Easycallnow Hosted Telephony Services / Terms and Conditions

EASYCALLNOW LIMITED CLIENT AGREEMENT

This Agreement, which governs the terms and conditions of your use of the Services is between you (the “Client”) as an authorised user of the Services, and Easycallnow Limited (“Supplier”) whose registered office is at 21 New Street, London, EC2M 4HR (Company No. 07935579). This Agreement sets out the overarching terms and conditions under which any of Supplier’s telecommunication products and services can be ordered and used by the Client by accepting and registering for the Services available on www.easycallnow.net.

1. 1. DEFINITIONS

   1. 1.1 In this Agreement:

      “Agreement” means this Client Agreement;

      “Applicable Law” means all present and future laws and regulations applicable to this Agreement and the provision and receipt of the Services;

      “Call” means a transmission path through which a telecommunications system with the minimum service features necessary to support a speech path, such that messages may be transmitted over it, and for the purpose of this Agreement, a Call does not include any Call where the called party is requested and agrees to pay the costs of the same;

      “Call Charges” or “Phone Calls” means the duration of Calls multiplied by the applicable rate for each Call, as published on Website from time to time;

      “Call Detail Records” means the call data records of the parties;

      “Charges” means the Call Charges and the Other Charges;

      “Code of Practice” means any guidance or legal and regulatory codes of practice, rules of procedure, guidelines, directions or policies and any other requirements applicable to the Services (including but not limited to those issued by any regulatory authority in relation to the operation of the Services or components of the Services) in each case as amended from time to time;

      “Confidential Information” has the meaning set out in clause 16;

      “Default Rate” means the annual rate of three percent (3%) above the then current base rate of The Bank of England;

      “Effective Date” means the date on which Supplier confirms the Client’s application to register for the provision of Services by providing to the Client a customer ID, username and password as set out in clause 9;

      “Initial Term” means a period of three (3) years from the Effective Date;

      “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;

      “Other Charges” means any other charges (other than the Call Charges) including agent login and any other charges published on the Website from time to time;

      “Pre-Payment” means an advance payment made from the Client to Supplier, which will be held by Supplier and applied to the Client’s use of the Services in accordance with clause 5;

      “Pre-Payment Balance” means the balance of Pre-Payments;

      “Rates” means the applicable rates at which the Call Charges will be calculated, as published on the Website from time to time;

      “Services” means the telecommunications and related services to be provided to the Client as published on the Website from time to time;

      “Service Specific Terms” means the terms and conditions specific to a particular Service as published on the Website for such Services from time to time;

      “Supplier System” means any software, equipment and other property owned and operated or leased and operated by Supplier for the purposes of providing the Services;

      “Termination Payment” has the meaning set out in clause 15.1; and

      “Website” means the Supplier’s website at www.easycallnow.net.

2. 2. INTERPRETATION

   1. 2.1The words and phrases used in this Agreement shall have the meaning generally understood in the telecommunications industry. This Agreement shall be construed in accordance with its fair meaning and is not to be construed for or against either party on account of which party drafted this Agreement.
   2. 2.2 In this Agreement, unless the context otherwise requires or the contrary intention appears:
      1. 2.2.1 a reference to a provision of law is a reference to that provision as extended, applied, amended or enacted from time to time and includes any subordinate legislation;
      2. 2.2.2 the singular includes the plural and vice versa, and reference to any gender includes the other genders;
      3. 2.2.3 references to a person include bodies corporate and unincorporated associations of persons;
      4. 2.2.4 references to this Agreement and to any other agreement or document are to this Agreement or such other agreement or document as it may be validly varied, amended, supplemented, restated, renewed, novated or replaced from time to time; and
      5. 2.2.5 references to clauses refer to clauses of this Agreement.
   3. 2.3 The index and headings in this Agreement are for convenience only and do not affect its interpretation.

