Version 2
About the way we'll work together
You probably like to know exactly where you stand when you do business with someone. We’re the same. That’s why we’ve put together this document to let you know how we’ll work with you. These Standard Terms and Conditions and the Special Terms referred to on your Order Form apply to the services we supply to you.
We’ve set all the legal stuff out in black and white, and we’ve done our very best to be fair and clear as well. If there’s anything you’d like to check through, please give our Customer Services team a call on 0800 052 0800.
1. Definitions and Interpretation
1.1 In the Agreement, unless the context otherwise requires:
Acceptance Testsmeans Our standard acceptance tests as carried out pursuant to Clause 4; Act means the Communications Act 2003; Agreement means in relation to a particular Service these Standard Terms and Conditions, the relevant Special Terms, the relevant Service Level Agreement, the Price Guide, Service Literature and the relevant Order Form;
Call Charges means Our charges for the use of the Service which vary dependent on the duration of connection time or the volume of traffi c as set out in the Price Guide or as otherwise agreed in writing (and in either case whether referred to as ‘Call Charges’ or otherwise);
Cancellation Charges means the charges calculated as set out in Clause 8.16;
Charges means Our charges from time to time (including Cancellation Charges, Call Charges, Connection Charges and Rental) for the Services;
Communications Network means the communications network which We and Our Group run;
Connection Charges means Our charges for the installation and connection of the Equipment and Service specifi ed in the Price Guide or as otherwise agreed in writing (and in either case whether referred to as ‘Connection Charges’ or otherwise);
Customer Apparatus means any apparatus, and any software embodied therein (including without limitation Purchased Equipment, cabling, wiring, personal computers, network interface cards and network interface adapters) not forming
part of (but which may be connected to) the Equipment and used by You in conjunction with any Equipment in order to obtain or use the Service;
Customer Promise Date means the agreed target date by which We aim to have completed installation of the Service as notifi ed to You in writing;
Customer Services means Our Customer Services department;
Equipment means equipment other than any Purchased Equipment that We provide to You from time to time in connection with the provision of the Service;
Group means a group undertaking (as that term is defi ned in sections 1161 and 1162 of the Companies Act 2006) of either Party as appropriate other than that Party;
Law means any law, statute or regulation, guideline or code of conduct (whether or not having the force of law) in any jurisdiction to which a Party is from time to time subject;
Minimum Period means 12 months from the Service Commencement Date (or where installation of the Service is phased, means 12 months from the Service Commencement Date of the last installed element of the Service) or where a
longer period is stated on the Order Form or in the relevant Special Terms such longer period (calculated from the relevant Service Commencement Date as above);
Order Form means Our standard Order Form completed by the Parties and accepted by Us to order the Service;
Our Website means (i) www.virginmediabusiness.co.uk; or (ii) such other web address as notifi ed to You from time to time including in each case any website or webpage referred to or accessed via a link from such website;
Party means You or Us, and Parties means You and Us;
Password means a password, code, PIN number, user ID, account number, smart card or other security device We issue to You or which is issued to You on Our behalf;
Price Guide means all and any information relating to Charges for Our Service(s), which are available on request;
Purchased Equipment means any equipment You purchase from Us in connection with the provision of the Service;
Rental means the rental payable for the Service specifi ed in the Price Guide or as otherwise agreed in writing (and in either case whether referred to as ‘Rental’ or otherwise);
Service means the service(s) set out in the Order Form;
Service Commencement Date means the earlier of (i) the date the Service is used by You; or (ii) the date of successful completion of the Acceptance Tests pursuant to Clause 4;
Service Credits means reductions in certain Charges in respect of Our failure to meet specifi ed service levels calculated in the manner set out in any applicable Service Level Agreement;
Service Level Agreement means Our service level agreement from time to time applicable to the Service, as published on Our Website or otherwise notifi ed to You;
Service Literature means any information, specifi cations, customer solution document, brochure, customer or user guide or instructions as current from time to time published by Us or on Our behalf by way of description of or otherwise in
connection with the Service;
Site means the site from, to or in respect of which the Service is provided;
Site Occupier means the occupier of a Site and of such other premises which We need to access to supply the Service, and shall include such occupier’s successors and permitted assigns;
Special Terms means Our additional Service specific terms and conditions;
Standard Terms and Conditions means these terms and conditions as varied from time to time in accordance with the Agreement;
Survey means any survey or other investigations We deem necessary;
We/Us/Our means Virgin Media Business Limited;
Working Day means 09.00 – 17.30 Monday – Friday excluding bank and public holidays in the United Kingdom;
Year means the 12-month period commencing on the date of this Agreement;
You/Your/Customer means the person who enters into the Agreement as detailed on the Order Form.
1.2 References in the Agreement:
1.2.1 to a statutory provision will be interpreted as a reference to such provision as amended or re-enacted from time to time;
1.2.2 to a ‘person’ includes any person, partnership, firm, company, body corporate, corporation, government, state or agency of a government or state, joint
venture, trust, association or organisation;
1.2.3 to a Party includes its respective successors and permitted assigns and their respective employees and agents;
1.2.4 to You, Your or the Customer includes any other person who We reasonably believe is acting with Your knowledge or authority; and
1.2.5 to any word in the singular includes the plural and vice versa.
1.3 References in these Standard Terms and Conditions to Clauses are unless otherwise stated to Clauses in these Standard Terms and Conditions.
1.4 Headings are for convenience only and do not affect the interpretation of the Agreement.
1.5 Where in the Agreement You agree not to do any act or thing You also agree not to allow and to take all reasonable measures to prevent any other person doing that act or thing.
2. Ordering the Service and Duration
2.1 To order a Service You must complete Our Order Form. However, if at our discretion We accept an order for a Service placed other than on the Order Form (which order is in Clauses 2.1 and 2.2 referred to as being placed on a ‘Customer Order Form’) or if We install a Service without having received from You and/or accepted either the Order Form or a Customer Order Form, the Service shall be provided in accordance with the terms of the Agreement.
2.2 For the purposes of Clause 2.1 the Agreement shall incorporate any details, specifi cations and/or information contained in a Customer Order Form where such details, specifi cations and/or information would also have been required in Our Order Form but no other terms and conditions of the Customer Order Form
shall be incorporated into the Agreement.
2.3 In relation to a particular Service the Agreement shall come into force on the earliest of the dates both Parties have signed the Order Form, or You start using the Service or the date We make the Service available to You and shall, subject to earlier termination in accordance with the terms of this Agreement, continue in force for the Minimum Period and thereafter unless either Party terminates the Service by giving the other Party not less than ninety (90) days prior written notice to expire at the end of the Minimum Period or any time thereafter. Any such notice You give Us must be given to Customer Services in accordance with Clause 20.
2.4 Notwithstanding Clause 2.3 You can terminate a Service prior to expiry of the Minimum Period but You must pay Us the applicable Cancellation Charges.
