- The following General Terms and Conditions are the terms and conditions upon which NUVOTEQ provides Services to a Customer who has purchased them using an Order Form.
- Each Service purchased also has a set of service specific terms which are set out in a Service Schedule.
- An Order Form, the General Terms and Conditions and any Service Schedules which are applicable to the Services ordered, together form a Services Agreement between NUVOTEQ and the Customer.
- There are a number of capitalised terms in these General Terms and Conditions. The meaning of those terms as well as rules governing the way in which a Services Agreement shall be interpreted are detailed in clause 33 (below).
- , Minimum Service Term,
Professional Service Term
- A Services Agreement shall commence on the Effective Date and shall expire on the expiry or other lawful termination of all Services ordered under that Services Agreement (save in circumstances where it is terminated earlier pursuant to these General Terms and Conditions).
- The term of each Service shall commence on the
Service Commencement Date and shall either:
- in the case of Services other than Professional Services, continue for the Minimum Service Term and thereafter, until terminated in accordance with the General Terms and Conditions; or
- in the case of Professional Services, shall terminate upon expiry of the Professional Service Term,
save in circumstances where the Service is either terminated prior to the expiry of the Minimum Service Term and/or Professional Service Term, pursuant to these General Terms and Conditions.
Service Levels and Service Credits
- In consideration for and subject to the payment
by the Customer of the applicable Charges, NUVOTEQ shall provide the Services
selected in an Order Form to the Customer at the Site, and shall use reasonable
endeavours to ensure that they are provided in accordance with:
- these General Terms and Conditions; and
- the relevant Service Schedule (including the Service Description and Service Levels); and
- in the case of Professional Services, the Acceptance Criteria (if any),
- In consideration for and subject to the payment by the Customer of the applicable Charges, NUVOTEQ shall provide the Services selected in an Order Form to the Customer at the Site, and shall use reasonable endeavours to ensure that they are provided in accordance with:
in each case subject to the Customer complying with the Customer Obligations applicable to its receipt of the relevant Services.
- Subject to clause 3.3,
the Customer’s sole and exclusive remedy for failure to provide the Services in
accordance with the relevant Service Levels and Service Description shall be
the payment of Service Credits by NUVOTEQ in accordance with the provisions of
the Service Schedule.
- 3.3 Where a Warranty Period is provided for any Bespoke Software and/or other Deliverables under a Professional Services Schedule, the Customer’s sole and exclusive remedy for failure by NUVOTEQ to provide the Professional Services in accordance with the relevant Professional Service Schedule shall be during the Warranty Period and at NUVOTEQ option either the:
- Whilst NUVOTEQ does not guarantee fault free
Services (it being technically impracticable to do so), insofar as it is
reasonably possible, NUVOTEQ will use reasonable efforts to restore a Service
to the contracted level of service as quickly as possible in the event of any
- Any timescales in a Services Agreement (including in a Professional Service Plan) in relation to NUVOTEQ provision of the Services are indicative only. NUVOTEQ will use reasonable efforts to meet such timescales and will notify the Customer (where it is reasonably practical to do so) where it is unable to comply with such timescales.
- Where the Customer requires services (and NUVOTEQ agrees to provide such services) which are additional to the Services (including for the avoidance of doubt, Professional Services) typically offered by NUVOTEQ, the terms upon which such additional services shall be supplied will be detailed in a separate Order Form and Services Schedule and the parties will agree any necessary amendments to these General Terms and Conditions to take account of such additional services. Such additional services shall be considered to be Services and shall form part of a Services Agreement from the date of the relevant Order Form for those additional services.
- 4.3, no amendment shall be made to it except in accordance with a Services Agreement.
- The Customer shall at all times comply with any Customer Obligations which are applicable to Services which it has purchased under a Services Agreement.
