Effective Pre 1 May 2012
APPLICABLE TO THE PROVISION OF ALL EQUIPMENT AND SERVICES BY EVOLVING NETWORKS LIMITED
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Activation Fee: the Supplier’s current charge (plus VAT if any) to connect the Customer to the Equipment in order to begin the provision of Services.
Contract: the Customer’s acceptance of a Quotation and Order Form under condition 2.2.
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly with the Equipment supplying the Services.
Customer’s Manager: the Customer’s manager for Services, appointed in accordance with condition 5.1.
Deliverables: all products and materials developed by the Supplier in relation to Services in any form, including computer programs, data, reports, systems, networks and specifications.
Equipment: the goods to be supplied by the Supplier under any Contract as set out in any Quotation and Order Form.
In-put Material: all information and materials provided by the Customer relating to the Services including, computer programs, data, reports, addresses and PSTN numbers and specifications.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Maintenance: any error, corrections, uploads, updates and upgrades that the Supplier may provide or perform with respect to the Services as set out in the Quotation and Order Form.
Normal Business Hours: 6am to 6pm local UK time, Monday to Friday excluding public holidays.
Quarter days: 1st January, 1st April, 1st July and 1st October.
Quotation and Order Form: the quotation and order form under which the Services, Equipment and/or Deliverables are supplied.
Service Charge: the supplier’s current monthly fee payable (plus VAT if any) for the provision of Services to the Customer.
Services: the services to be provided by the Supplier under any Contract as set out in any Quotation and Order Form, together with any other services which the Supplier provides or agrees to provide to the Customer.
Supplier: Evolving Networks Limited
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Any Quotation and Order Form will form part of any Contract entered into pursuant to the Quotation and Order Form
1.3 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.4 References to conditions and schedules are to the conditions and schedules of the Contract and Quotation and Order Form.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s acceptance (by email, facsimile or otherwise), of a Quotation and Order Form for Services by the Supplier, constitutes an offer by the Customer to purchase the Services and the Equipment specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
(a) by a written acknowledgement issued and executed by the Supplier; or
(b) (if earlier) by the Supplier starting to provide the Services,
when a contract for the supply and purchase of those Services and lease of the Equipment on these Conditions will be established.
2.3 The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.4 The Quotation and Order Form is given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. The Quotation and Order Form is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
2.5 The Supplier reserves the right to revise these Conditions at any time. The Conditions that apply to a Contract are those Conditions on www.evolving-networks.co.uk at the date the Contract is entered into. A renewal or variation of a Contract will be subject to the Conditions applicable at the date of renewal or variation and will supersede all previous agreements between the Supplier and the Customer relating to the Services.
3. COMMENCEMENT AND DURATION
3.1 The Services and Equipment to be supplied under this agreement the Contract shall be provided by the Supplier to the Customer from the date of acceptance by the Supplier of the Customer’s offer in accordance with condition 2.2.
3.2 The Services supplied under the Contract where shown in the Quotation and Order Form or where intended to be ongoing shall continue to be supplied for a period of 60 months or such term as agreed between the Supplier and the Customer and recorded in the Quotation and Order Form unless the Contract is terminated in accordance with condition 13.1.
3.3 At the expiry of the terms as described in Condition 3.2, this Contract shall automatically renew for a period of 60 months or for a period equal to the term detailed in the Quotation and Order Form at the beginning of the Contract unless notice is given in accordance with Condition 13.2.
4. SUPPLIER’S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to provide the Services, and to deliver the Deliverables (if any) and Equipment to the Customer.
4.2 The Supplier shall use reasonable endeavours to meet any performance dates, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.3 The Supplier shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises and that have been communicated to it under condition 5.1(d), provided that it shall not be liable under if, as a result of such observation, it is in breach of any of its obligations under the Contract.
4.4 The Supplier shall use its reasonable endeavours to keep any service interruptions due to Maintenance to a minimum and where possible, will perform Maintenance outside of Normal Business Hours.
4.5 The Supplier shall use its reasonable endeavours to provide a telephone support service to assist the Customer with the installation of the Equipment.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services and appoint the Customer’s Manager in relation to the Services, who shall have the authority contractually to bind the Customer on matters relating to the Services;
(b) provide, for the Supplier, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as requested by the Supplier;
(c) provide, in a timely manner, such In-put Material and other information as the Supplier may request and ensure that it is accurate in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services.
(e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises;
(f) ensure that all Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements; and
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation and maintenance of the Supplier’s Equipment, the use of In-put Material and the use of the Customer’s Equipment in relation to the Equipment in all cases before the date on which the Services are to start;
(h) ensure that the environmental conditions in which the Equipment is located at the Customer’s premises comply with the manufacturer’s recommendations;
5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of a third party including but not limited to British Telecommunications Plc or the Customer and their respective agents, sub-contractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
6. EQUIPMENT CHANGES
6.1 The Supplier may, by giving written notice to the Customer at any time during the term of the Contract, change the Equipment so long as it does not adversely affect the Services or the Service Charge payable by the Customer.
6.2 If the change to the Equipment increases the Service Charge, the Supplier will inform the Customer in writing. If the Customer does not reject the new Service Charges and cancel the Contract within14 days of receipt of such notice in writing, the Customer shall be deemed to have accepted the change to the Service Charge.
6.3 In the event that the Customer does reject the Contract in accordance with Condition 6.2 above, ENL shall have the right to terminate the Contract by serving 3 months notice in writing on the Customer.