3. 3. DESCRIPTION OF SERVICES

   1. 3.1 This Agreement contains the general terms and conditions governing the provision of Services by Supplier to the Client. Additional Service Specific Terms may be contained on the Website, and supplement the terms and conditions in this Agreement; including, without limitation, the term of the Services, volume requirements, technical and logistical specifications, geographic scope and pricing. The Client is responsible for the accuracy of all information submitted to Supplier.
   2. 3.2 This Agreement shall become binding on the parties once the Client has registered on the Website and upon Client receiving a customer ID, username and password as confirmation of successful registration.

4. 4. TERM

   1. 4.1 This Agreement is effective and the parties’ obligations shall commence upon the Effective Date and, unless otherwise terminated pursuant to the terms of this Agreement, shall continue for the Initial Term and, thereafter, shall automatically renew for consecutive three (3) year terms, unless terminated by either party on providing the other party with at least three (3) months’ written notice prior to the end of the Initial Term or any subsequent three (3) year term. Such notice is to become effective as at the end of that three (3) year term, resulting in termination three (3) months after expiry of the three (3) year term, provided that such notice expires no earlier than the expiry of the Initial Term.

5. 5. PRICING AND BILLING

   1. 5.1 Commencing on the Effective Date, the Client shall pay Supplier the Call Charges and any Other Charges.
   2. 5.2 The Client and Supplier shall operate a pre-payment scheme under this Agreement as follows:
      1. 5.2.1 The Services will not be provided to the Client until a Pre-Payment is received by Supplier in cleared funds. The initial Pre-Payment will be held by Supplier on the Client’s behalf as the first Pre-Payment Balance. If Supplier does not receive the initial Pre-Payment within three (3) months of the date of this Agreement, it may terminate this Agreement on five (5) calendar days’ notice to the Client;
      2. 5.2.2 Supplier will deduct from the Pre-Payment Balance all amounts due, including Call Charges and Other Charges;
      3. 5.2.3 the Client shall make any payments to Supplier it deems necessary to maintain the Pre-Payment Balance above the minimum amount of 100 Pound sterling or as otherwise agreed by the parties from time to time (the “Minimum Amount”). If at any time the amount of the Pre-Payment Balance falls to zero, Supplier will have the right to immediately suspend the Services (or any part of the Services) without notice to the Client. Supplier will restore the applicable Services only when the Pre-Payment Balance has been reinstated to at least the Minimum Amount. Should the Client fail to reinstate the Pre-Payment Balance to at least the Minimum Amount within two (2) months of the date of the suspension of the Service(s), Supplier may terminate this Agreement on at least one (1) hour’s notice to the Client;
      4. 5.2.4 If the Client fails to use a Service for a period of twelve (12) consecutive months, any existing Pre-Payment Balance relating to that Service will be forfeited and retained by Supplier.
   3. 5.3 In addition and without prejudice to any other remedies Supplier may have, if the Client fails to pay any amount when due, Supplier may charge interest on the unpaid balance from the date due until the date paid, at the Default Rate. Supplier may also set-off amounts payable by Supplier to the Client under this Agreement or otherwise against any unpaid balance if the Client fails to pay any amount when due.
   4. 5.4 Any applicable taxes, including value added tax and consumption taxes directly comparable therewith (such as goods and sales taxes), including any non-deductible taxes and duties on services rendered by sub-contractors of Supplier, and duties or levies imposed by any authority, government or government agency (except income tax attributable to Supplier), that are applicable to the Charges payable in accordance with clause 5.2, shall be deducted automatically from the Pre-Payment Balance by Supplier in accordance with clause 5.4.2.
   5. 5.5 Unless otherwise specified on the Website, all monetary references in this Agreement are denominated in UK pounds sterling, and all financial transactions under this Agreement must be settled in UK pounds sterling.
   6. 5.6 The Call Charges will be calculated in accordance with the Rates published on the Website (as may be amended by Supplier from time to time in accordance with this Agreement). Call Charges will be calculated on the basis of Supplier’s Call Detail Records. In the event of a conflict between Supplier’s and the Client’s Call Detail Records, Supplier’s Call Detail records will prevail. All calls durations will be rounded up to the nearest second. All Charges shall be rounded up to the nearest penny.
   7. 5.7 Supplier may change the Charges on one (1) working day’s notice to the Client, by sending an email notifying the change to the e-mail address provided by the Client on the Website.

