause 1.3 the Agreement shall be on these Conditions to be exclusion of all other terms and conditions (including any terms or conditions which the customer purports to apply under any purchase order, confirmation of order, specification or other document.
    2. No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Agreement simply as a result of such document being referred to in the Agreement.
    3. These Conditions apply to all Future’s sales and any variation to these conditions and any representations about the Equipment or Services shall have no effect unless expressly agreed in writing and signed by a director of Future. The Customer acknowledges that it has not relied on any statement; promise or representation made or given by or on behalf of Future which is not set out in the Agreement. Nothing in these conditions shall exclude or limit Future’s liability for fraudulent misrepresentation.
    4. Each order or acceptance of a quotation by the Customer from Future shall be deemed to be an offer by the Customer to proceed subject to these Conditions.
    5. No order placed by the Customer shall be deemed to be accepted by Future until a written acknowledgment of order is issued by Future or (“earlier”) Future delivers the Equipment and /or Services to the Buyer.
    6. In consideration of the payment by the Customer of charges and any other sums due from customer, Future shall supply the Equipment and Services as described in this Agreement. This Agreement will be binding when signed by a Director of Future.
    7. Future shall carry out the obligations set out in clause 1.1 with reasonable skill and care and in accordance with an Order Form.
    8. Unless expressly agreed in writing by Future time for performance of any obligation by Future shall not be of the essence of this Agreement.
    9. Customer acknowledges that Future will supply the Equipment and Services at the request of Customer and that it is Customer’s responsibility to determine whether the Equipment and services are suitable for its requirements.
    10. Subject to any variation permitted in accordance with these Conditions, the Agreement will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).

2 Terms of Payment

2.1 In consideration of Future supplying Equipment and Services, the Customer shall pay to Future the Charges subject to the terms of this Agreement. When signed by a director of Future “The Company” this order forms a binding contract and may only be cancelled with written consent of a director of “The company” (Which consent shall be within “The company’s” sale and absolute discretion) and the payment of a cancellation charge equal to 20% of the recommended retail price of any equipment plus any installation costs incurred.

2.2 Payment of sums due from the Customer of Future shall be made within thirty (30) days of the receipt of an invoice from Future. All payments hereunder shall be made in Pounds Sterling.

2.3 charges are expressed exclusive of all duties and taxes including without limitation value added tax which shall be paid by the Customer at the rate and in the manner provided by the law governing this Agreement.

2.4 Future reserves the right to increase the Charges payment in respect of Equipment to reflect any increase in cost to Future which is due to any factor beyond Future’s control (such as, without limitation, any foreign exchange fluctuation , currency regulation, alteration of duties) provided Future gives written notice to the Customer at any time.

2.5 Future reserves the right to increase the charges payment in respect of Services on each anniversary of this Agreement up to ten percent (10%) or, if greater, by a percentage equal to the percentage increase in RPI over the preceding 12 months.

2.6 In the event that customer fails to pay any sum by the due date Future reserves the right to charge interest on the outstanding amount at the rate of the percent (5%) above Barclays Bank PLC base rate per month calculated at a daily rate from the date the payment became due until actual payment is made (irrespective of whether the date of payment is before or after any judgment or award in respect of the same).

2.7 Both parties acknowledge that time for payment of charges is of the essence of this Agreement. Notwithstanding clause 2.0. If customer fails to pay any sum by the due date Future may at its option and without prejudice to any other remedy at any time after payment has become due, termination or suspend performance of this Agreement.

2.8 If Future shall terminate this Agreement for any reason, any sums (including interest for the late payment) will immediately become payable in full.

2.9 This Agreement is strictly subject to credit clearance in respect of the Customer and Future may forthwith terminate this Agreement if it is not satisfied with such credit clearance in its sale discretion. All required documentation as directed by Future (or any third party finance company) must be fully completed by the customer within 7 days of the date of the Order Form or delivery of Equipment, whichever is the earlier.

3 Delivery and Installation

3.1 Delivery and installation of Equipment shall be made at the Delivery Address.

3.2 Future shall use all reasonable endeavours to delivery Equipment upon any delivery date indicated in an Order Form or as soon thereafter as is possible. If delivery will be before or after the delivery date indicated in an Order Form Future will use reasonable endeavours to give Customer not less than 24 hours’ notice of the actual delivery date.