3. Installing the Service and Equipment, Purchased Equipment and Insurance
3.1 All Services are supplied subject to:
3.1.1 satisfactory Survey;
3.1.2 Site access permissions being obtained as further described in Clause 7;
3.1.3 Your satisfactory credit status as set out in Clause 8.9; and 3.1.4 satisfactory identity checks as set out in Clause 21.5. We may without liability on notice to You terminate a Service if in Our reasonable opinion any of the conditions in Clauses 3.1.1 to 3.1.4 are not satisfied.
3.2 We may conduct a Survey of any Site and subject to the result of that Survey may further amend the Customer Promise Date based on the results of that Survey. Charges are subject to Survey. If a Survey indicates that We will incur unusual additional costs in providing the Service, We shall be entitled on notifi cation to You to increase the Charges by the amount of such costs. If the results of the Survey substantially affect the Charges payable by You, We shall provide You with as much notice as is reasonably practicable and You shall have the right to terminate the Agreement by giving Us written notice within 7 days of receipt of Our proposed change. Cancellation Charges shall not be payable upon termination pursuant to this Clause 3.2.
3.3 We will use Our reasonable endeavours to install and connect the Equipment and/or Purchased Equipment so that the Service is available by any Customer Promise Date. If the Service is not available by then You may be entitled to claim Service Credits as set out in Clause 9.3. Any lead times contained in the Order Form (other than any Customer Promise Date) or Service Literature are general estimates only and are not binding on Us.
3.4 No Customer Promise Date shall be changed except:
a) by agreement in writing between the Parties; or
b) if a delay is caused by Your wilful act, neglect or failure to fulfi l Your obligations hereunder; or
c) if a delay is due to any other cause beyond Our reasonable
control in accordance with Clause 17; or
d) in accordance with Clause 3.2.
3.5 You must provide (at Your cost) appropriate space, power, ducting and environment to install and maintain the Equipment and/or Purchased Equipment at the Site. You must ensure that any necessary preparations are made before the Equipment and/or Purchased Equipment is connected and in accordance with Our instructions (if any).
3.6 If You fail to take delivery or allow installation of the Equipment and/or Purchased Equipment on any agreed delivery or installation date We may arrange for its storage at Your risk. You will be liable to Us for the reasonable costs of such
storage. We may also charge You a call out fee together with any reasonable costs We incur as a result of Your failure.
3.7 Unless otherwise agreed in writing You must provide a secure electricity supply at the Site for the installation, operation and maintenance of the Equipment and/or Purchased Equipment at such points and with such connections as We specify. Back-up power with suffi cient capacity to conform to the standby requirements of the relevant British standards is needed if the Service is required to continue uninterrupted in the event of a failure in the principal power supply. We shall not be liable for faults arising in the Service, Equipment and/or Purchased Equipment caused by failures in power supply.
3.8 We shall use our reasonable endeavours to comply with Your requests in respect of the location of the Equipment and/or Purchased Equipment but Our reasonable decision on this matter shall be fi nal and binding.
3.9 The Equipment shall remain Our (or Our nominees’) property. You agree to make ownership of the Equipment at the Sites clear to all third parties. We may modify, substitute, renew or add to the Equipment from time to time at our sole discretion provided that such modifi cations, substitutions, renewals or additions shall not materially and adversely affect the Service. Risk in and liability for Equipment located at the Sites and Purchased Equipment shall pass to You on delivery of each item thereof. You must insure the Equipment and Purchased Equipment at, on, over or under the Site in respect of all relevant risks. Property and ownership of Purchased Equipment shall not pass to You until You have paid Us the relevant purchase price in full.
3.10 You are responsible for ensuring at all times the safe keeping and proper use of the Equipment at the Site. Except where such loss or damage is solely attributable to Our negligent act or omission, or that of Our employees, subcontractors or agents, You must indemnify Us for any loss or damage to the
Equipment (including but not limited to lightning or electrical damage). In particular (but without prejudice to the generality of the foregoing and without limitation) You agree:
3.10.1 not to (and to ensure that no other person shall) sell, let, transfer, dispose of, mortgage, charge, modify, repair, service, tamper with, remove or interfere with the Equipment or suffer any distress, seizure or execution to be levied against any of the Equipment or otherwise do anything prejudicial to Our rights in the Equipment;
3.10.2 to keep the Equipment at the Site and stationary at all times;
3.10.3 to house, keep and use the Equipment in accordance with such written instructions as We may notify to You from time to time or, in the absence of such instructions, to the same standard as a reasonable owner of such Equipment would if it were their property;
3.10.4 not to add to, modify, or in any way interfere with the Equipment, including without limitation the connection of any equipment or device designed to divert
electronic communications services to a third party electronic communications provider;
3.10.5 notwithstanding the above, in the case of an emergency, to take whatever steps as are reasonably necessary to safeguard the Equipment and to notify Us as soon as possible of the circumstances of such emergency;
3.10.6 not to cause the Equipment to be repaired, serviced or otherwise attended to except by Our authorised representative;
3.10.7 not to do anything nor to allow any circumstance, matter or thing from arising or occurring, which is likely to damage the Equipment or detract from or
impair its performance or operation;
3.10.8 not to remove, tamper with or obliterate any words or labels on the Equipment or any part thereof; and
3.10.9 to permit Us or Our agent to inspect, test and maintain the Equipment at all reasonable times and on reasonable notice.
3.11 You must immediately notify Us of any loss or damage to the Equipment. We shall have no liability whatsoever for any loss or damage incurred as a direct or indirect result of Your breach of Clause 3.10.
4. Accepting the Service
4.1 Following installation of the Equipment, and/or Purchased Equipment We will conduct Acceptance Tests to ensure that the Service is ready for use. If the Service is not ready for use We will carry out remedial actions and repeat the Acceptance Tests.
4.2 All Acceptance Tests shall if You request be carried out in the presence of Your representative provided that they are available at such reasonable times as We may specify. On successful completion of the Acceptance Tests We may require You to sign a form confi rming satisfactory installation (such signature not to be unreasonably withheld or delayed). Where Your representative does not sign such form within 5 Working Days of being requested to do so, satisfactory installation of the Equipment and/or Purchased Equipment shall be deemed to have occurred
on the date of successful completion of the Acceptance Tests.
5. Customer Apparatus
5.1 If We agree, subject to payment of any applicable Charges and satisfactory Survey, to use for the provision of the Service, cabling and/or wiring already installed at the Site, You warrant that You have full title to such cabling and/or wiring and that its installation meets all applicable standards and any specifications We notify to You.
5.2 We shall have no liability for any loss or damage arising directly or indirectly from use of the Customer Apparatus.
5.3 You are entirely responsible for the security of access to Your computer systems, the integrity of information stored thereon and security from corruption, change and abuse of such systems and information by others. Prior to installation of the Equipment and/or Purchased Equipment You must take all necessary steps to back up and secure Your information and data. You must comply with all reasonable instructions we notify You of relating to the preparation of Customer Apparatus and/or the Site. We shall not be liable for any damage arising from Your failure to carry out such preparations.