6. 6. BILLING DISPUTES

   1. 6.1 Written notice regarding any dispute as to the amount owing must be provided to Supplier in reasonable detail (including documentation identifying the invoice to which the dispute relates, the Charges which are in dispute, the objections to the Charges in dispute and any supporting data), as soon as reasonably practicable and in any event within five (5) calendar days of receipt of such disputed invoice, otherwise the invoice will be deemed to have been accepted by the Client.
   2. 6.2 In the event of a dispute, the parties shall in good faith investigate the matter promptly and use their reasonable endeavours to resolve the disputed charges within fourteen (14) calendar days following notice of the dispute. If the parties are unable to informally resolve the dispute in good faith within fourteen (14) calendar days following notice of the dispute, the dispute shall be addressed in accordance with the provisions of clause 27 Nothing in this clause 6 shall be construed to constitute a waiver of Supplier’s right to terminate this Agreement or to exercise any other rights under this Agreement or at law or in equity.

7. 7. PRIVACY POLICY

   1. 7.1 By entering into this Agreement the Client agrees that it has read and accepted the terms of Supplier’s Privacy Policy as amended from time to time.

8. 8. RESPONSIBILITIES OF CLIENT

   1. 8.1 The Client will comply with all Applicable Laws relevant to this Agreement and its use of the Services including, without limitation, the Data Protection Act 1998, the Data Retention (EC Directive) Regulations 2009, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (including the prohibition on making unsolicited or direct marketing calls to any subscriber to the Telephone Preference Service), the Communications Act 2003, the Regulation of Investigatory Powers Act 2003, the Consumer Protection from Unfair Trading Regulations 2008 and Ofcom’s policy on silent and abandoned calls. The Client shall be solely responsible for checking the Telephone Preference Service register before making any direct marketing calls. The Client will be responsible for obtaining and maintaining all necessary licences, permits and approvals required by any and all governmental authorities to permit the Client to receive and use the Services and comply with its obligations under this Agreement. The Client further represents that its use of the Services will be in accordance with such licences, permits and approvals, and that it will not use the Services for any unlawful or unauthorised purpose.
   2. 8.2 The Client consents to the Supplier making information available about the Client’s name and company details to any party called as part of the provision of the Services in the event such called party so requests.
   3. 8.3 The Client will not, nor will it permit or assist others to, and will take all reasonable steps to ensure that its own employees, contractors, customers and third parties do not, misuse, abuse or fraudulently use the Services, including, but not limited to, the following:
      1. 8.3.1 obtaining or attempting to obtain services by any means or device with intent to avoid payment; or
      2. 8.3.2 unauthorised access, alteration, destruction or any attempt, of any information of another Supplier customer by any means or device; or
      3. 8.3.3 using Services so as to impair or interfere with the use of Supplier System by other customers or authorised users, or in violation of the law or in aid of any unlawful act; or
      4. 8.3.4 using Services to impair or interfere with the privacy of any communications; or
      5. 8.3.5 using Services to send, transmit or communicate any material, data, images or information or to market anything which is:
         1. (a) in breach of any Applicable Law, Code of Practice or acceptable use policy; or
         2. (b) defamatory, false, inaccurate, abusive, indecent, obscene or menacing or otherwise offensive; or
         3. (c) in breach of confidence, copyright or other intellectual property rights, privacy or any other right of any third party; or
      6. 8.3.6 using the Services in breach of any other conditions which Supplier may notify to the Client in the interests of best working practices in the telecommunications industry.
   4. 8.4 The Client shall not knowingly and shall take every reasonable precaution in its use of the Services to prevent contamination of any software or hardware or diffusion of any software or hardware contamination including computer viruses, logic bombs or other similar destructive code.
   5. 8.5 The Client shall not alter, modify, adapt or translate the whole or any part of the Services in any way whatever nor permit the whole or any part of the Services to be combined with or incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.
   6. 8.6 The Client shall be solely responsible for:
      1. 8.6.1 the content of information and communications transmitted by its use of the Services; and
      2. 8.6.2 the Client’s use and publication of communications and/or information using the Services.
      3. 8.6.3 maintaining confidentiality and security of any passwords or other security features giving access to the Services.
      4. 8.7 Notwithstanding clause 13.6, the Client shall indemnify Supplier against all costs, losses, damages, claims or proceedings which Supplier may incur or suffer arising out of any breach of this clause 8.

