Terms and Conditions

Clearfone Limited - Conditions

1. APPLICATION AND BASIS OF CONTRACT

1.1 These Conditions incorporated the defined terms and rules of interpretation contained in clause 16. The Customer’s special attention is drawn to clauses 5, 6, 7, 11, 12 and 13 of these Conditions.

1.2 These Conditions will apply to the supply and (where applicable) the purchase of the Equipment and Services, provided to the Customer (as identified in the Commercial Details) by the Supplier, Clearfone Limited (incorporated in England and Wales with the registration number 15439695 and with its registered address at 71-75 Shelton Street, London WC2H 9JQ ). All of these Conditions shall apply to the supply of both Equipment and Services except where application to one or the other is specified.

1.3 The Order constitutes an offer by the Customer to purchase the Services and Equipment (as applicable) in accordance with these Conditions. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

1.4 Where the Customer is a Microenterprise, Small Enterprise Customer or a Not-for-Profit Customer (each as defined in Ofcom’s General Conditions of Entitlement) the Customer may have enhanced rights in connection with the Contract that arise under the General Conditions of Entitlement. These Conditions do not seek to exclude those rights where they are incapable of exclusion.

1.5 The Supplier’s employees, representatives and agents are not authorised to make any representations concerning the Equipment or the Services unless confirmed by the Supplier in writing. In entering into the Contract, the Customer acknowledges that it does not rely on any such representations, which are not so confirmed.

1.6 Acceptance of the Order is at the Supplier’s discretion and subject to the:

a. availability of the Equipment;

b. entering into of the Equipment Lease (where applicable); and

c. the Customer providing the Supplier with such information as the Supplier may reasonably request for the purpose of determining the Customer’s credit worthiness and, in this regard, the Customer acknowledges and agrees that the Supplier may carry out credit checks on the Customer, and shall only be deemed to be accepted when the Supplier countersigns the Order, at which point and on which date the Contract shall come into existence (Commencement Date).

1.7 Any Proposal given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days (or such shorter or longer period as may be specified in the Proposal itself) from its date of issue.

1.8 Where the Customer is to enter into an Equipment Lease, then:

a. the Equipment will be provided to the Customer by the Leasing Company subject to the terms of the Equipment Lease and not by the Supplier;

b. the Supplier has no liability or responsibility for the performance of the Leasing Company;

c. without limitation, the Supplier has no responsibility or liability for the Equipment, its performance, provision or supply, or for any Losses that the Customer may suffer or incur in connection with its entry into the Equipment Lease or its contractual relationship with the Leasing Company;

d. it is a condition of the Contract that the Customer has entered into the Equipment Lease on or by the Commencement Date and has provided a true copy thereof to the Supplier; and a. the Supplier shall provide Services only (and not Equipment), and the Contract will be construed to that effect and nothing in the Contract will make the Supplier liable for the provision or performance of the Equipment.

2. EQUIPMENT - THIS CLAUSE 2 DOES NOT APPLY WHERE THE CUSTOMER HAS ENTERED INTO AN EQUIPMENT LEASE

2.1 The Equipment is described in the Proposal. The Supplier reserves the right to amend the specification or description of the Equipment if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer as soon as reasonably possible in any such event.

2.2 The risk in the Equipment shall pass to the Customer on delivery in accordance with clause 3.

2.3 Where the Supplier has agreed to sell and the Customer has agreed to purchase the Equipment for a single payment at the start of the Contract, then title to the Equipment shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Equipment.

2.4 Where the Supplier has agreed to accept payment for the Equipment by way of instalments (and those instalments are not expressed in the Commercial Details as being in connection with the hire of the Equipment) over the term of the Contract as part of the Service Charges, then title shall only pass to the Customer if: a. the Supplier has received in full and in cleared funds payment of all Service Charges (and any other sums) owing from the Customer throughout the term of the Contract; b. the Contract has not terminated before the end of the Initial Contract Period (or any extension thereto) (for any reason); and c. the Customer is not in breach of any of the terms of the Contract.

2.5 Provided that the requirements of clause 2.4 have been met then such title to the Equipment as the Supplier had on the Commencement Date shall transfer to the Customer automatically upon receipt by the Supplier in full and in cleared funds of the final instalment of the Service Charge. The Equipment shall transfer to the Customer in the condition and at the location in which it is found on the date of transfer (and the Supplier provides no warranty or assurance as to the condition of the Equipment at that time).

2.6 In each case, until title to the Equipment has passed to the Customer, the Customer shall:

a. maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price on the Supplier's behalf from the date of delivery;

b. not, without the prior written consent of the Supplier, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;

c. not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify the Supplier and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Supplier on demand against any and all Losses suffered or incurred by the Supplier as a result of such confiscation;

d. notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.5(b) to clause 12.5(d); and

e. give the Supplier such information as the Supplier may reasonably require from time to time relating to:

i. the Equipment; and

ii. the ongoing financial position of the Customer.

2.7 At any time before title to the Equipment passes to the Customer, the Supplier may require the Customer to deliver up all Equipment in its possession at the Customer’s cost and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment is stored in order to recover it.

3. DELIVERY OF EQUIPMENT - THIS CLAUSE 3 DOES NOT APPLY WHERE THE CUSTOMER HAS ENTERED INTO AN EQUIPMENT LEASE

3.1 The Supplier shall deliver the Equipment to the location set out in the Commercial Details or such other location as the parties may agree in writing (Customer Premises) on or around the date notified by the Supplier for delivery and/ or instalment of the Equipment. Any dates quoted for delivery of the Equipment are approximate only, the time of delivery is not of the essence and any delay in meeting delivery, installation or performance dates shall not give rise to a right to cancel the Contract or to claim damages.

3.2 Delivery of the Equipment shall be completed on the arrival of the Equipment at the Customer Premises. The Supplier may terminate the Contract and charge the Customer for all associated costs or store the Equipment and charge the Customer for the costs of storing the Equipment (including insurance costs) if the Customer fails to take delivery of the Equipment and/ or permit entry to the Supplier (or its representatives) to install the Equipment.

4. WARRANTIES

4.1 In relation to the Equipment, the Supplier shall (where it supplies the Equipment) pass on the benefit of any unexpired warranties it receives from the manufacturer of the Equipment and, where the Equipment is provided by the Leasing Company, will use reasonable endeavours to do so (in both cases the Warranty), the length of which shall be as stated by the relevant manufacturer and is hereafter referred to as the Warranty Period.

4.2 If during the relevant Warranty Period, the Customer notifies the Supplier in writing of any inherent defect in the Equipment arising under normal use in consequence of which the Equipment fails to conform in all material respects with the specification, the Supplier shall use reasonable efforts to make a claim under the Warranty and obtain the remedy offered by the relevant manufacturer for the Customer. The Customer may be required to make a claim under the Warranty directly, and the Supplier shall notify the Customer that this is the case when the Customer contacts the Supplier to make a claim under the Warranty.