5.4 You are responsible for ensuring that Customer Apparatus is programmed, equipped, compatible and connected for use with the Service in accordance with Our reasonable instructions (if any) and any other instructions or safety and security procedures applicable to the use of Customer Apparatus or the Service. Subject to Clause 5.8 You are responsible for connecting Customer Apparatus to the Communications Network termination point.
5.5 Save as otherwise agreed in writing We are not responsible for the repair and maintenance of Customer Apparatus.
5.6 You must ensure that Customer Apparatus is in good working order and complies with all applicable standards, approvals and relevant Law in force from time to time. We may require You to disconnect (in which case You must do so promptly) or may ourselves disconnect any Customer Apparatus if in Our reasonable opinion: (i) it does not conform to applicable standards, approvals or any relevant Law for the time being in force; or (ii) it may cause injury to any person or material damage to property; or (iii) it may impair the quality of any service We provide.
5.7 We shall have no liability whatsoever where any inability to use the Service is due to incompatibility between Customer Apparatus and the Equipment, Service, Communications Network and/or any third party’s communications network or for any breakdown or failure in Customer Apparatus.
5.8 Without undertaking any obligation to do so, where We assist You in the preparation of Customer Apparatus or its connection to the Communications Network You must pay Our Charges for such assistance.
5.9 Clauses 5.2, 5.4, 5.5 and 5.7 do not apply to any Purchased Equipment that We maintain as part of the Service.
6. Telephone Numbers
6.1 Any telephone numbers We allocate to You for Your use do not belong to You. You accept that You do not acquire any rights whatsoever in such telephone numbers. You must not attempt to apply for registration of the same as a trademark, service mark, or domain name whether on its own or in conjunction with some other words or trading style.
6.2 You are not entitled to sell or agree to transfer to a third party any telephone number allocated to You.
6.3 We are entitled, for commercial, operational or technical reasons or in order to comply with the requirements of any competent authority, to withdraw or change any telephone number or code or group of telephone numbers or codes allocated or provisionally allocated to You. We shall not be liable for any costs, inconvenience or other losses (including without limitation marketing and stationery costs) You incur as a result of any such change or withdrawal. We will use Our reasonable endeavours to give You reasonable notice of such change or withdrawal.
6.4 If You are allocated a number which falls within a range of numbers classifi ed from time to time by OFCOM (or any other competent authority) as being for the provision of a particular type of service, then You must ensure that any service provided by You on that number conforms at all times with the type allocated to that number range.
6.5 Where We provide You with telephone numbers each number is associated with a designated Site. Such telephone numbers have a Calling Line Identity (CLI) identifying the designated Site. The CLI is provided to the emergency services to enable deduction of the location of the caller when a 999 or 112 emergency services call is made. If You move the telephone number to another Site the CLI presented to the emergency services when dialling 999 or 112 will be that of the original designated Site and hence the emergency services bureau will not know the caller’s correct location from the CLI and in the event of a silent call may send personnel to the wrong location. If the telephone number is moved by You, You must provide to the affected users a telephone facility with a CLI for the Site from which the call is made. We will not be responsible for any loss, damage or injury caused as a result of the telephone number being moved from the designated Site.
7. Access to Site
7.1 In order to perform Our obligations under this Agreement You give Your consent to Us (including Our employees and authorised representatives) from time to time, and upon giving You reasonable notice (except in an emergency when no notice shall be required):
7.1.1 entering those parts of the Site or Your other premises or land as necessary to the extent that they are used for the purposes of the provision of the Service;
7.1.2 performing works in connection with the installation, maintenance, adjustment, repair, moving, replacement, renewal or removal of the Equipment at or on the Site, premises or land from time to time; and
7.1.3 bringing upon, installing and keeping installed at the Site, premises or land the Equipment and such other equipment as is reasonably necessary for the provision of the Service or the works set out in Clause 7.1.2 above.
7.2 You shall at Your own expense procure or provide such further consents and wayleaves as may be required to enable Us to exercise the wayleave granted in Clause 7.1 or to enable Us to deliver the Service. We shall have no liability to You in the event that You cannot obtain these.
7.3 Each Party shall at all times comply and procure that its employees and authorised representatives comply with all reasonable instructions of the other Party or any third party pursuant to any consents and wayleaves obtained in
accordance with this Clause 7.
7.4 Any person in apparent authority who grants entry to the Site or other premises or land as above shall be deemed to have Your authority to grant such entry.
7.5 You warrant that You will not use the Site or other premises or land as above so as to make any of the rights granted to Us in Clause 7.1 substantially more diffi cult or costly to exercise.
7.6 We will cause as little damage as reasonably possible when exercising any of Our rights under Clause 7.1 and shall make good any damage that We, Our employees, agents or contractors may cause to the Site.
7.7 You must provide a safe and suitable working environment for Our employees, agents or contractors at the Site.
7.8 The provisions of this Clause 7 shall apply for the duration of this Agreement and for other periods thereafter as We may require to exercise Our rights to disconnect any Equipment and remove it from the Site or other premises.
8. Paying for the Service
8.1 Charges for the Service are as referred to in the Price Guide or as otherwise agreed in writing (including without limitation in the Order Form). It is a condition of the Agreement that You pay the Charges in full without any set-off, deduction, withholding, restriction or condition whatsoever.
8.2 We will confi rm Our mandatory or preferred method of payment of the Charges. If You make a payment which is not in accordance with such method, We may decline it or impose an additional administrative fee.
8.3 We may increase or implement new Charges as set out below:
8.3.1 Connection Charges or other one-off Charges – on thirty (30) days written notice at any time;
8.3.2 Rental or other recurring Charges – on thirty (30) days written notice to take effect at any time on or after the end of the Minimum Period, save where an increase is due to an increase in the charges We have to pay to a third party communications operator in which case We shall be entitled to increase such Charges during the Minimum Period to refl ect such increase on 30 days written notice;
8.3.3 Call Charges – on 7 days written notice or publication of the revised Call Charges on Our Website. This Clause 8.3 does not apply to increases pursuant to
Clause 3.2.
8.4 Within 7 days of notifi cation of increased or new Charges asset out in Clause 8.3 (but for the avoidance of doubt not an increase under Clause 10.5 or Clause 3.2) You may by written notice to Customer Services terminate the Agreement, such termination to take effect on the date the increased or new Charges become effective or such later date as You specify in Your notice. If You do not terminate in such period You are deemed to have accepted the increased or new Charges.
We may decrease Charges at any time without notice and You shall have no right to terminate the Agreement.