9. 9. CLIENT ACCOUNT AND SECURITY

   1. 9.1 As part of the registration process for Services the Client agrees to provide all requested contact details including contact email address which are true, accurate, correct and complete. Supplier may at its sole discretion decline any application to register for the provision of Services. Once a Client becomes a registered user, Supplier will send an email notifying the Client of its customer ID, username and password to the email address provided during the registration process. The Client shall be solely responsible for maintaining the confidentiality of its authorisation details and account information and agrees to immediately notify Supplier of any unauthorised use of its account or any other breach of security known to the Client.

10. 10. INTELLECTUAL PROPERTY RIGHTS

    1. 10.1 All Intellectual Property Rights belonging to a party or its licensors prior to the Effective Date, and all modifications to them, will remain vested in that party or its licensors.
    2. 10.2 Supplier retains all Intellectual Property Rights that are created or otherwise arise during the course of this Agreement and the Client hereby assigns with full title guarantee and free from all third party rights, including by way of present assignment of future rights, the Intellectual Property Rights and all other rights in the products of the Services delivered during this Agreement.

11. 11. SUPPLIER WARRANTIES

    1. 11.1 In performing its obligations under this Agreement, Supplier warrants that it shall:
       1. 11.1.1 exercise reasonable skill and care; and
       2. 11.1.2 ensure that at all times only suitably qualified persons are used in the provision of the Services.
    2. 11.2 Supplier warrants to the best of its knowledge that the Services shall not:
       1. 11.2.1 infringe on the Intellectual Property Rights of any third party;
       2. 11.2.2 violate any law, including the laws and regulations governing export control;
       3. 11.2.3 contain any viruses, or any other computer programming routines in existence or yet to be created that are intended to damage, interfere with or intercept any system or extract any data or personal information.
    3. 11.3Supplier warrants that the Intellectual Property Rights in the Services are either owned by or licensed to Supplier. Supplier shall defend the Client against any third party claim, action, suit or proceeding resulting from a breach of this warranty. Subject to clause 12, Supplier shall indemnify the Client for all losses, damages, liabilities and other reasonable expenses and costs incurred by the Client as a result of a breach of this clause. Supplier’s obligations under this clause 11.3 are conditional upon the Client:
       1. 11.3.1 as soon as reasonably practicable, giving written notice of the claim to Supplier, specifying the nature of the claim in reasonable detail;
       2. 11.3.2 not making any admission of liability, agreement or compromise in relation to the claim without the prior written consent of Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
       3. 11.3.3 giving Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Client, so as to enable Supplier and its professional advisers to examine them and to take copies (at Supplier’s expense) for the purpose of assessing the claim; and
       4. 11.3.4 subject to Supplier providing security to the Client to the Client’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
    4. 11.4 Clause 11.3 constitutes the Client’s exclusive remedy in respect of any claim made under it.

12. 12. UK EMERGENCY SERVICES

    The Client acknowledges and agrees that the Services do not allow Calls to be initiated by end users of the Services to UK 999 and 112 emergency services numbers (“Emergency Services”). The Client shall make its end users aware that Calls may not be made under this Agreement to Emergency Services.