4.3 Where the relevant Equipment is a mobile phone and:

a. a repair is not free of charge under the relevant Warranty;

b. the Equipment has fallen out of Warranty; or

c. where the fault is caused by any of the factors or circumstances outlined in clause 4.5 or otherwise due to the Customer’s breach of the Contract, a quotation shall be provided for the cost of repair with an approved 3rd party repair facility.

4.4 The Supplier (or its approved provider) shall carry out diagnostic work to determine the scope of any repair work specified in clause 4.3 and shall be entitled to charge a fee based on its then applicable daily rates for the diagnostic work. The charge for the diagnostic work shall be paid by the Customer upon the Supplier’s written demand and the Supplier shall not be required to provide a quotation for repair work and/ or undertake any repair work until the charge for the diagnostic work has been paid in full by the Customer.

4.5 Where the defect arises due to:

a. physical damage (whether deliberate or negligent);

b. liquid ingress;

c. the Customer failing to follow the Supplier’s and/ or the manufacturer’s instructions as to the installation, use or maintenance of the Equipment or (if there are none) good practice regarding the same;

d. the Customer attempting to alter, repair, or tamper with the relevant Equipment without the written consent of the Supplier;

e. the Equipment being installed, used or stored in inappropriate conditions; or

f. the Customer committing any other act or omission which, under the terms of a Warranty, invalidates that Warranty, then the Warranty shall be invalidated, and the Customer shall be wholly responsible for the cost of repair or replacement.

5. SUPPLY OF SERVICES – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE

5.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects, however the Supplier is not able to guarantee fault-free performance given the nature of the Services. Due to factors outside the Supplier’s control (including, without limitation, use of and access to third party content and services, shared use of networks and communications services provided by third parties), internet access availability and speed may vary from time to time. In addition, the speed and limitations of the Customer’s equipment and infrastructure may affect the transmission speed that the Supplier can provide. The Supplier cannot provide a fully guaranteed end-to-end Service to be available at all times and does not warrant, represent or guarantee in any way whatsoever that the Services will be virus-free, worm-free, spam-free or inaccessible to malicious code or malignant third parties.

5.2 The Additional Terms Relating to Unified Communications Cloud Telephony Services set out in Schedule 3 shall also apply to the supply of the Cloud Telephony Services where applicable.

5.3 The Additional Terms Relating to Connectivity Services set out in Schedule 4 shall also apply to the supply of the Connectivity Services where applicable.

5.4 The Additional Terms Relating to Mobile Services set out in Schedule 5 shall also apply to the supply of the Mobile Services where applicable.

5.5 The Supplier shall use reasonable commercial endeavours to meet any performance dates for the Services specified in the Proposal, the Commercial Details or otherwise which are agreed in writing, but any such dates shall be estimates only, time shall not be of the essence for the performance of the Services and (without limitation) the Customer will have no right to terminate or suspend the Contract as a result of any delay by the Supplier in meeting any performance dates. Without limitation, the Supplier shall not be liable for any delay or failure to provide the Services (or any of them) caused by any default of the Customer or any Force Majeure Event.

5.6 The Customer acknowledges and agrees that the Supplier may be reliant on third party suppliers and, in some cases, require planning consents, wayleaves or rights of way for installations and to provide the Services. Any delays caused by such matters are beyond the control of the Supplier and accordingly the Supplier shall have no liability for such delays or for any Losses suffered or incurred by the Customer as a direct, indirect or special consequence of them. Consequently, the Customer will not commit to any work or activities that are dependent on deadlines being met by the Supplier.

5.7 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

5.8 The Customer acknowledges and agrees that the Supplier may withdraw any offer to provide or cease to provide or discontinue providing certain third-party Equipment, products or the Services without liability to the Customer for which specifications and discontinuances are subject to change at the election of such third-party provider without notice, the Supplier shall endeavour to provide 30 days’ notice of such discontinuances or changes where possible.

5.9 The Customer understands and agrees that the Supplier may refuse to provide the Equipment (if applicable) and the Services and terminate the Contract (where already formed) without liability to the Customer where:

a. a site survey finds that a site is not suitable or safe for the provision of the Services;

b. the Supplier (or its nominated representatives) finds that additional work will be required to facilitate the installation of the Equipment and/ or the provision of the Services and the Customer does not agree to pay the additional costs or charges (including but not limited to any construction charges) required to enable the Supplier to provide the Services;

c. commission testing fails and the Supplier (or its nominated representatives) cannot determine the cause or rectify the fault after using reasonable commercial endeavours;

d. the Customer fails to enter into the Equipment Lease or the Equipment is not provided by the Leasing Company for any reason; or e. the Customer fails any credit check referred to in clause 1.5(c).

5.10 For the avoidance of doubt the rights to withdraw an offer and/or to terminate the Contract set out in clause 5.9 apply to and are exercisable by the Supplier only

6. CUSTOMER'S OBLIGATIONS – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE

6.1 The Customer shall:

a. ensure that the terms of the Order and any information it provides to the Supplier is complete and accurate;

b. co-operate with the Supplier in all matters relating to the Contract;

c. provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer Premises, office accommodation and other facilities as reasonably required by the Supplier to perform its obligations under the Contract;

d. provide the Supplier with such information and materials as the Supplier may reasonably require in order to perform its obligations under the Contract, and ensure that such information is complete and accurate in all material respects;

e. prepare the Customer Premises and its own equipment and infrastructure for the supply and installation of the Equipment (where applicable) and Services;

f. be and at all times remain responsible for the installation, configuration, performance, maintenance and use of the Equipment (where applicable) and Services beyond the Service Demarcation Point and for the security, suitability, maintenance, compatibility, state and conditions of its own equipment (including but not limited to any hardware, cabling, handsets, headset and other equipment) used in connection with the Equipment (where applicable) and Services;

g. be and at all times remain responsible for the provision, maintenance and upkeep of an environment suitable for the provision of the Equipment (where applicable) and Services. For the avoidance of doubt, this includes adequate and consistent electrical power as required for the supply of the Services;

h. provide the Supplier with the contact details of employees or other representatives with sufficient authority and capacity to liaise with the Supplier and agree any changes to the Services;

i. obtain and maintain all necessary licences, permissions and consents which may be required for the Services (including those required under any Equipment Lease) before the date on which the Services are to start;

j. only use the Services for lawful purposes and any material transmitted through the Services, or use of any part of them, in violation of any applicable law or regulation, which is otherwise defamatory, discriminatory, or derogatory is prohibited;

k. comply with all applicable laws, including health and safety laws and the acceptable use policies or other lawful contractual requirements of any third party suppliers or subcontractors or the Supplier;

l. keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;

m. comply with the Equipment Lease (where applicable);

n. take all reasonable steps to keep any password issued or created to access the Equipment (where applicable) and/or Services private and confidential and ensure that it does not become known to other persons. If the password becomes known to any other person, the Customer will immediately inform the Supplier and the password will immediately be changed. The Supplier may change the Supplier’s password from time to time at their discretion without prior notice; and

o. comply with any additional obligations or reasonable instructions notified by the Supplier from time to time in relation to the supply of the Equipment (where applicable) and Services.