8.5 Unless otherwise stated in the relevant Special Terms, on the Order Form or otherwise agreed in writing We (or a member of Our Group on Our behalf) will invoice Charges on or after the dates set out below:
8.5.1 Connection Charges or other one-off Charges – the Service Commencement Date of the relevant Site;
8.5.2 Rental or other recurring Charges – the Service Commencement Date and thereafter monthly in advance;
8.5.3 Call Charges – monthly in arrears from the Service Commencement Date.
8.6 Unless otherwise agreed in writing You will pay Us (or such person as We direct) all Charges within thirty (30) days of the date of the relevant invoice.
8.7 Notwithstanding any other provision in the Agreement, We may delay or bring forward the sending of invoices to coincide with Our billing cycles from time to time. You acknowledge that the first and last invoice in relation to a particular Service may include Charges due for more or less than one complete billing cycle according to when such Service is connected and/or terminated.
8.8 If You pay the Charges by Direct Debit We may alter Your Direct Debit instruction according to the relevant Charges from time to time applicable to the Service. On proper termination of the Agreement You will be responsible for the cancellation of any Direct Debit instructions or other authorisations for periodic payment to Us. Except on proper termination of the Agreement You must inform Us immediately if You cancel any Direct Debit instructions. Cancellation of any Direct Debit instruction shall entitle Us to suspend and/or terminate the Agreement without notice.
8.9 We shall be entitled to carry out credit checks on You. We accept no liability for the accuracy or otherwise of information provided to Us by credit reference agencies (CRAs). If at any time before or during the term of the Agreement You fail to meet the standard of creditworthiness We deem acceptable, We shall be entitled:
8.9.1 to terminate the Agreement, in whole or in part immediately on giving You written notice;
8.9.2 to require You to make such regular instalment payments in advance on account of any future charges as We deem appropriate;
8.9.3 to impose credit limits on You in respect of Charges and to suspend the Service at any time when such limits are reached until payment in full of such outstanding Charges has been made; and
8.9.4 to impose such other measures on Your right to use any of the Services as We shall deem appropriate.
8.10 We reserve the right to charge a deposit to secure amounts payable by You hereunder. Such deposit may be applied by Us against any outstanding Charges due by You hereunder from time to time. No interest shall be payable on any such deposit. The deposit (or remaining balance thereof) shall be repaid to You following proper termination of the Agreement provided the Equipment (if any) is returned to Us in good condition (fair wear and tear excepted) and You have paid all outstanding amounts.
8.11 If payment is not made when due We may without prejudice to Our other rights:
8.11.1 charge interest at 4% per annum above the base rate for lending of Barclays Bank plc on any amount You fail to pay from the date when payment was due until the date of actual payment. Interest will continue to accrue even if the Agreement is terminated; and/or 8.11.2 charge You a late payment fee.
8.12 You must reimburse Us all costs and expenses (including legal costs) We incur in the collection of any overdue amounts. Costs and expenses will continue to accrue even if the Agreement is terminated.
8.13 All sums due to Us under the Agreement are exclusive of Value Added Tax or any other applicable tax. You shall pay such taxes.
8.14 Where prior to entering into the Agreement or at any time during its term, You have indicated any anticipated usage/take up levels of the Service and such usage/take up levels are not met, We may, without prejudice to any other rights under the Agreement, apply revised Charges. Such revised Charges shall
not be subject to Clauses 8.4, 18.1 or 18.2.
8.15 Where the Service Commencement Date and/or Customer Promise Date for a Site is delayed at Your request or by virtue of Your wilful act, neglect or failure to fulfi l Your obligations hereunder, the Connection Charges and Rental for that Site and any other Site(s) that is/are subsequently delayed as a direct result shall be
payable no later than the Customer Promise Date for that Site unless otherwise agreed in writing between the Parties.
8.16 Cancellation Charges payable pursuant to Clauses 2.4, 15.4 and 19.2 shall be calculated as follows:
8.16.1 for termination after the relevant Service Commencement Date:
(i) all Charges due but unpaid at the date of cancellation or termination in respect of the cancelled or terminated Service(s); plus
(ii) by way of liquidated damages an amount equal to the Rental payable for the remainder of the Minimum Period in respect of the cancelled or terminated Service(s) LESS the amount of Rental already paid by You in respect of such period; plus
(iii) Our reasonable costs incurred in the removal and storage of the Equipment; and
(iv) any other cancellation or termination charges referred to in the Special Terms for the Service, the Price Guide or as otherwise agreed by the Parties in writing.
8.16.2 for termination before the relevant Service Commencement Date:
(i) the sum of the Connection Charges and Rental for the fi rst three (3) months; plus
(ii) any sum payable by Us to a third party in respect of the cancelled Service(s); and
(iii) any other cancellation or termination charges referred to in the Special Terms for the Service, the Price Guide or as otherwise agreed by the Parties in writing.
8.17 Call Charges shall be calculated by reference to Your use of the Service as recorded by Us and not by reference to Your records.
8.18 When We provide, terminate, or make changes to the Service we provide in response to customers’ requests We aim to refl ect the effect of any such changes in the next invoice We issue following that Service alteration. Where this is not
possible We shall endeavour to ensure the effect of any changes in Service will be shown no later than the third invoice following the changes. If You have a query about Your invoice or complain that it is inaccurate We will endeavour to correct
any upheld billing errors no later than the third invoice following receipt of Your communication.
9. Service Levels
9.1 We will use the reasonable skill and care of a competent electronic communications service provider in providing the Service. However, You accept that it is technically impracticable to provide the Service entirely free of faults and We do not undertake to do so.
9.2 We will comply with Our obligations as set out in the Service Level Agreement. We will have no liability other than that expressly set out in the Service Level Agreement in relation to any failure to meet the service levels (if any).
9.3 You may be entitled to claim Service Credits in respect of any failure by Us to meet service levels set out in an applicable Service Level Agreement. Service Credits, if any, shall be Your sole and exclusive remedy with respect to Our failure to meet service levels.
9.4 For the avoidance of doubt, Service Credits will not be available to You to the extent that Our failure to meet any service levels results from suspension or termination of this Agreement pursuant to Clauses 14 and 15 or from any force majeure event as described in Clause 17 or from Your act, fault or omission.
10. Using the Service
10.1 You undertake not to re-sell for money or money’s worth the Service or Equipment or any part thereof to any person without Our prior written consent.
10.2 You undertake to use the Equipment and Service in accordance with such conditions and/or instructions as We may notify to you in writing from time to time and in accordance with Law.
10.3 You must not use or allow anyone to use the Service:
10.3.1 to send or receive a communication which is offensive, abusive, indecent, obscene or menacing;
10.3.2 to cause annoyance, inconvenience or needless anxiety to anyone;
10.3.3 to violate or infringe the rights of any person;
10.3.4 in breach of the Agreement; or
10.3.5 in breach of the Law.
10.4 We may at our discretion immediately on notice to You suspend the Service and/or terminate the Agreement if You are in breach of Clauses 10.1, 10.2 or 10.3. You must indemnify and hold Us harmless against all liabilities, claims, damages, losses and proceedings arising out of or in any way connected with any use of the Service in contravention of this Clause 10 or the Law.