7. IP ADDRESS CHANGES
7.1 The Supplier may, by giving not less than 30 days prior written notice to the Customer at any time during the term of the Contract, change the Customer’s IP address due to a change in the core network routing so long as the change does not materially affect the Services.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Supplier in accordance with this Condition 78:
(a) the Activation Fee which is payable within 14 working days of the Supplier signing and issuing the written acknowledgment or if earlier the Supplier starting to provide the Services as per Condition 2.2;
(b) The Supplier will invoice the Customer by four equal instalments in advance on or before the Quarter Days in respect of the Service Charge; and
(c) the first instalment of the Service Charge shall be the proportion, calculated on a daily basis, in respect of the period from the commencement of the Contract in accordance with Condition 2 until the day before the next Quarter Day.
8.2 The Customer shall pay the Supplier’s current fee being not less than £500 per day for any employee or agent of the Supplier that is required to visit the Customer’s premises to assist with the Customer’s use of the Services.
8.3 The Service Charge payment, Activation Fee and call out fee as set out in Condition 8.2 above excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier; and
(b) VAT (if any), which the Supplier shall add to its invoices at the appropriate rate.
8.4 The Supplier will issue an electronic invoice to an email account designated by the Customer unless specifically requested by the Customer to issue a paper version. For the avoidance of doubt, the Supplier will retain a hard copy version of the invoice at the Supplier’s premises.
8.5 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within  days of receipt.
8.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full. For the avoidance of doubt, the Service Charge will continue to accrue during the period the Services are suspended and will be required to be paid up in full before the Services are reinstated by the Supplier.
8.7 Time for payment shall be of the essence of the Contract.
8.8 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 7 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. The Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract is terminated, this licence will automatically terminate.
10. CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY
10.1 The Customer and Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to them by the other, their employees, agents or sub-contractors and any other confidential information concerning their businesses, products or services which they may obtain. The Customer and Supplier shall restrict disclosure of such confidential material to such of their employees, agents or sub-contractors as need to know the same for the purpose of discharging their obligations to each other, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind them.
10.2 All materials, Equipment and tools, drawings, specifications, networks, systems and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier and any relevant third party, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation and in the event of damage or destruction of any of the Equipment whilst stored at the Customer’s premises then the Customer shall reimburse the Supplier an amount equal to the cost price of such damages or destroyed Equipment or make good such damage to the reasonable satisfaction of the Supplier.
10.3 At the end of the term howsoever occurring or upon any change in the Equipment the Customer will return the Equipment to the Supplier at its own cost and in good condition. In the event the Equipment is not returned in good condition or is damaged or destroyed, the Customer shall reimburse the Supplier an amount equal to the cost price of such damaged or destroyed Equipment or make good such damage to the reasonable satisfaction of the Supplier.
10.4 This condition 10 shall survive termination of the Contract, however arising.
11. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
11.1 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill and so far as reasonably possible in accordance with any specification provided by the Supplier to the Customer in writing and at the intervals and within the times agreed in writing. Where the Supplier supplies in connection with the provision of the Services any Deliverables or Equipment supplied by a third party, the supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise.
11.2 This condition 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Equipment, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.4 Nothing in these Conditions limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
(c) for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
11.5 Subject to condition 11.3 and condition 11.4
(a) the Supplier shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(x) or take any responsibility for the content, approval, issue or transmission of any material or content made available on the Internet or otherwise which can be accessed using the Services or Equipment.
(b) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.
12. EXCLUSION OF LIABILITY
12.1 To the extent permitted by law, the Supplier makes no representation or warranty of any kind, express or implied that the Services will be free from viruses or other harmful component or that the Equipment or Services will provide a particular level of Services or that the Services will be constantly available.
12.2 The Supplier will not be liable for loss or damage of any kind arising from or relating to any downtime as a result of the failure of the any third party, Maintenance of the Equipment or Services or any failure of the Customer’s Equipment.
13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other if:
(a) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, [or threatens] to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.2 Either party may terminate the Contract by serving not less than 90 days prior written notice before the end of the term as set out in Condition 3.2.
13.3 On termination of the Contract other than in accordance with condition 13.2 and condition 6.3 above the Customer shall immediately pay the Supplier (the Supplier having submitted an invoice) a sum equal to 70% of the outstanding Service Charge due for the remainder of the term as set out in Condition 3.2 of this Contract. The Customer acknowledges and agrees that the terms of this Condition does not operate by way of penalty and constitutes a genuine attempt to pre-estimate loss.
The Customer shall not assign, or grant any security interest over, any of its rights or obligations under this Contract, or any document referred to in it, without the prior written consent of the Supplier.
15. FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service, transport network or third party telecommunications operators, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
If any of these Conditions are determined by a competent authority to be invalid, unlawful, unenforceable to any extent, such term, condition or provision, will to that extent be severed from the remaining Conditions and will continue to be valid to the fullest extent permitted by law.
17.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
17.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
18. STATUS OF PRE-CONTRACTUAL STATEMENTS
Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number and email address, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax and email or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax and email, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 19 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax and email, to the fax number and email address of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
20. DISPUTES AND GOVERNING LAW
20.1 The parties shall attempt to settle a dispute between them as to the Contract by mediation in accordance with the Centre for Effective Dispute Resolution Model Mediation Procedure. A party may initiate mediation by giving a notice to the other requesting mediation in accordance with this clause.
20.2 If an attempt to settle a dispute in accordance with 20.1 fails, the dispute shall be referred to a single arbitrator, agreed upon the parties, or if agreement is not reached within 20 business days of a request to do so, nominated on the application of either party by the President of the Society for Computers and Law. The provisions of the Arbitration Act 1996 shall apply.
20.3 The Contracts and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.