6.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default): a. without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services and/or its other obligations under the Contract until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations; b. the Supplier shall not be liable for any Losses suffered or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 6.2; and c. the Customer shall reimburse the Supplier on written demand for any Losses suffered or incurred by the Supplier arising directly or indirectly from the Customer Default.

7 CHARGES AND PAYMENT – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE AND CLAUSE 7.3(D) IN PARTICULAR

7.1 The price for Equipment (where applicable) and the Service Charges: a. shall be the amounts set out in the Order or, if no price is stated, the price set out in the Proposal subject to any increases made in accordance with this Contract; and b. shall (unless otherwise set out in the Order or Proposal, as the case may be), be exclusive of all costs and charges of packaging, insurance and transport of the Equipment which shall be paid by the customer in addition, at the point of placing the Order for the Equipment.

7.2 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Installation of the Equipment (where applicable) and the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

7.3 The Supplier reserves the right to:

a. increase the Services Charges at any time (including during the Initial Contract Period) with immediate effect where the cost of providing the Services to the Supplier has increased due to any reasons beyond the control of the Supplier including but not limited to where any third-party supplier has increased its costs or a statutory or regulatory change results in increased costs in providing the Services to the Supplier;

b. increase the Services Charges at any time (including during the Initial Contract Period) with immediate effect where the Customer’s requirements change or a Customer Default results in increased costs to the Supplier;

c. increase the price of the Equipment (where applicable), by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to the Supplier that is due to:

i. any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

ii. any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the Equipment Specification;

iii. any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Equipment; or

d. increase the Services Charges on an annual basis and with effect from the day after each anniversary of the Commencement Date in line with the percentage increase in the RPI in the preceding 12-month period, plus 3%. The RPI rate shall be based on the latest available figure that has been published by the Office for National Statistics. For illustrative purposes only, if the Service Charges were £50 per month on the Commencement Date and the rate of RPI increases by 2% on the anniversary of the Commencement Date, the Supplier may increase the Service Charges under this clause 7.3(d) to £52.50 per month following the anniversary of the Commencement Date. The increase to the Service Charges in this clause 7.3(d) shall take place immediately; and

e. increase the Service Charges on the commencement of any Renewal Contract Period, provided that the Customer has been provided with sufficient advanced notice of that increase so as to allow it to exercise its right to terminate the Contract in accordance with clause 12.2. 7.4 In some cases, the price of Equipment may be calculated by the Supplier based on the assumption that the Customer will enter into agreements (including Airtime Agreements) with third party suppliers (including MNO’s) for a minimum period (for example where a discount and/or the price of Equipment is linked to/conditional on the completion of such a minimum period). Where this is the case, and the Customer terminates its agreement with the relevant third-party supplier before the relevant minimum period has expired, the Supplier reserves the right to increase the price of the Equipment or make other charges to reflect any increased cost to or loss/expense suffered by the Supplier as a result of such early termination.

7.5 Unless otherwise set out in the Proposal, in respect of Equipment (where applicable), the Supplier shall invoice the Customer either:

a. on or at any time after delivery where the Customer is making a single capital payment for the Equipment; or

b. as part of the monthly Services Charges.

7.6 Unless otherwise set out in the Proposal, in respect of Services, the Supplier shall invoice the Customer:

a. for any one-off costs (as identified in the Proposal and which may include installation, configuration, training, and number port charges or otherwise in this Contract) on or at any time after the Commencement Date; and

b. for other ongoing Service Charges (as identified in the Proposal), monthly in advance.

7.7 The Customer shall provide its bank with a compliant and complete Direct Debit Instruction (DDI) permitting the Supplier to collect the Service Charges via Direct Debit and accordingly the Supplier shall be authorised to collect the Service Charges via Direct Debit. The Customer agrees not to suspend or cancel the Direct Debit Instruction (DDI) at any time during the term of the Contract without the Supplier’s consent.

7.8 The Customer agrees that it is liable for any charges on the Customer’s Services account regardless of whether the Customer or anybody else (with or without the Customer’s permission) incurs those charges. For the avoidance of doubt, the Supplier considers anyone who has access to the Customer’s premises or has been given access to the Services (whether deliberately or by default or weaknesses in the Customer’s security) to be within the Customer’s control and the Customer would be liable for those charges. If the Customer becomes aware of any fraud by someone else, it must immediately notify the Supplier. The Customer shall be deemed to have given permission to use the Customer’s account and add charges on to the Customer’s account to any other individual or party to whom they have divulged any PINs or passwords relevant to the Services.

7.9 All other invoices raised by the Supplier which are not payable by Direct Debit shall be paid by the Customer:

a. within 14 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and

b. in full and in cleared funds to a bank account nominated in writing by the Supplier.

7.10 Time for payment by the Customer under this clause 7 shall be of the essence.

7.11 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.

7.12 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 12, the Customer shall indemnify the Supplier against all Losses (including court costs, debt collection and legal fees) in recovering the overdue amount from the Customer and shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.12 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

7.13 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8 INTELLECTUAL PROPERTY RIGHTS

8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier or its relevant licensor.

8.2 At the request and expense of the Supplier, the Customer shall do all such things and sign all documents or instruments reasonably necessary to enable the Supplier to obtain, defend and enforce the Supplier’s rights (or those of its licensor) in any Intellectual Property Rights in or arising out of or in connection with the Services.

9 DATA PROTECTION

9.1 In this Clause, the following terms shall have the following meanings: a. "controller", "processor", "data subject", "personal data", "processing", "process" and “appropriate technical and organisational measures” shall have the meanings given in the Applicable Data Protection Law; and b. "Applicable Data Protection Law" shall mean all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the UK GDPR (as defined in the DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended) and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

9.2 The Customer, as controller, appoints the Supplier as a processor to process the personal data that is the subject of the Contract, which the parties anticipate shall include, without limitation, names, email addresses, telephone numbers, location data, internet protocol (IP) addresses, mobile phone identifiers relating to the Customer’s staff, officers, end users, agents and business partners (the Data). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law. Without prejudice to the generality of this clause

9.2, the Customer will ensure that it has all necessary consents and notices in place to enable lawful transfer of the Data to the Supplier for the duration and purposes of the Contract so that the Supplier may lawfully use, process and transfer the Data in accordance with the Permitted Purpose (as defined in clause

9.3) on the Customer's behalf. 9.3 The Supplier shall process the Data as a Supplier as may be required to perform its obligations under the Contract and in accordance with the documented instructions of Customer (the Permitted Purpose), except where required by Applicable Data Protection Law to do otherwise.