10.5 You must not change the confi guration of the Equipment or use the Service in excess of any capacity or other restrictions imposed by the Agreement or otherwise agreed in writing. If You breach this Clause 10.5 We may without prejudice to Our other rights, increase the Charges as We reasonably think fit and You shall pay such increased Charges. Clause 8.4 shall not apply to such increase in Charges.
10.6 We may allocate You a Password, to enable You to use the Service. You must keep such Password safe and confidential and notify Us immediately if any third party becomes aware of it. You must not copy or attempt to copy any smart card or other security device. We reserve the right to change the Password without notice and if We have reason to believe You are in breach of this Clause 10.6 to invalidate such Password and/or to terminate the Agreement.
10.7 We may (but shall not be obliged to) agree to any request by You to alter a Password. You may be required to pay a charge for such alteration.
10.8 If the Service requires You to open an account You must complete the registration process by providing Us or such person as We nominate with current, complete and accurate information as requested from time to time.
10.9 You are responsible for the use of the Service (whether authorised or not and whether by You or any other person), including without limitation all Charges incurred and any breaches of this Agreement.
11. Intellectual Property Rights
11.1 If in the course of or as a result of any Service We provide to You, We or any of Our employees or agents create any documentation, drawings or information, all legal and benefi cial rights therein shall be owned by Us. Where We provide such
documentation or material to You to enable You to use the Service, We grant You a non-exclusive non transferable licence to use the documentation or material for such purpose only.
11.2 Intellectual property rights in all software (in whatever form) We provide to You for the purpose of using the Service or Equipment shall remain Our property or that of Our licensor. We grant You a non-exclusive non-transferable licence to use the software for the purpose of using the Service or Equipment and for no other purpose. You agree to comply with the licensing terms imposed or required by Our licensor (if applicable) in respect of Your use of the software.
11.3 You shall:
11.3.1 treat the documentation or material under Clause 11.1 and software under Clause 11.2 as Confidential Information (as defi ned in Clause 25) and comply with the provisions of Clause 25 in relation to it;
11.3.2 not reproduce the software except for archival or back-up purposes and in those circumstances ensure that each copy contains all of the original software’s
proprietary notices;
11.3.3 not adapt, modify, translate, reverse engineer, decompile, disassemble (except to the extent that applicable laws specifi cally prohibit such restriction) the software or create derivative works based on any of the software or any documentation accompanying the software; and
11.3.4 on termination of this Agreement for any reason, immediately return all copies of the software to Us and expunge any copies of the software from any computer, word processor or other data storage device in Your control.
11.4 Subject to Clause 11.6, We will indemnify and hold You harmless against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the provision of the Service to You
infringes the intellectual property rights of that third party (an ‘Intellectual Property Infringement’) provided that You:
11.4.1 give Us notice of any Intellectual Property Infringement forthwith upon becoming aware of the same;
11.4.2 give Us the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and do not at any time admit liability or otherwise attempt to settle or compromise such liability or otherwise attempt to settle or compromise such claim or action except upon Our express written instructions; and
11.4.3 act in accordance with Our reasonable instructions and give Us such assistance as We may reasonably require in respect of the conduct of such defence including without prejudice to the generality of the foregoing the fi ling of all pleadings and other court processes and the provision of all relevant documents.
11.5 We will reimburse You Your reasonable costs incurred in complying with the provisions of Clause 11.4.
11.6 We shall have no liability to You in respect of an Intellectual Property Infringement if the same results from Your negligence or wilful misconduct and/or any breach of Your obligations under this Agreement.
11.7 In the event of an Intellectual Property Infringement claim against You, We will be entitled at Our own expense and option to:
11.7.1 procure the right for You to continue using the Service; or
11.7.2 make such alterations, modifi cations or adjustments to the Service that it becomes non-infringing without incurring a material diminution in performance or
function; or
11.7.3 replace the Service with non-infringing substitutes provided that such substitutes do not entail a materialdiminution in performance or function.
11.8 If We in Our reasonable judgement are not able to exercise any of the options set out in Clause 11.7 then We will be entitled to terminate this Agreement by giving You 30 days written notice.
11.9 You shall indemnify Us against any damages (including costs) awarded against Us or to be paid by Us in respect of any claims or proceedings arising in any jurisdiction from an Intellectual Property Infringement (or alleged Intellectual
Property Infringement) arising from:
11.9.1 work carried out by Us, Our employees or subcontractors in accordance with directions or specifi cations You give Us; or
11.9.2 the connection and/or use of any Customer Apparatus in conjunction with the Service.
11.10 We shall notify You within 7 days of becoming aware of an Intellectual Property Infringement for which You are liable under Clause 11.9 and We shall:
11.10.1 make no admission relating to the Intellectual Property Infringement;
11.10.2 allow You full discretion to conduct or settle all negotiations and proceedings, subject to Us receiving reasonable security for costs and damages; and
11.10.3 give You all reasonable assistance in respect thereof.
11.11 You shall reimburse Us Our reasonable costs incurred in complying with the provisions of Clause 11.10.
11.12 The Service may comprise software, services, technical information, training materials or other technical data which are subject to the United States of America Export Control Regulations or the laws or regulations of another country. You may not download or otherwise export or re-export, either directly or indirectly, the software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
12. Maintenance
12.1 We are responsible for the maintenance of the Communications Network, the Equipment and the Service and shall provide a fault reporting facility to You that may be used by such of Your representatives as the Parties agree. When a fault is reported We will use our reasonable endeavours to take such steps and give such advice as may be appropriate to restore normal operation of Service.
12.2 We will be entitled to charge and You will pay a service fee at Our then current charging rates in the event that the need for any maintenance results from any one or more of the following:
12.2.1 Your misuse or neglect of or accidental or wilful damage to the Equipment, Purchased Equipment and/ or Service; or
12.2.2 power failure; or
12.2.3 accidental or wilful disconnection of the Equipment, Purchased Equipment and/or Service; or
12.2.4 Your failure to comply with any of the provisions of the Agreement; or
12.2.5 a fault in, or other problem associated with, any electronic communications system not run by Us or in Your own equipment.
13. Limitations of Liability
13.1 Each Party accepts unlimited liability for fraudulent misrepresentation and for death or personal injury resulting from its own negligence or that of its employees, agents or contractors while acting in the course of their employment by such Party. However, nothing in this Clause gives a Party any right or remedy which it would not otherwise have. Nothing in the Agreement shall exclude or restrict a Party’s liability for matters which cannot by Law be excluded or restricted.
13.2 Except as expressly stated in the Agreement all warranties, conditions, undertakings or terms, express or implied in respect of the Service, Equipment and Purchased Equipment (including any software used in any of the foregoing) are excluded to the fullest extent permitted by Law.
13.3 Subject to Clauses 13.4 and 13.5 below We accept liability for direct physical damage to Your property and the Site only where such damage arises solely and directly from the negligence of Our employees, agents or contractors while acting in the course of their employment.