3.3 Upon delivery Customer shall make available to Future (or Future’s delivery agent) free of charge such labour and equipment as is required to effect delivery and installation of Equipment at the Delivery Address. Upon completion of delivery Customer shall be solely responsible for the removal and disposal of all packing cases and other containers in which Equipment was delivered and upon completion of installation customer shall be solely responsible for making good and cleaning the premises.

3.4 Unless Customer notifies Future in writing of a material fault within the Equipment within 7 days following delivery Customer shall be deemed to have accepted the Equipment. The Customer agrees that 7 days is a reasonable period for the purpose of inspecting the Equipment and testing the same of material faults.

3.5 Any Goods ordered in error will incur a handling fee of £10.00 plus VAT per item or 20% of the total order cost whichever is the greater. Such errors must be notified to the authorised returns department within 7 days of the receipt of the goods/ provisional system installation date in writing. Systems which have been installed and accepted onto your premises are not returnable. Goods ordered in error and not returned within 30 days must

be paid for in full.

3.6 Any cancellation of goods ordered must be notified to us, in writing before the goods are dispatched or installed. Future reserves the right to levy a cancellation charge in accordance with the scale stated in clause 3.5.

4. Risk and Ownership of Equipment

4.1 Unless otherwise specified in an Order Form all Equipment supplied pursuant to this Agreement is leased to the Customer. It is the Customer’s sole responsibility to agree appropriate arrangements for third party finance as required by the Customer.

4.2 Risk in Equipment shall pass to Customer upon delivery.

4.3 In respect of Equipment that is leased to the Customer, the Equipment shall remain the property of Future or any third party finance company to which Future has transferred ownership (“Owner”) at all times and the Customer shall deliver up the Equipment to Future (or its third party finance company) upon termination or expiry of this Agreement. In the event of a failure by the customer to do so, Future (or the Owner) shall (without prejudice to any other legal remedies it may have) be entitled to enter upon the Delivery Address or any premised under Customer’s control (without notice to Customer) and remove Equipment. With effect from delivery the Customer shall upon request by Future insure the Equipment for its full replacement value with such insurance company as Future shall approve (such approval not to be unreasonably withheld) and shall provide a copy of the insurance certificate to Future which certificate shall have Future for its third party finance company) endorsed thereon as loss payee.

4.4 In respect of Equipment sold to the Customer, title to Equipment shall not pass to Customer until the date that Charges (and any additional sums payable by customer pursuant to this Agreement) and value added tax thereon have been paid in full to Future.

4.5 (Except in respect of Equipment to which title has passed to the Customer pursuant to this Agreement) the Customer shall not be entitled to sell, transfer, lease, charge, assign by way of security or otherwise deal in or encumber Equipment and the relationship between Future and Customer in respect of Equipment including any proceeds of sale or other consideration therefore be a fiduciary one. The customer also agrees to pay Future for the collection of each item of Equipment at the end of the lease or on termination of this Agreement at a cost of £450.00 + VAT.

4.6 If the Customer fails to effect payment in full of all sums due here under by the due date then Future (without prejudice to any other legal remedies it may have) shall at any time thereafter be entitled to enter upon the Delivery Address or any other premises under Customer’s control (without notice to Customer) and remove Equipment. This also includes remotely accessing the telephone system and disabling any/ all functionality.

4.7 If in breach of this clause 4 the customer sells (1) Equipment that is leased, or (2) Equipment that to be sold prior to title passing to the Customer then any proceeds of sale in respect thereof and all rights arising under or in respect of said sale shall be held (in the case of the proceeds of sale in a separate account) by Customer as trustee for Future (or the Owner).

5. Customer Facilities

5.1 Customer shall test Customer Facilities, ensure that Customer Facilities are complete and in good working order, ensure that all specifications are not less than the minimum determined by Future. Upon a date to be notified by Future, Future may inspect Customer Facilities at the Customer’s premises in accordance with the terms of this Agreement.

5.2 Future shall indicate to Customer in writing whether customer Facilities are suitable for the purpose of Future supplying and installing the Equipment and supplying the Services and, if Customer Facilities are not suitable, the necessary steps to be taken by customer (at Customer’s expense) to make Customer Facilities suitable.