9.4 The Supplier shall not transfer the Data outside of the UK unless:

a. it has the Customer’s documented instructions to do so;

b. it takes such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law; or

c. it is required to do so by any Applicable Data Protection Law.

9.5 The Supplier shall ensure that any person that it authorises to process the Data (including Supplier’s staff, agents, suppliers and subcontractors) (an Authorised Person) shall be subject to a duty of confidentiality (whether a contractual duty or a statutory duty or otherwise).

9.6 The Supplier shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Data and against accidental loss or destruction of, or damage to, Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the Data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

9.7 The Customer consents to the Supplier engaging third party suppliers and sub-contractors to process the Data provided that the Supplier:

a. provides at least 7 days' prior notice of the addition or removal of any sub-contractor;

b. imposes processing terms on any sub-contractor it appoints that protect the Data to the same standard provided for by this clause; and

c. remains liable for any breach of this clause that is caused by an error or omission of its sub-contractor. If Customer refuses to consent to Supplier’s appointment of a third party sub-contractor on reasonable grounds relating to the protection of the Data, then either the Supplier will not appoint the sub-contractor or the Supplier may elect to suspend or terminate the Contract without penalty.

9.8 The Supplier shall provide reasonable assistance (including by appropriate technical and organisational measures) to the Customer (at the Customer’s expense) to enable the Customer to respond to any:

d. request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and

e. other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data.

9.9 If the Supplier believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform the Customer and provide the Customer with reasonable assistance (at Customer’s expense) to allow the Customer to conduct a data protection impact assessment and, if necessary, consult with its relevant data protection authority.

9.10 Upon termination or expiry of the Contract, Supplier shall (on Customer’s written instructions) destroy or return to Customer all Data (including all copies of the Data) in its actual possession or control (including any Data subcontracted to a third party for processing). This requirement shall not apply to the extent that Supplier is required by Applicable Data Protection Law to retain some or all of the Data.

9.11 The Supplier shall permit Customer (or its nominated auditor) to audit the Supplier's compliance with this clause. The Customer must:

a. give the Supplier not less than 35 days’ prior written notice of its intention to conduct such an audit;

b. conduct the audit during normal business hours; and

c. procure that it and its representatives enter into any reasonable confidentiality undertakings required by the Supplier and must take all reasonable measures to prevent disruption or harm to Supplier's operations. The Customer will not exercise its audit rights under this clause more than once in any twelve (12) calendar month period and will be responsible for all reasonable costs and expenses incurred by Supplier in connection with the audit.

9.12 The Supplier will inform the Customer if it believes any instruction from the Customer relating to the Data breaches Applicable Data Protection Law.

10 CONFIDENTIALITY

10.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.

10.2 Each party may disclose the other party's confidential information:

a. to its employees, officers, representatives, contractors or subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 10; and

b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11 LIMITATION OF LIABILITY – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE

11.1 The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

11.2 Subject to clause 11.3, the Supplier will not be liable in any way:

a. for any loss or damage which is caused to the Customer’s own equipment arising as a result of its use in connection with the Services and the Supplier provides no guarantee or assurance that any such equipment will be suitable for use in connection with the Services;

b. to provide any remedies, damages, credits, compensation or cover in respect of any Losses the Customer may suffer or incur over and above any amounts or remedies that the Supplier is able to recover from the applicable third-party manufacturer of the Equipment, Leasing Company or third party supplier of the Services;

c. for any Losses suffered or incurred by the Customer in connection with any Equipment provided by a Leasing Company;

d. for any Losses suffered or incurred by the Customer which are caused by a third-party supplier where the Customer would be able to recover those Losses (or a reasonable proportion thereof) directly from such third-party supplier;

e. for any adverse effects on the Services and/or Losses suffered or incurred by the Customer which are caused by or in connection with the Customer’s receipt and/or use of the Services other than in such manner as agreed by the Supplier and/ or any interference by the Customer or any third party which is not in accordance with the standard use of the Equipment or Services or following the Supplier’s or relevant manufacturer’s written instructions;

f. if the Customer is not able to use the Services because the Customer equipment (for example, any PC, modem, network interface card, printer, switch, local area network or other equipment) does not work properly, is not compatible with the Services, does not conform to the relevant standard, does not meet minimum specifications required in connection with the Services or because of faults in any third party networks over which the Supplier has no responsibility; or

g. for any temporary unavailability of Services due to planned maintenance, emergency maintenance or loss of use outside the reasonable control of the Supplier.

11.3 Nothing in the Contract limits or excludes any liability which cannot legally be limited, including liability for: a. death or personal injury caused by negligence; b. fraud or fraudulent misrepresentation; c. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or d. any other matter where it is not possible to limit or exclude liability.

11.4 Subject to clause 11.3, the Supplier shall not under any circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any: a. loss of profits; b. loss of sales or business; c. loss of agreements or contracts; d. loss of anticipated savings; e. loss of use or corruption of software, data or information; f. loss of or damage to reputation and goodwill; and g. indirect, special or consequential Loss, that arises under or in connection with the Contract.

11.5 Subject to clause 11.3, the Supplier's total liability to the Customer in respect of all Losses not excluded under clause 11.4 and which arise under or in connection with the Contract within any Contract Year, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Cap.

11.6 In clause 11.5, the following words and phrases have the following meanings: a. Cap: means one hundred per cent (100%) of the Total Charges in the Contract Year in which the relevant Losses arose; b. Contract Year: means a 12-month period commencing with the Commencement Date or any anniversary of it; and c. Total Charges: means all sums paid or payable by the Customer to the Supplier under the Contract in respect of Equipment and Services actually supplied by the Supplier, whether or not invoiced to the Customer. 11.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract. 11.8 This clause 11 shall survive termination of the Contract.

12 TERM AND TERMINATION – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE

12.1 The Contract shall come into effect on the Commencement Date and continue (unless terminated earlier in accordance with its terms) for the Initial Contract Period.

12.2 Subject to clause 12.3, the Contract shall automatically extend for a Renewal Contract Period at the end of the Initial Contract Period and at the end of each Renewal Contact Period, provided always that either party may give written notice not later than 1 month before the end of the Initial Contract Period or relevant Renewal Contract Period (as the case may be), to terminate the Contract at the end of the Initial Contract Period or the relevant Renewal Contract Period.

12.3 Where the Customer is a Microenterprise, Small Enterprise Customer or Not-For-Profit Customer (each as defined in Ofcom’s General Conditions of Entitlement) the Contract shall not automatically extend into Renewal Contract Periods without the Customer’s prior written consent.