13.4 Save in relation to payment of indemnities pursuant to Clauses 3.10, 10.4 and 11.9 and subject to Clause 13.1, during any Year of this Agreement each Party’s total liability to the other for all claims (other than for payment of Charges) arising in respect of such Year (including without limitation liability for negligence)
under the Agreement shall be limited to an amount not exceeding the greater of:
13.4.1 the total Charges paid by You to Us during such Year; and
13.4.2 £100,000
13.5 Notwithstanding the above, but subject always to Clause 13.1, neither Party shall have any liability in contract, tort or otherwise (including liability for negligence) arising out of or in connection with its performance, contemplated performance or non-performance of the Agreement, for:
13.5.1 loss or damage, whether direct or indirect, of business, production, data, operation time, goodwill, contracts, revenue and profi ts;
13.5.2 any loss of anticipated savings;
13.5.3 wasted expenditure; or
13.5.4 any special, indirect or consequential loss whatsoever, even if such loss was reasonably foreseeable.
13.6 If a number of claims give rise to substantially the same loss they shall be regarded as giving rise to only one claim under the Agreement.
13.7 Unless otherwise stated in the relevant Special Terms, Clauses 13.1 to 13.7 set out each Party’s entire liability (including any liability for the acts and omissions of its employees, agents or contractors) to the other Party in tort, contract or otherwise arising out of or in connection with the performance, contemplated performance or non-performance of the Agreement.
13.8 You acknowledge that the exclusions and limitations of Our liability in the Agreement are reasonable.
13.9 The provisions of this Clause 13 shall survive termination of the Agreement for any reason whatsoever.
14. Suspending the Service
14.1 We may suspend the Service or any part thereof:
14.1.1 in an emergency to provide or safeguard a service to a hospital or other emergency organisation or any other essential services;
14.1.2 temporarily to vary the technical specifi cation of the Service or for repair, maintenance or improvement or to protect life, limb or property;
14.1.3 or take any other action necessary in Our reasonable opinion to comply with instructions issued by the Government, a regulatory authority, an emergency service or other competent authority;
14.1.4 if You fail to make any payment to Us when it falls due;
14.1.5 if We suspect on reasonable grounds that You may have committed or may be committing any fraud against Us; or
14.1.6 in any circumstance in which We are entitled to terminate the Agreement.
14.2 Except in an emergency or pursuant to Clause 14.1.5 when no such notice is required, We shall give You as much notice as is reasonably practicable if the Service is to be suspended pursuant to Clause 14.1 but You shall have no claim against Us for any suspension of the Service pursuant to Clause 14.1. Any exercise by Us of our right to suspend the Service or any part of it shall not exclude or prejudice Our right subsequently to terminate the Agreement.
14.3 If the Service or any part of it is suspended because of Your default You will remain liable for and must continue to pay Charges during such suspension and shall reimburse Our costs and expenses reasonably incurred by the implementation of such suspension together with all outstanding amounts due under the Agreement. Where We agree (at Our discretion) to recommence the Service You must pay Our reasonable charges in relation to such recommencement and at Our discretion You shall pay a reasonable deposit against future payments.
15. Ending the Agreement
15.1 Without prejudice to any other termination rights set out in this Agreement (including without limitation in Clauses 2.3, 3.1, 8.8, 8.9.1, 10.4, 10.6, 11.8, 15.2 and 17.1) We may terminate the Agreement immediately on written notice if:
15.1.1 You commit a non-remediable breach of a material obligation of the Agreement; or
15.1.2 You commit a remediable breach of a material obligation of the Agreement (including without limitation failure to pay any Charges by the due date) and fail to remedy such breach within 30 days of the date we notify You of such breach; or
15.1.3 a liquidator (other than for the purposes of a bona fide amalgamation, reorganisation or reconstruction), administrative receiver, administrator, receiver,
bankruptcy trustee or similar offi cer is appointed in respect of the whole or part of Your assets and/or undertaking or You enter into an arrangement or composition with Your creditors, or You become unable to pay Your debts within the meaning of
section 123 Insolvency Act 1986; or
15.1.4 any licence, permission or other approval You or We require from time to time to connect to the Communications Network or provide the Service expires, is revoked, restricted or otherwise ceases to be valid and is not immediately replaced by a further licence, permission or approval conferring on You or Us the appropriate rights; or
15.1.5 You make a material misstatement in the details You supplied to Us to enable Us to provide You the Service; or
15.1.6 We suspect on reasonable grounds that You may have committed or may be committing (i) a breach of any Law; and/or (ii) any fraud against Us; or
15.1.7 any contract (or part thereof) between Us and a third party provider of telecommunications services is terminated where such termination effects the
provision of the Service.
15.2 You may terminate the Agreement immediately on written notice if:
15.2.1 We commit a non-remediable breach of a material obligation of the Agreement; or
15.2.2 We commit a remediable breach of a material obligation of the Agreement and fail to remedy such breach within 30 days of the date You notify Us of such breach; or
15.2.3 a liquidator (other than for the purposes of a bona fide amalgamation, reorganisation or reconstruction), administrative receiver, administrator or receiver is appointed in respect of the whole or part of Our assets and/or undertaking or We enter into an arrangement or composition with Our creditors, or become unable to pay Our debts within the meaning of Section 123 Insolvency Act 1986. Where You terminate this Agreement pursuant to Clause 15.2 the written termination notice must be sent to Us at the address set out in Clause 20.1.
15.3 On termination of the Agreement any licence granted to You by Us shall immediately cease, You must immediately stop using the Service and all amounts You owe Us for use of the Service shall be due and payable in full.
15.4 On termination of the Agreement by reason of Your default You shall be liable to pay Us Cancellation Charges. We will invoice you on or following such termination and such invoice shall be payable in accordance with Clause 8.6. We shall not be obliged to refund any Charges paid in advance.
15.5 On termination of the Agreement You must allow Us to remove the Equipment. If You delay removal of the Equipment following termination of the Agreement We shall, until such removal is completed, be entitled to continue to charge You and You shall pay such Charges together with any additional costs and expenses We incur due to such delay.
15.6 The right to terminate the Agreement shall not prejudice any other right or remedy of the Parties in respect of any rights, obligations, or liabilities accrued prior to termination.
16. Assignment and Sub-Contracting
16.1 You shall not assign, novate, delegate or otherwise deal with all or any of Your rights or obligations under this Agreement without Our prior written consent, such consent not to be unreasonably withheld.
16.2 We may assign or novate all or any of Our rights or obligations under the Agreement to any member of Our Group. At Our request You shall enter into a novation agreement with Us and any such member of Our Group to whom Our rights and obligations are to be novated.
16.3 We may sub-contract Our obligations under the Agreement. Any such sub-contracting shall not release Us from Our obligations under the Agreement.