13. 13. LIMITATION OF LIABILITY

    1. 13.1 Except for the express warranties set out in clause 11, the provision of the Services are performed, provided and made available on an “as is” basis and the Client’s use of the Services is at its own risk. Supplier disclaims, any and all other express and implied warranties, including but not limited to warranties of satisfactory quality, fitness for a particular purpose and any warranties arising from course of dealing, usage or trade practice. Supplier makes no warranty that the Services will meet the Client’s requirements, nor that the Services will be uninterrupted, timely, secure, or error free. No advice, information, or expectation, whether oral or written, obtained by the Client through use of the Services shall create any warranty not expressly made in this Agreement.
    2. 13.2 In the event of any failure in the Services, Supplier shall not be liable to the Client or any of the Client’s customers, for any charges or related costs and expenses incurred should the Client or any of its customers divert its telecommunications traffic to another carrier. The Client shall indemnify Supplier against all costs, losses, damages, claims or proceedings which may be asserted by the Client’s customers which arise out of or relate to any defect in the Services.
    3. 13.3 The parties recognise that neither party has control over the laws or regulations of governments in relation to telecommunications related services.
    4. 13.4 Provisions of applicable legislation may imply warranties or conditions or impose obligations upon Supplier that cannot be excluded, restricted or modified, or that cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read and construed subject to any such legislation. If any such legislation applies, then to the extent to which Supplier is entitled to do so, the liability of Supplier under that legislation will be limited at Supplier’s option to:
       1. 13.4.1 re-supply of the Services;
       2. 13.4.2 payment of the cost of having the Services supplied again; or
       3. 13.4.3 any other remedy prescribed by Applicable Law.
    5. 13.5 Except as otherwise provided in this Agreement, neither party will be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Agreement for any indirect or consequential loss or damage, even if such party has been advised of the possibility of such loss or damage.
    6. 13.6 Except as otherwise provided in this Agreement, the parties agree that the Client’s maximum liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with any particular Service, shall be limited to an amount equal to the total amount of payments made by the Client to Supplier for that Service in the twelve (12) month period preceding the event out of which the liability arose.
    7. 13.7 Except as otherwise provided in this Agreement, the parties agree that Supplier’s maximum liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with any particular Service, shall be limited to an amount equal to 10 per cent of the Other Charges received from Client for that Service in the twelve (12) month period preceding the event out of which the liability arose.
    8. 13.8 This Agreement contains the whole agreement between the parties relating to the matters contained in this Agreement and supersedes and discharges all liability arising from any previous agreement (whether oral or in writing), discussions, negotiations and understandings between the parties relating to those matters.
    9. 13.9 Each party acknowledges that in entering into this Agreement it has not relied on any express or implied representation (including any negligent misrepresentation), which is not expressly set out in this Agreement.
    10. 13.10 In connection with the subject matter of this Agreement, each party waives all rights and remedies (including any right or remedy based on negligence or negligent misrepresentation) which might otherwise be available to it in respect of any express or implied representation which is not expressly set out in this Agreement.
    11. 13.11 Nothing in this Agreement excludes or limits either party’s liability for:
        1. 13.11.1 the tort of deceit or fraud by it or its employees;
        2. 13.11.2 death or personal injury caused by its or its employees’ negligence; or
        3. 13.11.3 a breach by that party of obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.