12.4 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

a. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;

b. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

c. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or d. the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

12.5 Without affecting any other right or remedy available to it, the Supplier may terminate or suspend the Contract (or the provision of a particular Service) with immediate effect by giving written notice to the Customer if:

a. the Customer fails to pay any amount due under the Contract on the due date for payment;

b. the customer repeatedly breaches its obligations under the Contract;

c. where applicable, the Customer breaches the Equipment Lease;

d. required due to a regulatory or statutory change which affects the Supplier’s performance of its obligations under the Contract;

e. if the Supplier (or any relevant third party supplier) is obliged to comply with the order, instruction, or request of a court, government, agency, emergency service organisation, or other competent administrative or regulatory authority, requiring suspension to the Services;

f. if the Customer’s use of the Services has or may damage or disrupt the proper functioning of the infrastructure and/ or equipment used to provide Services to the Supplier’s (or its third party providers’) other Customers;

g. the Supplier has reason to believe that the Customer has provided the Supplier with false, inaccurate or misleading information either for the purpose of obtaining the Services or at any time during the provision of the Services;

h. the Supplier or its agents or third party suppliers need to carry out any maintenance, repairs or improvements to any part of the Services;

i. the Supplier believes (acting reasonably) that the Customer or another person associated with the Customer has committed, or may be committing, any fraud against the Supplier or against any other person or organisation by using the Services;

j. the Customer or anyone the Customer authorises to deal with the Supplier on the Customer’s behalf acts in a way towards the Supplier’s staff, third party suppliers or agents which the third party suppliers reasonably considers to be inappropriate;

k. the Customer is in breach of any applicable Acceptable Use Policy; or l. there is a change of Control of the Customer.

12.6 If the Supplier suspends the Services due to a breach of the Contract by the Customer or in accordance with its rights under clause 12.5 then without affecting any other right or remedy available to it, the Supplier may charge a reconnection fee to the Customer in addition to any outstanding amounts on the Customer’s account before any suspension of Service is lifted. Should the reconnection require a service call out the Supplier reserves the right to levy an additional charge to the Customer.

12.7 Without affecting any other right or remedy available to it, the Supplier may also suspend the supply of Services or all further deliveries of Equipment under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.5(b) to clause 12.5(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

13 CONSEQUENCES OF TERMINATION – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE

13.1 On termination of the Contract: a. the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Equipment supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; b. the Customer shall return all of the Supplier Materials and (where applicable) any Equipment which has not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

13.2 Save where the Customer has validly terminated the Contract in accordance with clause 12.2 or clause 12.4, upon termination of the Contract for any other reason, the Customer shall pay to the Supplier upon demand, the Termination Fees.

13.3 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

13.4 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

14 FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract (excluding payment obligations) if such delay or failure result from events, circumstances or causes beyond its reasonable control, which shall include but is not limited to acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical or biological contamination, or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party), non-performance by suppliers or subcontractors or other third parties (other than by companies in the same group as the party seeking to rely on this clause) and interruption or failure of utility service (a Force Majeure Event). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 16 weeks, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.

15 GENERAL

15.1 Assignment and other dealings a. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without notice to the Customer. b. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

15.2 Notices.

a. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

i. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

ii. sent by email to the correct address provided by the other party (as may be updated from time to time by notice in writing).

b. Any notice shall be deemed to have been received:

i. if delivered by hand, at the time the notice is left at the proper address;

ii. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

iii. if sent by email, provided that the sender does not recall the message nor receive notification of non-delivery, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause iii, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. If the sender receives notification of delayed delivery (an “out of office”) then delivery shall be deemed to have occurred at the time and on the date stated in the notice. c. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 15.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

15.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

15.6 Entire agreement.

a. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

b. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.

c. Nothing in this clause shall limit or exclude any liability for fraud.

15.7 Third party rights.

a. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

b. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

15.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives). Notwithstanding the foregoing, the Supplier may at its discretion amend these Conditions prior to the commencement of a Renewal Contract Period. Where the Supplier amends these Conditions in accordance with this clause 15.8 it shall notify the Customer of such amendments and, in the absence of the Customer serving notice to terminate the Contract in accordance with clause 12.2 the Customer shall be deemed to accept such amendments.

15.9 Dispute Resolution.

a. both Parties shall use reasonable endeavours to resolve any dispute under this Contract. If any dispute arises in connection with this Contract, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.

b. The payment of the Service Charges, the price of the Equipment and the Termination Fees shall not be included in the dispute resolution process set out in clause 15.9(a), and nothing in the Contract shall prevent the Supplier issuing proceedings against the Customer for non-payment of the Service Charges, the price of the Equipment or the Termination Fees, howsoever incurred.

15.10 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. 15.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

16 INTERPRETATION

16.1 The following definitions and rules of interpretation apply in these Conditions. DEFINITIONS: Acceptable Use Policy means any acceptable use policy relating to the Customer’s receipt and use of the Services, at notified to the Customer from time to time. Airtime Agreement means, where the Supplier is providing the Mobile Services, the agreement entered into between the Customer and the MNO or the Supplier. Business Day a day other than a Saturday, Sunday or public holiday in England, when UK clearing banks in the city of London are open for general business. Commencement Date has the meaning given in clause 1.6. Commercial Details the commercial specifics of the arrangement between the Customer and the Supplier as appended to the Conditions. Conditions these terms and conditions as amended from time to time in accordance with clause 15.8. Connectivity Services means the connectivity services provided by the Supplier to the Customer as set out in the Proposal, where applicable. Contract the contract between the Supplier and the Customer for the supply of Equipment and/or Services in accordance with these Conditions, the Commercial Details, and the Schedules. Control has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly. Customer the person or firm who purchases the Equipment and/or Services from the Supplier as detailed in the Order. Equipment the Equipment (or any part of it) set out in the Order or (where applicable) in the Equipment Lease. Equipment Lease where applicable the lease/hire agreement entered into between the Customer and the Leasing Company in respect of the Equipment Equipment Specification any specification for the Equipment, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier. Force Majeure Event has the meaning given to it in clause 14. Initial Contract Period the minimum term of the Contract as set out in the Commercial Details, which shall commence on the Start Date. Customer Premises has the meaning given in clause 3.1. Intellectual Property Rights patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Leasing Company where applicable, the party named as such in the Commercial Details Loss means actions, awards, charges, claims, compensation, costs, damages, demands, expenses, interest, fees, fines, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly. Merchant Services the merchant services set out in the Service Specification or Proposal where expressly selected in the Commercial Details Mobile Services means the mobile services provided by the Supplier to the Customer as set out in the Proposal, where applicable. MNO means, in relation to the Mobile Services, the mobile network operator notified to the Customer in writing that provides network services and SIM connections to the Customer. MNO Charges means the charges for the mobile services that are payable to MNO under the Airtime Agreement. Network the computer network owned or operated by a third party and used as part of the Connectivity Services. Order the Customer's order for the supply of Equipment and/or Services, as set out the order document provided by the Supplier and incorporating the information set out in the Proposal. Proposal the Supplier’s written proposal for the supply of the Services and Equipment. Renewal Contract Period the period specified in the Proposal or, where no such period is specified, a period of 12 months. RPI the Retail Prices Index. Service Demarcation Point the defined socket, equipment port or device to which the Supplier (or its subcontractor) delivers and supports the Service. Service Charges the charges for the Services as set out in clause 7.1. Services the services, supplied by the Supplier to the Customer as set out in the Service Specification and which may include the Connectivity Services, the Merchant Services, the Mobile Services and/ or the Unified Communications Cloud Telephony Services. Service Specification the description or specification for the Services as detailed on the Supplier’s website from time to time and any additional description provided in writing in the Proposal by the Supplier to the Customer. SIM means a Subscriber Identification Module provided by the MNO in connection with the Mobile Services. Spend Forecast means the minimum spend commitment by the Customer over the Initial Contract Period as set out in the Order. Start Date the date upon which the supply of the Services commences following installation where applicable. Subsidy means a type of investment the Supplier makes in the Customer as detailed in the Airtime Agreement. Subsidy Value means the value of the Subsidy in GBP Sterling that the Supplier may make available to the Customer. Supplier Materials has the meaning given in clause 6.1(l). Technology Fund means credits applied to the Customer’s account to offset against the cost of certain Equipment or the Services at the Supplier’s published prices provided from time to time as detailed in the Proposal and Schedule 5. Termination Fees means the fees payable by the Customer as set out in Schedule 2 for early termination of the Contract. Unified Communications Cloud Telephony Services means the unified communications cloud telephony services provided by the Supplier to the Customer as set out in the Proposal, where applicable.