17. Force Majeure
17.1 Neither Party shall be liable for any breach of its obligations under the Agreement (other than in relation to payment of sums due) where it is hindered or prevented from carrying out its obligations by any cause outside its reasonable control. Where such cause continues for more than 3 calendar months either Party may without additional liability terminate the Agreement by giving written notice to the other Party.
18. Changing the Agreement or Service
18.1 Subject to Clauses 18.2, 18.4 and 18.5 any variation to the Agreement shall be agreed by the Parties in writing.
18.2 Notwithstanding Clause 18.1 We reserve the right to amend or vary the Agreement (other than in relation to Charges which are governed by Clauses 8.3 and 8.4) by giving You 30 days written notice. Within 14 days of such notification You may give Us not less than 14 days written notice to terminate the Agreement
unless the amendment or variation is imposed by Law in which case You shall have no right to terminate. If You do not terminate in such period You are deemed to have accepted the amendment or variation.
18.3 If You request and We agree to a change of Service (including without limitation adding, deleting or exchanging a Service) or a change of Site, You must complete such formalities as We shall require to give effect to such change and You must pay Us our then current charges for such change. We may require payment prior to effecting such change. To refl ect such change We may without notice revise the Charges and the provisions of Clause 8.4 shall not apply to such revision.
18.4 Subject as stated in this Clause, We may vary the Service from time to time. In this Clause 18.4, ‘New Service’ shall mean the service after variation and ‘Original Service’ shall mean the Service prior to variation. Such variation may be the result, without limitation, of a change of name, method of delivery, change in technology, upgrade or substitution of alternative service and:
18.4.1 the New Service shall have at least equivalent functionality and service levels to the Original Service;
18.4.2 You will not be charged for such variation;
18.4.3 Charges payable for the Original Service shall apply to the New Service; and
18.4.4 the Minimum Period for the Original Service shall apply to the New Service.
After a variation in accordance with this Clause 18.4 the New Service shall be deemed the Service.
18.5 We may at any time improve, modify or otherwise alter the Service in the event that:
18.5.1 in Our reasonable opinion the Service should be altered for reasons of quality of service or otherwise for the benefi t of Our customers as a whole; or
18.5.2 technical reasons or Law so require.
18.6 Nothing written on the Order Form (in particular but without limitation in the section headed ‘Notes and comments’) shall vary any provision of these Standard Terms and Conditions or any Special Terms.
18.7 Any variation to the Agreement pursuant to Clauses 18.4, 18.5 or 22.1 of these Standard Terms and Conditions shall not be subject to the terms of Clause 18.2.
18.8 You may request a change in the Services (including without limitation relocation of the Equipment and/or Purchased Equipment). We will endeavour to comply with any such request made in writing. You must pay Our Charges for any
such change which payment We may require prior to commencing any works. If We instruct You to carry out any works in connection with such change You must carry out such works strictly in accordance with Our instructions. Any change in the Equipment and/or Service may result in an increase in the Charges for which You will not be entitled to terminate the Agreement pursuant to Clause 8.4.
19. Cancelling Part of the Service
19.1 You are entitled at any time to cancel part or some of the Service by giving Us ninety (90) days written notice.
19.2 Where You cancel part or some of the Service within the Minimum Period, You must pay Us the Cancellation Charges relating to the part of the Service cancelled. We will invoice you on or following such cancellation and such invoice shall be payable in accordance with Clause 8.6.
19.3 Where You wish to cancel part or some of the Service(s) following the expiry of the Minimum Period, You must give Us ninety (90) days written notice, except where otherwise specified in the Special Terms, of Your intention to cancel and must pay all Charges payable under this Agreement in respect of the cancelled Service(s) during this ninety (90) day notice period.
20. Notices
Unless otherwise stated in the Agreement:
20.1 Notices You send to Us shall be delivered by hand or sent by post to the Head of Customer Services at Virgin Media Business, Business Customer Services, PO Box 1787, Sheffi eld S9 3UH or such other address as notifi ed to You in writing.
20.2 Notices We send to You may be sent:
20.2.1 by hand or by post to Your billing address specified on the Order Form or to Your registered office; or
20.2.2 by fax to Your fax number specifi ed on the Order Form or as otherwise notified to Us in writing;
20.2.3 by electronic mail to Your electronic mail address specifi ed on the Order Form or as otherwise notified to Us in writing; or
20.2.4 by SMS to your mobile phone number specified on the Order Form or as otherwise notified to Us in writing.
20.3 Notice given by hand shall be deemed given the same day. Notice given by post shall be deemed to have been given 3 days after the date of posting. Notice given by fax shall be deemed given when transmitted provided that the sender shall have received a transmission report confi rming correct transmission. Any communication by electronic mail shall be deemed to have been made on the Working Day on which the notice is first stored in the other Party’s electronic mailbox. Any communication by SMS shall be deemed to have been made on the Working Day on which the notice is first stored in the other Party’s message inbox.
20.4 When sending us a written notice to terminate the Agreement or cancel any Service You must ensure that You keep a copy of the notice and proof of delivery.
20.5 References to notices in Clause 20.1 to 20.3 are to written notices. For the avoidance of doubt if in this Agreement, notice is not stated to be required in writing, this Clause 20 shall not apply.
21. Data Protection and Marketing
21.1 When You wish to take Service(s) from Us, We will check the following records about You, Your Group and Your business partners:
21.1.1 Our own records;
21.1.2 personal and business records at credit reference agencies (‘CRAs’). When CRAs receive a search from Us they will place a search footprint on Your business credit fi le that may be seen by other companies. They supply to Us both public (including the electoral register) and shared credit and fraud prevention information;
21.1.3 those at fraud prevention agencies (‘FPAs’); and
21.1.4 if you are a director, We will seek confi rmation, from CRAs, that the residential address that You provide is the same as that shown on the restricted register of directors’ usual addresses at Companies House.
21.2 We will make checks such as assessing Your application for Service and verifying identities to prevent and detect crime and money laundering. We may also make periodic searches at CRAs and FPAs to manage Your account with Us.
21.3 Information You give Us will be sent to CRAs and will be recorded by them, including information on Your business and its proprietors and CRAs may create a record of the name and address of Your business and its proprietors if there is not one already. We will give details of Your account(s) and how You manage it/them to CRAs.
21.4 If You do not pay amounts due in full and on time, CRAs will record the outstanding debt. This information may be supplied to other organisations by CRAs and FPAs to perform similar checks and to trace Your whereabouts and recover debts that You owe. Records remain on fi le for 6 years after they are closed, whether settled by You or defaulted. If You do not make payments that You owe Us, We will trace Your whereabouts and recover debts.
21.5 We will do a search to verify Your identity. This involves checking the details You supply against those held on any databases CRAs have access to. This includes information from the Electoral Register and FPAs. A record of this search will be kept that may be used to help other companies to verify Your identity. We may also pass information to financial and other organisations involved in fraud prevention to protect Us and Our customers from theft and fraud. If You give Us
false or inaccurate information and We suspect fraud, We will record this and share this information with other organisations.