5.3 Customer shall use reasonable endeavours to complete any work notified by Future at each location within seven (7) days of notification by Future and in particular to reflect any Future requirements.

5.4 Future may perform repeat inspections (and the procedure outlined in this clause 5) until Future is satisfied that Customer Facilities are suitable for the purpose of Future supplying the Equipment and Services.

6. Customer’s Obligations

6.1 Customer shall (in each case insofar as is reasonably necessary to enable Future to effectively carry out its obligations under this Agreement).

6.1.1 Make available to Future free of charge such computer and communications facilities, office facilities and services and suitable office space as requested and obtain all access rights required by Future;

6.1.2 Ensure that its employees or other independent contractors co-operate reasonably with Future and its employees;

6.1.3 Promptly furnish Future with such information (including without limitation IP addresses) and documents as requested;

6.1.4 Pay all Charges property involved by Future;

6.1.5 take all reasonable steps to ensure the health and safety of Future employees, agents or independent contractors subject to such employees, agents or independent contractors complying with any Customer health and safety policy notified in writing by Customer;

6.1.6 Ensure that any IP rights which Future is required to use or modify in order to supply Maintenance Services is/are other proprietary to Customer or properly licensed to Customer and that Future is properly authorised to use or modify the IP Rights. Customer shall indemnify and hold harmless Future in respect of any costs, expenses, damages, third party actions or claims arising out of any actual or alleged infringement of third party IP Rights by Future or customer.

6.1.7 Ensure the adequate electrical power is supplied to the Equipment;

6.1.8 Store and maintain Equipment in accordance with Documentation;

6.1.9 Keep the external surfaces of the Equipment clean and in good condition;

6.1.10 operate the Equipment strictly in accordance with Documentation and ensure that only competent and trained persons operate the equipment;

6.1.11 not make any addition, modification or adjustment to the Equipment without the prior written consent of Future;

6.1.12 use only media and consumables approved by the Manufacturer or by Future in writing (Future’s approval not to be unreasonably withheld); and

6.1.13 ensure that only Future’s personnel are permitted to maintain, service or carry out adjustments to the Equipment.

6.2 The Customer is solely responsible for maintaining Customer facilities in order that the Equipment functions in accordance with Documentation.

6.3 The definitions used in clause 6.4 will have the same meanings as in the Waste Electrical and Electronic Equipment Regulations 2006 (“WEEE Regulations”).

6.4 In respect of Equipment sold by Future to Customer, save for ‘WEEE’ from private households, Customer will at its own cost be responsible for the collection treatment recovery and environmentally sound disposal of the Equipment in accordance with the WEEE Regulations and any other statue, regulation or other legal requirement issued or made in connection with the WEEE Regulations as modified from time to time.

7. Warranties and Liability

7.1 Future warrants that the Equipment will be in good working order at the time of delivery and will be free from defects in materials and workmanship for a period of 3 months from the date of delivery.

7.2 Future does not offer any further product guarantee beyond the provisions of clause 7.1. Each individual manufacturer offers warrantees relating to their own product. Customers are strongly advised to consider the terms of the product warrantees and their implications before ordering the goods.

7.3 Future shall be under no liability under the warranty in clause 7.1 in respect of any defect arising from fair wear and tear, misuse, abuse, the use of unsuitable consumables or failure to follow written instructions relating to the Equipment, or any alteration or repair to the Equipment without Future’s approval.

8. Services

8.1 Future shall supply the Services for the period set out in an Order Form or otherwise (if no such period is set out in an Order Form) for a minimum period of 60 months. Thereafter Future shall supply the Services for successive 36 months periods subject to termination by either party giving not less than 90 days prior to written notice, such notice not to have effect earlier than the end of any agreed period.

8.2 The Services comprise the following:

8.2.1 In respect of Equipment that comprises a telephone system (“Telephone System”) Future agrees to maintain the Telephone System during normal working hours during the term to which the Customer pays Charges for such Services. Repairs will be made free during this period except where accidental damage, lighting strike, neglect or abuse occurs. Services includes maintenance of the system central control unit, system cabling and system key telephones. Services does not include maintenance of any other item including without limitation non-proprietary handsets, headsets, modems, music on hold, connected computers and computer interfaces, computer software and middleware, cordless telephones. PA systems, door intercom equipment and other ancillary equipment which may be covered under the terms of the Manufacturer’s guarantee unless otherwise stated overleaf. Any Equipment added at a later time may increase the Charges payable in respect of Services. Following the guarantee period, if the Telephone system is not subject to maintenance Services under this Agreement, repairs will be charged for at Future’s current list prices (this will include diagnostic checks and alterations made by remote access). Any reprogramming or new provisions will be charged to the customer.