14. 14. SUSPENSION AND TERMINATION RIGHTS

    1. 14.1 Notwithstanding anything to the contrary set out in this Agreement, Supplier may suspend or terminate any applicable Service, with no further obligation to the Client:
       1. 14.1.1 immediately and without notice if any misuse of such Service or misconduct with respect to such Service on the part of the Client or its customers would, in Supplier’s reasonable opinion, cause material damage to Supplier’s network, facilities or other property;
       2. 14.1.2 immediately and without notice upon the request of the police or any regulatory body;
       3. 14.1.3 immediately if, in Supplier’s reasonable opinion, it is at risk of incurring legal liability in relation to the Client’s breach of clause 8;
       4. 14.1.4 if the Client continues to engage in any of the activities prohibited in clause 8 after written notice from Supplier and a thirty (30) day cure period;
       5. 14.1.5 immediately:
          1. (a) in the event of any evidence of the potential or imminent insolvency, dissolution or cessation of business operations of the Client; or
          2. (b) if the Client files a petition in bankruptcy or if a petition in bankruptcy is filed against it; or
          3. (c) if the Client makes an assignment for the benefit of any of its creditors or similar arrangement pursuant to any bankruptcy law or similar law of an applicable jurisdiction.
    2. 14.2 Either party may terminate this Agreement:
       1. 14.2.1 if the other party is in material breach of this Agreement, and such breach is either not capable of being cured or has not been cured within fourteen (14) days after receipt by the defaulting party of written notice from the non-defaulting party.
       1. 14.3 Any termination of this Agreement is without prejudice to any other rights or remedies any party may be entitled to under this Agreement or at law. It does not affect any accrued rights or liabilities of any party nor any provision which is expressly or by implication intended to come into force on, or continue in force after, termination.
       2. 14.4 The Supplier shall retain data for so long as it considers it necessary for legitimate business or legal purposes. On termination of this Agreement howsoever caused the Supplier shall have the right to delete all call recordings and to dispose of all other customer data. If the Client requests access to call recordings or other data after termnation and if such data has not been deleted the Supplier may make a charge for providing such access.

15. 15. TERMINATION PAYMENT

    1. 15.1 In the case of termination of this Agreement:
       1. 15.1.1 by the Client for any reason other than a material breach primarily attributable to Supplier; or
       2. 15.1.2 by Supplier pursuant to the terms of clauses 14.1 or 14.2, the Client shall remain liable to pay Supplier an amount equal to:
          1. (a) any Other Charges owing by the Client; plus
          2. (b) the Call Charges for all affected Services up to and including the date of termination; plus
          3. (c) the aggregate charges payable to any third parties (if any) for which Supplier is or becomes contractually liable in connection with any such termination, the “Termination Payment”.
    2. 15.2 The Client acknowledges and agrees that the Termination Payment is a genuine pre-estimate of Supplier’s loss in the event of early termination of this Agreement or a Service Order, and is not intended as a penalty.

16. 16. CONFIDENTIALITY

    1. 16.1 “Confidential Information” means the terms of this Agreement and other information of any type and form reasonably related to this Agreement and the Services that the receiving party (the “Receiver”) knows or has reason to know or reasonably believe is confidential, proprietary or trade secret information of the other party (the “Discloser”), whether or not the information is marked as confidential or proprietary at the time of disclosure or promptly after disclosure.
    2. 16.2 Confidential Information does not include information that:
       1. 16.2.1 was in the Receiver’s possession before receipt from the Discloser;
       2. 16.2.2 is independently developed by or for the Receiver without reference to the Discloser’s Confidential Information;
       3. 16.2.3 is rightfully received by the Receiver from a third party without a duty of confidentiality; or
       4. 16.2.4 is or becomes available to the public through no fault of the Receiver.
    3. 16.3 The Receiver may use the Discloser’s Confidential Information only in connection with this Agreement, and may not disclose any such Confidential Information except as follows:
       1. 16.3.1 to employees, agents or contractors of the Receiver who have a need to know and who have been informed of the Receiver’s obligations under this Agreement; and
       2. 16.3.2 when disclosure is required under Applicable Law, if the Receiver first gives the Discloser notice of the required disclosure and co-operates with the Discloser, at the Discloser’s expense, in seeking reasonable protective arrangements (however, the Receiver is not required to act in a manner which would result in sanctions or other penalties).
    4. 16.4 The Receiver’s obligations under clause 16.3 shall end three (3) years following termination of this Agreement.
    5. 16.5 The Receiver shall be primarily liable to the Discloser for the compliance of each person described in clause 16.3.1.
    6. 16.6 The Receiver will preserve all proprietary markings on the Discloser’s Confidential Information provided to the Receiver.
    7. 16.7 All information exchanged under this Agreement is provided “AS IS”, without warranty of any kind.
    8. 16.8 Each party acknowledges that its breach or threatened breach of this clause 16 may cause the Discloser irreparable harm which would not be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, the Receiver agrees that equitable relief, including a temporary or permanent injunction, is an available remedy in addition to any legal remedies to which the Discloser may be entitled.