- The Customer shall be entitled to use a Service
for its own internal business purposes in accordance with the terms of a
Services Agreement. The Customer shall:
- comply with the provisions of a Services Agreement;
- not and ensures its Users do not use or permit the use of the Services in such a way as to cause interruption, interference, impairment or degradation of any communications network that is used to provide the Services;
- comply with and ensures that its Users comply with the Law in the receipt of and use of the Services including ensuring that they are not used for any unauthorised access or denial of service attacks which is or would be an offence under Section 1, 2, or 3 of the Computer Misuse Act 1990;
- obtain and maintain all necessary licences and consents in relation to the use of the Customer In-put Material and Customer Equipment necessary for the provision and receipt of the Services;
- comply with and ensures that its Users comply with the Service Schedules and any Acceptable Use Policies applicable to the Services received;
- comply with and ensure that its Users comply with any reasonable instructions given to it by NUVOTEQ from time to in connection with the Services;
- not make or permit any modifications to the Service without NUVOTEQ prior written consent (save as may be permitted by the relevant Service Schedule);
- be responsible for any access and use of the Service by Users, all charges incurred and compliance with all terms and conditions by it and Users under a Services Agreement;
- ensure that it maintains a database of its Users and terminates access immediately for anyone who is no longer a User; and
- provide, in a timely manner, such Customer In-put Material as is specified in a Service Schedule and such other Customer In-put Material as NUVOTEQ may reasonably request, and ensure that it is accurate in all material respects.
- to create, send, knowingly receive, upload, download, or use any material or data which is capable of being resolved into material which is defamatory, offensive, abusive, indecent, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
- to cause annoyance, inconvenience or anxiety;
- to “spam” or to send or provide unsolicited advertising or promotional material or, knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party;
- to forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted via the Site;
- to upload, post or otherwise transmit any Content that you do not have a right to transmit under Law or under contractual or fiduciary relationships;
- to upload, post or otherwise transmit any Content that infringes any Intellectual Property Rights of any party;
- to harm minors in any way;
- to impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- to forge headers or spoof or monitor/sniff IP packets;
- to upload, post or otherwise transmit any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- to promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual;
- in any way which, in NUVOTEQ reasonable opinion, is or is likely to be detrimental to the provision of Services (or bring NUVOTEQ network into disrepute) to the Customer or any of NUVOTEQ other customers, or to NUVOTEQ business and/or reputation;
- to run public internet relay chat services; and
- in a way that does not comply with any instructions (including NUVOTEQ network standards) provided to the Customer.
- The Charges for a Service are set out in an Order Form and the applicable Service Schedule and are exclusive of VAT.
- Unless otherwise stated to the contrary in an Order Form and/or a Service Schedule, one-off Charges may be invoiced on the Effective Date and all recurring Charges shall be invoiced monthly in advance.
- The Charges shall be paid by such method as is specified in the Order Form and, where the method not specified in an Order Form, by direct debit payment.
- NUVOTEQ shall be entitled to vary the Charges in relation to a particular Service at any time:
- Where reasonably practicable, NUVOTEQ will give to the Customer not less than thirty (30) days notice of any such variation in Charges.
- Unless otherwise stated to the contrary in the Order Form or a Service Schedule, the Customer shall pay the Charges for the Services within thirty (30) days from receipt of an invoice from NUVOTEQ without any set-off, counterclaim or deduction.
- Notwithstanding anything else stated in the Services Agreement, in the event that NUVOTEQ and the Customer agree that the Service will be made available for the Customer’s use in part prior to making the full scope of the Service available, then NUVOTEQ shall invoice and the Customer shall pay a pro rata proportion of the Charges which will be calculated in relation to the percentage of the Service that is made available.
- If NUVOTEQ has been unable to commence or complete installation by any Delivery Date, the sole reason being the inability of NUVOTEQ to obtain required information from the Customer, or a Customer act or omission which prevented NUVOTEQ from commencing or completing the installation by the Delivery Date, NUVOTEQ shall be entitled at the Delivery Date to invoice the Customer for the full Charges for installation/set-up and the Customer shall be obliged to pay the same, as if installation had been completed.
- NUVOTEQ may set-off any amounts it owes to the Customer against any amounts owed by the Customer to NUVOTEQ under a Services Agreement.
- In respect of any late payment by the Customer NUVOTEQ
shall be entitled:
- to charge interest accruing at a daily rate from the due date until the date payment is made in full at a rate of 4% per annum over the Bank of England Base Rate; and
- Following receipt of any outstanding payment (plus interest) in full together with a reconnection charge, NUVOTEQ shall use reasonable efforts to recommence the provision of any Service suspended pursuant to clause 6.10.2.