16.2 Interpretation:

a. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

b. A reference to a party includes its successors and permitted assigns.

c. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

d. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

e. A reference to writing or written includes email but not fax.

f. The provisions set out in the Schedules shall prevail and take precedence over any contradictory or conflicting terms set out in clauses 1 to 15 (inclusive) of the Conditions.

 

SCHEDULE 2 TERMINATION FEES

1. The Customer shall pay: a. the periodic fees for the Services (usually monthly) as outlined in the Order, multiplied by the number of months remaining in the term of the Contract; plus b. the Customer shall return the Subsidy Value or any proportion of the Subsidy Value already paid in advance by the Supplier to the Customer and, where Equipment has been provided as part of its Subsidy, the Customer may also be required to pay for the Equipment.

SCHEDULE 3 ADDITIONAL TERMS RELATNG TO UNIFIED COMMUNICATIONS CLOUD TELEPHONY SERVICES

1. CUSTOMER’S OBLIGATIONS

a. If the Customer’s Unified Communications Cloud Telephony Services includes Ethernet or Assured access then, unless the customer has ordered an installation of the router, it is the Customer’s responsibility to install the router at the Customer Premises or such other sites where this is required and neither the Supplier nor its subcontractor shall bear any liability for any delay the Customer’s failure to install may cause.

b. Where the Supplier agrees the Customer may use/supply its own router for any part of the Unified Communications Cloud Telephony Services then the Customer agrees that all responsibility and liability for such router (and all associated equipment) remains with the Customer. Should the Supplier or its subcontractor visit the Customer Premises or such other relevant sites due to a fault which is later found to be caused by equipment not provided by the Supplier then the Supplier will charge the Customer for such site visit and any additional costs incurred as a direct result. Use of the Customer’s own router(s) will affect the Demarcation Point of the Unified Communications Cloud Telephony Services.

c. The Supplier does not issue any IP address to be used with the Unified Communications Cloud Telephony Services. Access to and use of this address is controlled by the internet authorities and its use is subject to any rules which they may prescribe. The Supplier reserves the right to withdraw or change this address if for any reason the address ceases to be available.

d. The Supplier will provide the Customer with access to a third party internet portal account through which the Unified Communications Cloud Telephony Services can be controlled online. The Supplier shall use reasonable endeavours to maintain (but does not guarantee) access to such account 24 hours in every day on every day of the year and shall not be liable for any Losses suffered or incurred by the Customer which are caused by any restrictions in such access.

e. If the Customer requests and the Supplier agrees to upgrade the Customer’s bandwidth of the underlying access then additional charges will apply and the Supplier will advise you of these at the time.

f. The Unified Communications Cloud Telephony Services supports 999/112 public emergency call services and such calls will be routed to the national emergency call handling agents. However these services do not operate in the same way as PSTN fixed line 999/112 public emergency call services and connection to such services may not be possible in the event of a service outage caused by loss of connectivity to the internet for whatever reason. In such circumstances the Customer should use a separate line to make the emergency call. Furthermore it may on occasions not be possible for emergency services personnel to identify the Customer’s location and telephone number so this information should be stated promptly and clearly by you when making such a call.

g. Where the Supplier agrees that the Customer may use its existing or other new access circuits (including but not limited to broadband, Ethernet, leased line etc) not provided by the Supplier then it is the Customer’s responsibility to ensure such access meets the necessary requirements and functionality as defined in the “non-Supplier access Customer responsibilities document”, a copy of which is available on request. The Customer’s failure to meet such requirements and functionality may result in quality and set up issues or may mean the Unified Communications Cloud Telephony Services will not work. Where the Supplier does not provide the access, the Customer agrees that all responsibility and liability for such access remains with the Customer. Should the Supplier or its subcontractor visit the Customer Premises or other relevant site due to a fault which is later found to be caused by access not provided by the Supplier then the Supplier will charge the Customer for such site visit and any additional costs incurred as a direct result. Use of the Customer’s own access will affect the Demarcation Point of the Unified Communications Cloud Telephony Services.

h. Where the Supplier agrees that the Customer may use a third party to install the Unified Communications Cloud Telephony Services then the Customer agrees to indemnify the Supplier from any direct or indirect claims or losses, financial or otherwise, that the Customer may incur as a result of such installation by a third party. Use of a third party installer will affect the Demarcation Point of the Unified Communications Cloud Telephony Services.

i. At the end of each Business Day, if requested by the Supplier, the Customer agrees to sign off for the work carried out that day by the Supplier or its subcontractor. In the absence of an authorised representative then the Customer agrees that Supplier sign off shall have equivalent effect as if the Customer had signed it off. Such sign off shall not constitute full acceptance of the Unified Communications Cloud Telephony Services.

j. Where the Supplier provides the Customer with any of the user-based features (including but not limited to auto attendant, hunt group, call park, call pickup, call queue etc) and the Customer has not allocated these features to a user then the Supplier reserves the right to recover such unallocated features from the Customer’s account. The Customer can replace these features or add additional features at any time.