17. 17. FORCE MAJEURE

    1. 17.1 Supplier shall not be liable for any delays or failures to perform its obligations under this Agreement to the extent such delays or failures are due to fire, flood, the elements, labour disputes or shortages, utility curtailments, power failures, blackouts, explosions, civil disturbances, unavailability of the Internet or other essential services, acts or omissions of third parties, acts of God, government, bodies vested with governmental or regulatory authority or public utility, or any other cause that is beyond the Supplier’s reasonable control or that Supplier could not have reasonably prevented (a “Force Majeure Event”).
    2. 17.2 If Supplier is delayed in performing its obligations under this Agreement as a result of a Force Majeure Event, it shall give Client at the earliest possible time after the Force Majeure Event becomes known, written notice of its claim for any extension of time for its performance, together with a description of the Force Majeure Event on which it bases its claim of force majeure.
    3. 17.3 If a Force Majeure Event continues for a continuous period of thirty (30) days, either party may terminate this Agreement without penalty by giving notice in writing to the other party.

18. 18. NO AGENCY

    Client is not authorised to act as an agent for, or legal representative of, Supplier, and Client shall not have the authority to assume or create any obligation on behalf of, in the name of, or binding upon Supplier. No provisions of this Agreement will be considered to constitute a joint venture, partnership or agency between the parties or to merge the assets, liabilities and undertaking of the parties.

19. 19. CLIENT’S BINDING EFFECT AND ASSIGNMENT

    This Agreement is personal to and shall be binding upon and inure only to the benefit of the Client. Nothing in this Agreement is intended to create or confer any right or remedy on any third party. Client cannot assign or otherwise transfer all or any material part of its rights or duties under, or other interests in, this Agreement or the proceeds of it without Supplier’s prior written consent, which consent shall not be unreasonably withheld or delayed. No assignment shall release the Client of its obligations under this Agreement. Any attempt to assign any rights or duties in violation of this provision shall be null and void.

20. 20. SUPPLIER’S ASSIGNMENT AND SUB-CONTRACTING

    Supplier may, at its sole discretion, assign, sub-contract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent. In the event of any sub-contracting in accordance with this clause 20, Supplier shall remain fully responsible and liable to the Client for all acts and omissions of its sub-contractors.

21. 21. AMENDMENT

    Supplier reserves the right to change or amend its website and policies at any time. Supplier will notify the Client in writing of any policy changes from time to time and any changes to this Client Agreement which are required by law or regulations.

22. 22. SEVERABILITY

    Any provision of this Agreement which is or becomes illegal, invalid or unenforceable shall be severed from it and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not effect or impair the remaining provisions of this Agreement, which provisions shall otherwise remain in full force and effect.

23. 23. REPRESENTATION OF AUTHORITY

    1. 23.1 Each party represents and warrants to the other party that the execution and delivery of this Agreement and the performance of such party’s obligations under this Agreement have been duly authorised and that the Agreement is validly and legally binding on such party and enforceable in accordance with its terms.
    2. 23.2 The Client represents and warrants that the party entering into the Agreement is authorised to do so on behalf of the Client.

24. 24. FURTHER ASSURANCES

    Each of the parties agrees to execute and deliver any and all further agreements, documents or instruments reasonably necessary to give effect to this Agreement and the transactions referred to in it or contemplated by it or reasonably requested by any other party to evidence its rights under this Agreement.