8.2.2 In respect of any Equipment comprising a voice mail system (“Voice mail System”) Future agrees to maintain the Voice Mail System during the term in which the Customer pays Charges for such Services. Repairs will be made free during this period except where accidental damage, lighting strike, neglect or abuse occurs, or the fault is due to Customer error. Any reprogramming of or new provisions in relation to the Voice Mail System will be charged to the Customer.

8.3 Upon a request by the Customer, Future shall at the earliest practicable opportunity, cause technical staff to attend and/ or repair the Equipment during Future’s normal working hours. Future will use reasonable endeavours to respond to faults that Future considers to be major faults within either 8 working hours (where the customer orders Silver Services) or 4 working hours (where the customer orders Gold Services) as appropriate and where possible and otherwise within 16 working hours, Working hours are between 09:00 to 17:00 hours Monday to Friday excluding Bank Holidays.

8.4 Services shall not include the supply of consumable items which shall be payable in addition by the Customer at Future’s prevailing rates which are available on request.

8.5 To assist the customer to reduce ongoing call charges Future will automatically configure all new systems to route via their partners discounted calls network. Providing a contract has not been signed, this service can be cancelled within 7 days providing the request has been received in writing.

9. Exclusions

9.1 Services does not include any work made necessary by the following (for which Future may charge in addition at agreed rates):

9.1.1 Design defects in the Equipment or faulty manufacture, materials or workmanship;

9.1.2 fault or defect occurring in any equipment not supplied and/or supported by Future including without limitation network line faults and faults in BT or other third party equipment and facilities;

9.1.3 Use of Equipment outside Proper use:

9.1.4 Accident, fault, act or omission of any person other than Future;

9.1.5 Use of Equipment in excess of any maximum usage specified by the Manufacturer;

9.1.6 Failure of electrical power (including power surges or power cuts), air conditioning, humidity or other environmental controls;

9.1.7 Electrical work external to any Equipment:

9.1.8 Damage by vandalism, fire, water or adverse weather conditions;

9.1.9 Movement or relocation of the Equipment not performed by or on behalf of Future;

9.1.10 furnishing of the Equipment with accessories or attachments, painting or finishing the equipment or removing accessories or attachments;

9.1.11 breach of the Customer obligations in this Agreement;

9.1.12 hardware, accessories, attachments, machines, systems or other devices not referred to in an Order Form;

9.1.13 rectification of lost or corrupted data arising for any reason other than Future’s own negligence;

9.1.14 maintenance services rendered more difficult because of any changes, alterations, additions, modifications or variations to Customer Facilities;

9.1.15 a failure of Customer to maintain comprehensive and fully operational back-up of all Customer data; and

9.1.16 diagnosis and/or rectification of problems not associated with Equipment supported by Future under this Agreement.

9.1.17 Future will install software and applications to the customer’s LAN/WAN infrastructure, it will remain the customer’s responsibility to ensure that it is available and complete at the time of Future’s installation and the customer will be responsible to ensure the network is maintained in order that all applications and software are able to run at their optimum level. Any faults found to be a result of the network will be charged up to £700 per day.

9.2 Any failure in the programme of least cost routing must be reported to Future within 24 hours of programming. Future will supply the Customer with test numbers at the Customers request for the Customer to prove the programming.

9.3 The customer agrees that:

9.3.1 Future may order certain goods and services from third parties on behalf of the Customer in connection with the Agreement and

9.3.2 Future shall not be liable in respect of any failure by such third parties to supply such goods and services and the Customer shall be solely responsible for pursuing any available remedies directly against the third party.