- and Data
- The Customer will, upon reasonable notice from NUVOTEQ, allow NUVOTEQ (including NUVOTEQ Personnel), its agents and subcontractors access to the Sites as well as to the data relating to the operation of a Service as may be reasonably necessary for the performance by NUVOTEQ of its obligations under a Services Agreement, including the installation and/or maintenance of any NUVOTEQ Equipment or recovery or removal of any NUVOTEQ Equipment.
- When on the Site or other premises of the Customer, NUVOTEQ shall use reasonable endeavours to ensure its employees, agents and subcontractors observe the Customer’s reasonable site regulations previously advised in writing to NUVOTEQ.
- NUVOTEQ Equipment
- The purchase of equipment from NUVOTEQ is expressly excluded from a Services Agreement. Any purchases of equipment from NUVOTEQ are subject to a separate Order Form and terms and conditions.
- Where NUVOTEQ requires access to the Site to
enable NUVOTEQ to provide a Service (including to install NUVOTEQ Equipment),
the Customer will prior to installation (at its own expense):
- carry out all necessary preparatory work required by NUVOTEQ in sufficient time in order for NUVOTEQ to fulfil its obligations under a Services Agreement;
- obtain all necessary consents, including consents for any necessary alterations to buildings from the landlord;
- provide a suitable and safe working environment, including all necessary trunking, conduits and cable trays, in accordance with the relevant installation standards;
- provide any electricity and telecommunication connection points required by NUVOTEQ;
- provide any openings in buildings required to connect NUVOTEQ Equipment to appropriate telecommunications facilities; and
- provide internal cabling between NUVOTEQ Equipment to any Customer Equipment.
- NUVOTEQ (or its Affiliates or third party suppliers) shall at all times retain title to and interest in NUVOTEQ Equipment. The Customer shall at all times retain title and interest in the Customer Equipment.
- Risk in the NUVOTEQ Equipment installed at the Site, shall pass to the Customer upon delivery to the Site.
- The Customer shall not move, add to, modify or in any way interfere with NUVOTEQ Equipment, nor allow anyone else (other than someone authorised by NUVOTEQ) to do so.
- The Customer shall be liable to NUVOTEQ for any loss of or damage to NUVOTEQ Equipment, except where the loss or damage is due to fair wear and tear or is caused by NUVOTEQ or anyone acting on its behalf.
- NUVOTEQ provides no guarantees that any NUVOTEQ Equipment shall be error-free or fault-free.
- The Customer is responsible for the provision, installation, configuration, monitoring and maintenance of any Customer Equipment connected to the Service (save to the extent that NUVOTEQ is under an express obligation to provide Services akin to these services under a Service Schedule).
- The Customer shall ensure that any Customer
- connected to or used with the Service is connected and used in accordance with any instructions, safety and security procedures applicable to the use of that Customer Equipment;
- does not cause harm to or otherwise interfere with NUVOTEQ Equipment or NUVOTEQ network; and
- attached (directly or indirectly) to the Service by the Customer is technically compatible with the Service and approved for that purpose under any Law, and is approved by NUVOTEQ.
- 9, it shall upon notice from NUVOTEQ, disconnect such Customer Equipment or direct NUVOTEQ to do the same, NUVOTEQ doing so subject to payment by the Customer of NUVOTEQ charges incurred in carrying out such disconnection.
- Each party warrants that it has the necessary rights, licences and permissions to enter into and perform its obligations under the terms of a Services Agreement.
- Except as expressly set forth in a Services Agreement, NUVOTEQ hereby disclaims all warranties implied, statutory or otherwise with respect to the Services and NUVOTEQ Equipment provided under a Services Agreement and all components and elements thereof, including but not limited to implied warranties of merchantability and fitness for particular purpose.
- Intellectual Property and Licence Grant
- the Customer shall not acquire any right, title or interest in or to the Intellectual Property Rights of NUVOTEQ, its Affiliates or its licensors, including:
- the NUVOTEQ Software;
- the Third Party Software;
- the Bespoke Software;
- in any other materials either pre-existing or created by NUVOTEQ, its Affiliates or its licensors during or arising from the performance of a Services Agreement.
either party acquires, by operation of law, title to Intellectual Property
Rights that is inconsistent with the allocation of title set out in clauses 11.1 or 11.2, it shall assign in writing such Intellectual Property Rights as it has
acquired to the other party on the request of the other party (whenever made). If requested to do so by the other party, the
party acquiring title to Intellectual Property Rights that are inconsistent
with the allocation of title set out in clauses 11.1 or 11.2 shall without charge to the other party
execute all documents and do all further acts as the other party may require to
perfect the assignment under this clause 11.3.