25. 25. NOTICES

    1. 25.1 Unless otherwise specified in this Agreement, all notices, requests and other communications under this Agreement shall be in writing, addressed to the parties at the addresses detailed in the Website or by email at the address provided during the registration service or such other email address as may be notified to the other from time to time.
    2. 25.2 Notices or requests must be in writing in the English language and must be delivered by a method providing for proof of delivery (including express courier or email if evidence of receipt is obtained). Any notice or request will be deemed to have been given on the date of receipt. Notices and requests must be delivered to the addresses referred to above or such other address designated by written notice to the other party.

26. 26. PUBLICITY AND USE OF NAME

    1. 26.1 The Client shall not:
       1. 26.1.1 issue any publication or press release relating to this Agreement or the relationship of the parties under this Agreement except as may be required by Applicable Law or securities exchange or agreed to in a separate written agreement between the parties; or
       2. 26.1.2 use the name, logo, trade name, service marks, trademarks or printed material of Supplier in any promotional or advertising material, statement, document, press release or broadcast without the prior written consent of Supplier, which consent may be granted or withheld at Supplier’s sole discretion.
       3. 26.1.3 The Client acknowledges and agrees that Supplier may refer to the provision of the Services by Supplier by using the name and logo of the Client in any promotional or advertising material, statement, document or press release without the prior written consent of the Client.

27. 27. DISPUTE RESOLUTION

    1. 27.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a “Dispute”) then, except as expressly provided in this Agreement, the parties shall follow the dispute resolution procedure set out in this clause 27.
    2. 27.2 Either party shall give to the other written notice of the Dispute, setting out its nature and full particulars, together with relevant supporting documentation (a “Dispute Notice”).
    3. 27.3 On service of a Dispute Notice, each party shall designate a senior executive who has authority to resolve the Dispute and the senior executives shall consider the Dispute and shall negotiate in good faith to resolve it.
    4. 27.4 If the Dispute is not resolved by the senior executives within fourteen (14) calendar days after their appointment, then either party may take such further steps as it considers appropriate to resolve the Dispute, including the initiation of court proceedings.
    5. 27.5 Nothing in this clause 27 shall be construed as prohibiting either party from applying to a court for interim injunctive relief.

28. 28. MISCELLANEOUS

    1. 28.1 No waiver by either party of any provisions of this Agreement shall be binding unless made expressly and confirmed in writing. Any such waiver shall relate only to such matter, non-compliance or breach as it relates to and shall not apply to any subsequent or other matter, non-compliance or breach. The failure of either party to enforce or insist upon compliance with any of the provisions of this Agreement or the forbearance or waiver of it, in any instance, shall not be construed as a general waiver or relinquishment of any such right.
    2. 28.2 Nothing in the Agreement diminishes, restricts or prejudices the rights of either party to enter into similar agreements with other parties or to otherwise compete with each other. Each party acknowledges that it remains at all times solely responsible for the success and profits of its own business.
    3. 28.3 This Agreement may be executed in several counterparts, each of which shall constitute an original, but all of which shall constitute one and the same instrument.
    4. 28.4 Nothing in this Agreement will be deemed or construed to create any third-party beneficiary under the Contracts (Rights of Third Parties) Act 1999 or otherwise or any relationship of principal and agent, partnership or joint venture between the parties. Unless otherwise specifically authorised in writing, no party shall make any express or implied agreements, guarantees or representations, or incur any debt, in the name of or on behalf of the other.
    5. 28.5 The Client is the service provider with respect to its end-users and Supplier is merely a supplier to the Client with no relationship to the Client’s end-users. The parties agree and acknowledge that the Client shall assume all credit risk associated with the Client’s end-users and that delays or failures in obtaining such payments from end-users shall not affect or relieve the Client of its responsibility to make payments to Supplier pursuant to this Agreement.

29. 29. GOVERNING LAW

    This Agreement is governed by and construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the courts of England.