10. Customers Responsibilities

10.1 The Customer Shall

10.1.1 Indemnify Future in full from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with the Customer’s negligence, default or breach of these Terms. Keep the Equipment in its possession and in the United Kingdom and shall not move it without Future’s prior written consent which shall not be unreasonably withheld. Future shall charge for such a move if the Customer fails to notify Future; and

10.1.3 Arrange, at its own expense, for the provisions of any equipment or services by their chosen network provider, which may be necessary for the installation and operation of the Equipment, including all charges for the provision of lines or services.

11. Change Control

11.1 If either party identifies a requirement for a change to the Equipment or Services it shall send a Change Request to the other party detailing the change requirements.

11.2 If sent by Future, the Change Request shall state the effect such a change shall have upon the Equipment, Services and charges, If sent by Customer, the receipt of the Change Request by Future will constitute a request to Future to state in writing the effect such a change shall have upon the Equipment Services and Charges. Future shall use reasonable endeavours to supply such details within seven (7) working days from receipt of a Change Request.

11.3 Where a change to Charges is required the additional cost shall be confirmed in writing by Future. The parties will then decide wither or not to implement the change. If the change is implemented, the amended equipment, services and charges (as applicable) shall then become the Equipment, Services and charges for the purpose of this Agreement.

12. IP Rights

12.1 Customer acknowledges that any and all of the IP Rights subsisting to or used in connection with the Equipment and Services shall be and shall remain the sole property of Future or such other party as may be identified therein or thereon and Customer shall not at any time dispute such ownership.

12.2 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, customer acknowledges that the same shall be the property of Future unless otherwise agreed in writing by Future.

13. Termination and Suspension

13.1 We can end this Agreement immediately if any of the following happens:

13.1.1 the customer is in breach of this Agreement and the breach is incapable of remedy;

13.1.2 the customer is in breach of this Agreement and, such breach being capable of remedy, do not remedy the breach within 7 days of our notice requiring you to do so;

13.1.3 the customer does not pay your bill on time;

13.1.4 the customer (being a company) satisfy the test of insolvency and are unable to pay their debts at any time as set out in section 123 of the Insolvency Act 1986;

13.1.5 the customer (being an individual, person or firm) satisfy the test of insolvency and are unable to pay their debts at any time as set out in sections 267 and 268 of the Insolvency Act 1986;

13.1.6 the customer ceases or threatens to cease to trade;

13.1.7 the customer has any distraint, execution or other process levied or enforced on any of their property;

13.1.8 Future are required to end this Agreement by a competent regulatory authority or Our Licence expires or is terminated.

13.1.9 A force Majeure continues for a period of more than 3 months.

13.2 Future shall be entitled to terminate this Agreement forthwith on written notice to the Customer;

13.2.1 If the Equipment is serviced by any party other than Future;

13.2.2 If the Customer misuses or abuses the Equipment;

13.2.3 If any instalment of the Price or Service charge is Unpaid for Seven days or more.

13.3 On termination of this Agreement for any reason you will:

13.3.1 pay us all outstanding Charges due under this Agreement;

13.3.2 co-operate with us in the removal of any of Our Equipment from Your Premises.

13.4 Subject to clause 13.1. In the event that Customer terminates this Agreement early. Customer will pay Future the following sums;

13.4.1 ninety five percent (95%) of the Charges which would have been payable by customer to Future in respect of the supply of Services from the termination date of the Agreement until expiry of the fixed term referred to in clause 8.1; and

13.4.2 Either:

(i) In respect of Equipment sold by Future to Customer, twenty percent (20%) of the sale price charged by Future to Customer for that Equipment: or

(ii) In respect of Equipment leased by Future to Customer, twenty percent (20%) of the list price for that Equipment as specified in the list prices maintained by Future at the time the Equipment was first leased by Future to Customer under this Agreement.

13.5 All cancellation charges are cumulative.

13.6 Cancellation of the direct debit does not constitute notice of cancellation on termination of the contract.

13.7 Any returned equipment to us must be in full working order and a good condition. Any equipment found to be unserviceable or damaged beyond reasonable wear and tear will be subject to a charge at full Recommended Retail Price.

13.8 without Prejudice to any right of termination either party shall be entitled by immediate notice to suspend performance of some or all of the Services, hardware or licences specified in this Agreement upon the occurrence of circumstances specified in clause 13.1 and the Agreement will in any event be deemed suspended in the event of Force Majeure.

13.9 Termination or suspension of this Agreement will be without Prejudice to any accrued rights or obligations of either party.