2. ACCEPTANCE

a. The Supplier will notify the Customer when the work carried out by the Supplier or its subcontractor at the Customer Premises to enable the Customer to receive the Unified Communications Cloud Telephony Services (Installation Service) has been completed. The Customer will inspect and test the Unified Communications Cloud Telephony Services for the purpose of ensuring that the Installation Services have been satisfactorily completed (Acceptance Testing). During Acceptance Testing, the Customer may notify the Supplier by email or telephone of any material non-conformity of the Unified Communications Cloud Telephony Services.

b. To the extent that such non-conformities will have, in the Supplier’s opinion, a material detrimental effect on the Unified Communications Cloud Telephony Services, the Supplier will use its reasonable commercial endeavours to remedy such non-conformities.

c. Acceptance Testing shall be conducted on an individual site by site basis and shall take place on the earlier of:

i. the Customer’s written confirmation to the Supplier or its subcontractor that the Acceptance Testing has been completed;

ii. where the Customer has not notified the Supplier under paragraph i. above, five (5) Business Days from the date of the Supplier’s notification to the Customer that the Installation Service has been completed; or

iii. where the Customer has notified the Supplier of material non-conformities, five (5) Business Days from the date on which the notified non-conformities were remedied, or immediately upon demonstration by the Supplier or its subcontractor that the notified non-conformities will not, in the Supplier’s opinion, have a detrimental effect on the Unified Communications Cloud Telephony Services.

d. Any additional time incurred by the Supplier remedying non-conformities notified by the Customer shall, at the Supplier’s sole discretion, be reflected in corresponding extensions to the affected timescales in the project plan (if any). Any additional time incurred by the Supplier investigating any notified non-conformities which later are found not to exist, will be charged to the Customer as a professional service on a time and materials basis in accordance with the rates notified to the Customer from time to time.

3. SERVICE LEVELS

a. General

i. Any timelines and dates provided in this Schedule 3 for the Installation Services and other activities are estimates only and are subject to engineer availability and the Customer complying with its obligations required to enable the Supplier to meet such timelines and. Any failure to meet any timelines and dates provided will not result in any financial compensation for the Customer and time is not of the essence in connection with such performance.

ii. Where the Supplier provides any target resolution timeframes for any faults in this Schedule 3 such timescales are based on the assumption that the incident or fault has been reported accurately and fully to the correct department. External suppliers may be involved in the resolution of any issues and in such case any target resolution timelines will not apply. Any failure to meet any resolution timelines provided will not result in any financial compensation for the Customer and time is not of the essence in connection with such performance.

iii. Any service availability targets provided to the Customer will not include outages which are outside of the control of the Supplier (as determined by the Supplier), planned or notified emergency maintenance works and user error. Any failure to meet any service availability targets provided will not result in any financial compensation for the Customer and time is not of the essence in connection with such performance.

b. Provisioning

i. All stated timelines are from the Supplier’s acceptance of a fully validated Order, and they exclude any activity that requires site survey, non-gold addresses or installations that require additional line plant. Timelines are subject to supplier engineer availability and failure to meet the guidelines below will not result in any financial compensation.

ii. All timelines are stated in Business Days. PRODUCT ORDER TYPE TARGET PROVISION TIMELINE Number Porting Single numbers and multiline 30 – 35 days (maximum lead times shown, dependent on current Communications Provider) Hosted Telephony PRIORITY OR CARE LEVEL TARGET RESOLUTION TIME Critical Fault - Loss of service. Multiple services affected 4 hours High - Loss of service - single customer or service 8 hours Medium - Disrupted service 3 Business Days Low - Single number destinations or Quality of Service 7 Business Days 

SCHEDULE 4 – ADDITIONAL TERMS RELATING TO CONNECTIVITY SERVICES

1. CUSTOMER OBLIGATIONS

a. The Customer hereby consents to the Supplier’s intermittent monitoring of the Services (whether authorised by statute or other legislation or otherwise) to ensure lawful use of the Services.

b. The Customer may use the Network to access other Internet connected networks world-wide and agrees to conform to any published and future protocols and standards, together with all applicable laws relating to such access. In the event that communications by the Customer do not conform to these protocols and standards, or applicable laws, or if the Customer makes profligate use of the Network to the detriment of the Supplier or any other of the Supplier’s customers, the Supplier reserves the right to restrict passage of the Customer’s communications until it gives a suitable undertaking as to use and adhere to such protocols, standards and applicable laws.

c. The Supplier is not responsible or liable for any third-party charges from other organisations (such as telephone service or content providers) which may be incurred by the Customer while using the Services. The Customer shall indemnify the Supplier for any claims or charges made against the Supplier in respect of any such costs incurred and the Customer expressly agrees that the Supplier may impose tariff limits in respect of the Customers use of the Services.

d. Any Internet address allocated by the Supplier to the Customer will at all times belong to the relevant supplier and the Customer may not sell or agree to transfer the address to any person. The Customer will have a non-transferable licence to use such Internet address whilst the Customer receives internet access from the Supplier. In the event the Contract is terminated, for whatever reason, the Customer’s licence to use the Internet address shall automatically terminate and thereafter the Customer shall not use the Internet address.

e. Without limiting the Customer’s obligations elsewhere in these Conditions, the Customer shall at its sole expense provide the Supplier and any subcontractor: i. with all requisite materials, facilities, access, materials and working conditions; and ii. safe and unencumbered access to, movement around and egress from the Customer’s premises, on any agreed installation date in order for the Supplier to carry out any installation in accordance with paragraph

2. Failure to do so by the Customer shall be a Customer Default for the purposes of these Conditions.

2. SUPPLIER OBLIGATIONS

a. The Supplier will configure and install items to the specification provided to the Customer in accordance with the rates detailed in the Proposal.

b. Installation shall be to the point identified by the Supplier as most accessible. In the event the Customer changes the specification for such installation/configuration the Supplier reserves the right to require payment for implementing such changes at rates notified to the Customer from time to time.

c. The Supplier will use reasonable commercial endeavours to carry out necessary maintenance and support of its own systems work outside of UK business hours (Planned Outages). The Supplier shall also use reasonable commercial endeavours to notify the Customer of any Planned Outages at least five days prior to such work being carried out, although the Customer accepts that due to the nature of the Services, this may not always be possible.

3. USING THE SERVICES

a. The Supplier reserves the right to remove material placed on its servers by the Customer or other users which:

i. violates these Conditions;

ii. Breaches applicable laws; or

iii. is otherwise harmful to the Supplier’s interests or the interests of other users of the Services.

b. The Supplier reserves the right to monitor and control data volume and/ or types of traffic transmitted via the Services. In the event that the Customer misuses or excessively (both in the reasonable view of the Supplier) uses the Service or their use does not comply with any ‘Acceptable Use Policy’, made to the Customer from time to time, the Supplier reserves the right to reduce, suspend or terminate the Customer’s access and use of the Services. During any such time of reduction or suspension, the Customer will remain liable for the payment of the original level of Service Charges. It is the Customer’s responsibility to review the Acceptable Use Policy from time to time, to ascertain if changes have been made to it.

c. The Supplier cannot guarantee that Headline Transmission Speeds can be obtained at any time, however the Supplier will use reasonable commercial endeavours to inform the Customer of any issues, and attempt to resolve them, as soon as is reasonably possible.