21.6 If You give Us false or inaccurate information and We suspect or identify fraud We will record this and may also pass this information to FPAs and other organisations involved in crime and fraud prevention. We and other organisations may access and use from other countries the information recorded by FPAs.
21.7 In order to maintain quality and for training purposes We may monitor and record Our telephone conversations with You.
21.8 We shall be entitled to communicate information that describes the habits or usage patterns and/or demographics of the whole or a part of Our customer base (including You) but which is anonymous and does not describe or reveal the identity of any particular customer to any third party.
21.9 Unless You have ticked the relevant boxes on the Order Form or You notify Customer Services in writing at the address set out in Clause 20.1, We may:
21.9.1 use information provided by You to supply You with information about other products or services We or a member of Our Group have available; and
21.9.2 provide information supplied by You to third parties to enable them to supply You with information about their products or services.
21.10 You agree that We shall be at all times authorised to provide Your name and other contact details to the emergency services. Unless You notify Us in writing that You withdraw such authorisation We shall also be authorised to provide such details to third party communications operators and directory service providers. Subject to Clause 13.1 We accept no liability for any publication (including where such publication by Us would be in breach of this Agreement) made by such emergency services or third party communications operators.
21.11 By ordering the Service(s) provided by Us and/or by using them You are providing Us with Your consent to use Your personal information together with other information for the purposes of providing You with the Service(s), service information and updates, administration, credit scoring, identity checks, fraud prevention, customer services, training, tracking use of Our Service(s) (including processing call, usage, billing, and interactive data), profiling your usage for so long as You are a customer and for as long as is necessary for these specified purposes after you terminate the Service(s). Occasionally third parties may be used to process your personal information in the ways outlined above. These third parties are permitted to use the data only in accordance with Our instructions.
21.12 We may use any information supplied by You for the purposes set out in this Clause 21, for other purposes for which You give Your specifi c permission, or for any other purpose required by Law. Without limitation We shall be entitled to disclose information provided by You to any member of Our Group, debt collection agencies, CRAs, credit or fraud monitoring schemes, security agencies or credit providers. To enable Us to provide the Service We shall also be entitled to disclose such information to other electronic communications services providers.
21.13 This Clause 21 is a condensed version of how Your data may be used. If You would like to read the full details of how Your data may be used please visit Our website at www.virginmediabusiness.co.uk or speak to Our Customer Services team. In case of any inconsistency between this Clause 21 and such full details the latter shall prevail to the extent of the inconsistency.
22. Test or Trial Services and Promotional Offers
22.1 We may from time to time supply test or trial services and/or promotional offers (‘Offers’) to some or all of Our customers. Such Offers shall be subject to any terms and conditions (‘Promotional Terms and Conditions’) We notify to Our
customers. Unless otherwise stated in the Promotional Terms and Conditions We shall not incur any liability under the Agreement in relation to such Offers. Promotional Terms and Conditions may require a variation to the Agreement in which case You will be deemed to have accepted in writing such variation on acceptance of the Offer. Unless otherwise stated in the Promotional Terms and Conditions an Offer may be amended or withdrawn by Us (in relation to some or all of Our customers) at any time and without notice. For the avoidance of doubt We are not obliged to include You in any Offer we make to Our other customers.
23. Entire Agreement
23.1 The Agreement represents the entire understanding between the Parties in relation to the provision of the Service and supersedes and extinguishes all other agreements or representations (except fraudulent misrepresentations) made by either Party, whether oral or written in respect thereto. In particular We shall not be
bound by any oral or written representation (except fraudulent misrepresentation) made by Our representatives unless specifi cally incorporated into the Agreement in writing.
24. Miscellaneous
24.1 No waiver by Us of any default by You under the Agreement shall operate or be construed as a waiver by Us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence We grant You shall imply a waiver of Our rights or shall in any way release, discharge or otherwise affect Your liability under the Agreement.
24.2 If any provision of the Agreement shall be prohibited or adjudged by a court of competent jurisdiction to be unlawful, void or unenforceable, such provision shall to the extent required be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement and shall not in any way affect any other circumstances or the validity or enforcement of the Agreement.
24.3 The provisions of the Agreement that are expressly or impliedly of a continuing nature shall survive termination of the Agreement for any reason whatsoever.
24.4 In the event of any inconsistencies between the contents of these Standard Terms and Conditions, the Special Terms, the Order Form, the Price Guide and the Service Literature, the order of precedence shall (unless expressly stated to the contrary) be (i) the Special Terms; (ii) the Standard Terms and Conditions; (iii) the Order Form; (iv) the Price Guide and (v) the Service Literature.
24.5 In the event of any inconsistency between the provisions of any Site access agreements entered into by You and Us or any member of Our Group and Clause 7.1, the terms of such Site access agreements shall prevail.
24.6 The Parties do not intend that the Agreement be enforceable by any person not a party to the Agreement under the Contracts (Rights of Third Parties) Act 1999.
25. Confidentiality
25.1 Each Party (in this Clause ‘Receiving Party’) undertakes to the other Party (‘Disclosing Party’):
25.1.1 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
25.1.2 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 Service (as the case may be) on a confidential and need-to-know basis; and
25.1.3 to use the Confidential Information solely in connection with the supply or use of the Service (as the case may be) and not for its own or the benefit of any third party.
25.2 You must not disclose the terms of this Agreement to any third party without Our prior written consent. We may tell others that You are a Customer of Ours but may not disclose the terms of this Agreement to any third party without Your prior
written consent.
25.3 The confidentiality obligations in Clauses 25.1 and 25.2 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, unless the Receiving Party is precluded by Law from doing so, it gives the Disclosing Party written notice as soon as practicable of such requirement.
25.4 The confidentiality obligations in Clauses 25.1 and 25.2 will not extend to the Confidential Information which the Receiving Party can prove to the Disclosing Party’s reasonable satisfaction:
25.4.1 has come into the public domain otherwise than through the default or negligence of the Receiving Party; or
25.4.2 was already in the Receiving Party’s possession prior to disclosure by the Disclosing Party; or
25.4.3 has been received from a third party who did not acquire it in confi dence.
25.5 Clause 25 shall survive termination of the Agreement or any part of it.
26. Governing Law and Arbitration
26.1 The Agreement shall be governed by and construed in accordance with the laws of England and subject to Clause 26.2, the Parties agree to submit to the exclusive jurisdiction of the English Courts.
26.2 Any dispute arising under the Agreement which does not involve either a complicated issue of law or a sum exceeding £5,000 may be referred to arbitration or such other means of dispute resolution as may be applicable and available from time to time.
26.3 We are fully committed to addressing all complaints, fully and fairly, and in a reasonable time frame. If you’d like to find out how We do this, please see Our Complaint Resolution Code of Practice which is available within the ‘Code of Practice’ section on Our Website, or ask Our team.
Download the Complaints Code of Practice
Download the Standard Terms & Conditions