14. LIMITATION OF LIABILITY

14.1 Our liability to you for damage to Your Premises directly caused by our negligence is limited to £1000. Our liability to you for any other direct loss or damage caused by our negligence or by our failure to keep to the terms of this Agreement is limited to the value of this contract. Our liability for death or personal injury caused by our negligence is not limited.

14.2 We shall in no circumstances be liable to you for any Consequential Loss.

14.3 For the avoidance of doubt we shall not be liable for any charges you incur if you divert your calls to another telecommunications operator during any period when the Service is not available.

15. CONFIDENTIALITY

15.1 Each Party (in this Clause “Receiving Party”) undertakes to the other Party (“Disclosing Party”):

15.1.1 to keep confidential the Disclosing Party’s information of a confidential nature obtained from the Disclosing Party in discussions leading to the Agreement and subsequently received pursuant to this Agreement (“in this Clause “Confidential Information”); and

15.1.2 not to disclose the Confidential Information in whole or in part to any other person without the Disclosing Party’s written consent, except to the Receiving Party’s employees, agents and sub-contractors involved in the supply or use of the Services (as the case may be) on a confidential and need-to-know basis; and

15.1.3 to use the Confidential Information solely in connection with the supply or use of the Services (as the case may be) and not for its own or the benefit of any third party.

15.2 The confidentiality obligations in Clause 15.1 will not apply if the Receiving Party is required by court, government or other regulatory body to disclose the Confidential Information, but only to the extent required by law, provided that the Receiving Party gives the Disclosing Party written notice as soon as practicable of such requirement.

15.3 The confidentiality obligations in Clause 15.1 will not extend to the Confidential Information which the Receiving Party can prove to the Disclosing Party’s reasonable satisfaction:

15.3.1 has ceased to be secret without default of the Receiving Party’s part; or

15.3.2 was already in the Receiving Party’s possession prior to disclosure by the Disclosing Party; or

15.3.3 has been received from a third party who did not acquire it in confidence.

15.4 This Clause 15 shall survive termination of the Agreement or any part of it.

16. FORCE MAJEURE

We will not be liable to you for any non-performance of our obligations under this Agreement due to acts of God, war or national emergency riots, civil commotion, fire, explosion, flood, epidemic, strikes, lock-outs (whether including our workforce or the workforce of any other party) and other industrial disputes, acts of government, highway authorities, telecommunications operators or other competent authorities or inability in obtaining supplies or services from third parties or due to any cause beyond Our reasonable control.

17. EMPLOYMENT OFFERS

For the duration of this Agreement and a period of one year thereafter, neither party shall, without the written consent of the other, make offers of employment to the other’s employees involved in the execution of this Agreement. In the event of a breach of this undertaking the breaching party shall pay to the other a sum equivalent to 100% of the first year’s salary of the employee engaged as a result of such breach.

18. ENTIRE AGREEMENT

This Agreement contains all of the terms of the Agreement between You and Us in relation to the Service and supersedes any prior written or oral agreements, representations or understanding between you and us. You acknowledge that you have not been induced to enter into this Agreement by any other promises, terms or conditions which it does not contain. This clause does not exclude any liability for any statements made fraudulently.

19. VARIATION

We can change this Agreement at any time upon service to You of no less than 7 days notice if We are required to comply with new laws or rules or any change in Our Licence or if there is any change in Our Service.

20. WAIVER

No failure by us to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise prevent any further exercise of the same, or of some other right, power or remedy.

21. ENFORCEABILITY

If any clause or part of this Agreement is found by any court or other authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be deemed to not form part of this Agreement without affecting any other provision of this Agreement which shall remain in full force and effect.

22. ASSIGNMENT

This Agreement is personal to you and may not be transferred to anyone else without Our agreement. We may transfer any of our rights under the Agreement to any third party.

23. NOTICES

Any notices which may be given by either you or us under this Agreement must be in writing and shall be deemed to have been duly given if addressed to the party to which it is to be given and if left at or delivered by prepaid mail or facsimile (provided that such facsimile is then confirmed by prepaid mail) as appropriate to our address and Your Address as specified in the Order.

24. APPLICABLE LAW

This Agreement is governed by English law and any disputes will be settled in the courts of the United Kingdom.