4. LIABILITY

a. Unless the Supplier expressly agrees otherwise under a separate contract the Supplier is not responsible for the security of the Customer’s networks and/or systems and shall not be liable for unauthorised access thereto.

b. The Customer acknowledges that the Supplier is unable to exercise control over the content of any information passing over the connection and or the Network. The Customer further acknowledges that the Supplier hereby excludes all liability in respect of any transmission or reception of information of whatever nature. To this end, the Customer acknowledges and agrees that the nature of the Services mean that it is impossible to provide a fully fault or delay free service.

5. WAYLEAVES

a. Where supply of Service to the Customer relies on the provision of wayleaves, the Supplier will use its reasonable commercial endeavours to ensure continuity and provision of Service. If for any reason whatsoever, the wayleaves are terminated or suspended preventing the supply of Service, then the Supplier may terminate the Contract or the individual Connectivity Service to the Customer by 7 days’ notice in writing or by email, without any liability to the Customer.

b. Where a wayleave is granted by the Customer the Customer will use its best endeavours to ensure continuity and provision of Service. If for any reason whatsoever, the wayleaves are terminated or suspended preventing the supply of Service, then the Supplier may terminate the Contract or the individual Connectivity Service to the Customer by 7 days’ notice in writing or by email, without any liability to the Customer.

6. TERMINATION

a. Where the Supplier has agreed to provide as part of the Services, ADSL broadband on PSTN lines, if the Customer terminates that Service and/ or the Contract at any time within 12 months from the Start Date, then without prejudice to the Supplier’s other rights and remedies, the Customer shall pay a charge of £50 (or such other amount notified by the Supplier in writing from time to time) upon the Supplier’s demand.

b. Where the Supplier has agreed to provide as part of the Services, Fibre to the cabinet (FTTC) connectivity Technology if the Customer terminates that Service and/ or the Contract at any time within 12 months from the Start Date, then without prejudice to the Supplier’s other rights and remedies, the Customer shall pay a charge of £75 (or such other amount notified by the Supplier in writing from time to time) upon the Supplier’s demand.

SCHEDULE 5 ADDITIONAL TERMS RELATING TO MOBILE SERVICES

1. AIRTIME AGREEMENT AND SIM

a. The Contract is in addition to and does not extinguish, replace or supersede the Airtime Agreement.

b. Following the Customer’s signature of the Airtime Agreement accompanying the Order, the Customer gives its authority for the Supplier to sign further Airtime Agreements for subsequent Orders as the Customer’s agent.

c. Where the Supplier enters into any Airtime Agreements as the Customer’s agent, the Customer agrees that it is at all times fully liable under such Airtime Agreement and shall indemnify the Supplier against all Losses that the Supplier may suffer or incur in connection with acting as the Customer’s agent.

d. The Supplier shall be entitled to terminate the supply of the Mobile Services at any time and without notice or liability towards the Customer if the Airtime Agreement is terminated or expires for any reason. The remainder of the Contract (where the Supplier is also providing the Connectivity and/ or the Unified Communications Cloud Telephone Services) shall continue unaffected. e. Title to the SIM remains with the MNO at all times.

2. MNO CHARGES

The Customer shall pay the MNO Charges and all VAT thereon directly to the MNO.

3. SUBSIDY AND TECHNOLOGY FUND

a. Where Equipment is provided free of charge or where the Customer uses any Subsidy available to purchase Equipment, title in the Equipment shall only pass to the Customer upon full satisfaction of the terms of the Contract and any Airtime Agreement.

b. In the event of early termination of this Contract for any reason, where the Equipment was provided free of charge or paid for using a Subsidy, the Supplier reserves the right to recover the value of the Equipment as detailed in the Order.

c. Subject to the Customer entering into the Airtime Agreement, the Supplier may agree to pay to the Customer the Technology Fund.

d. The Customer may draw down the Technology Fund in a number of separate tranches as set out in the Proposal (Tranches) on the draw down dates set out in the Proposal (Drawdown Date(s)).

e. At any time on or after the relevant Drawdown Date and during the term, the Customer may elect to: i. use the Technology Fund to place an order with the Supplier for hardware and the Supplier shall be entitled to deduct from the Technology Fund (without prior approval from the Customer), the cost of all hardware purchased by the Customer; or ii. request payment of each Tranche of the Technology Fund and shall submit to the Supplier a valid VAT invoice for the same.

f. The Customer agrees acknowledges and accepts that where it has exercised its right to request payment of any Tranche, the Supplier gives no warranties, representations or other assurances in respect of hardware purchased by the Customer from a third party supplier and shall have no liability for any Losses suffered or incurred by the Customer, including but not limited to, in respect of defective products, loss or interruption to the service and any loss of business or otherwise where the Customer has purchased hardware from a third party supplier, albeit using the proceeds of the Technology Fund.

g. Subject to paragraph h, the Supplier shall pay the amount of the Tranche within 60 days of receipt of the invoice in accordance with paragraph e.ii.

h. In addition to its rights in paragraph i, the Supplier shall not be required to pay any Tranche to the Customer in the event that: i. the Customer is (or the Supplier believes (acting reasonably) that the Customer is) in breach of any its obligations under the Contract and/ or the Airtime Agreement; or ii. the Airtime Agreement has terminated for whatever reason.

i. In the event that:

i. the Customer is in breach of the Airtime Agreement;

ii. the Airtime Agreement terminates for any reason within its term;

iii. 70% (or such other percentage as detailed in the Proposal) of the Customer’s mobile estate has transitioned away from the Supplier; or

iv. the Supplier is entitled to terminate the Contract for any reason, then the Supplier shall be entitled to demand in writing (“Clawback Demand”) repayment of a proportion of the Technology Fund, to be calculated in accordance with paragraph j (the “Clawback Amount”).

j. The Clawback Amount shall be:

i. in the case of breach or termination of the Airtime Agreement within six months of the later of the (i) commencement date of the Airtime Agreement and the (ii) Start Date of the Mobile Services, the full amount of the Technology Fund paid by the Supplier to the Customer; or

ii. thereafter an amount equal to the amount of the Technology Fund paid by the Supplier to the Customer divided by the number of months of the term of the Airtime Agreement and then multiplied by the number of months of the term of the Airtime Agreement remaining as at the date of termination or breach (including, for the avoidance of doubt, the month in which the termination or breach occurred).

k. The Customer shall pay the Clawback Amount within 30 days of the date of the Clawback Demand.

l. Following termination of Contract and/ or the Airtime Agreement, the Supplier shall not be under any obligation to pay, and the Customer shall not be entitled to receive, any balance of the Technology Fund not paid to the Customer as at the date of termination.