- 11.5 Where Software is provided as part of a Service, NUVOTEQ grants the Customer (or provided that it is able to, will procure the grant from a third party) a non-exclusive, non-transferable right and licence to use all such Software and applicable documentation which is provided to the Customer pursuant to a Services Agreement solely for the Customer’s internal use and solely as necessary for receipt of the Services (and where applicable Deliverables) and in accordance with a Services Agreement and the applicable documentation. The licence in this clause 11.5 is to the object code version of the Software only unless otherwise agreed in a Professional Service Schedule. Notwithstanding the licence grants set forth in this clause 11.5, any Third Party Software which is licensed to the Customer pursuant to a Services Agreement will be subject to the licence terms applicable to such Third Party Software and set forth or referred to in the relevant Service Schedule.
- 11.5 shall be without prejudice to any Open Source software licence terms, which terms shall apply independent of such licence grant.
- Save to
the extent specified to the contrary in an Order Form and/or a Professional
- the term of any licence granted by NUVOTEQ pursuant to clause 11.3 shall be perpetual;
- the term of any licence granted by NUVOTEQ pursuant to clause 11.5 (save in the case of Bespoke Software) shall be coterminous with the term for the Service with which the Software is associated;
- the term of any licence granted by NUVOTEQ (insofar as it applies to Bespoke Software) pursuant to clause 11.5 shall be perpetual; and
- the term of any licence granted by the Customer pursuant to clause 11.6 shall be conterminous with the term for the Service in respect of which the Customer In-put Material is provided.
- Without prejudice to any Open Source software licence terms, which terms shall apply independent of this licence grant, except as permitted by applicable law or as expressly permitted in a Services Agreement, the Customer undertakes not to copy, decompile or modify any Software or knowingly allow or permit anyone else to do so.
- 11.10 Subject to clauses 11.11 and clause 11.12, NUVOTEQ will indemnify the Customer against all claims and proceedings arising from infringement of any third party’s copyright and/or patent (in both cases limited to rights which are registered or subsisting in the United Kingdom) by NUVOTEQ provision of a Service, Deliverable or Software (excluding Third Party Software).
shall not apply to claims or proceedings arising from:-
- use of the Service, a Deliverable or any Software in conjunction or combination with other equipment or software or any other service not supplied by NUVOTEQ;
- any Software which is Third Party Software or derives from Open Source;
- any unauthorised alteration or modification of the Service, a Deliverable or any Software;
- Customer In-put Material;
- Customer Content, designs or specifications supplied by or on behalf of the Customer; or
- use of a Service, Deliverable or any Software other than in accordance with a Services Agreement.
- 11.10 is subject to the Customer:
- If a
Service, Deliverable or Software, becomes, or NUVOTEQ believes it is likely to
become, the subject of a claim of infringement of any intellectual property rights
as referred to in clause 11.10, NUVOTEQ, at its option and expense, may
(a) secure for the Customer a right of continued use or (b) modify or replace
the Service, Deliverable or Software so that it is no longer infringing
provided that modification or replacement must not materially affect the
performance of the Service, Deliverable or Software.
- The indemnity in clause 11.10 sets out the Customer’s exclusive remedy for claims of infringement of Intellectual Property Rights.
- To the extent that NUVOTEQ is permitted to do so under its contracts with third parties, it will pass on the benefits of any warranties or indemnities to the Customer which it receives from third parties in relation to intellectual property claims arising out of Third Party Software.
Customer shall indemnify, keep indemnified and hold harmless NUVOTEQ and its
Affiliates against any losses, damages, fines, costs, expenses (including legal
expenses) which arise as a result of:
- the Customer’s breach of a Services Agreement or any part thereof;
- any claim by a User made against NUVOTEQ in relation to the provision of the Services;
- any third party claim against NUVOTEQ or its Affiliates that the use of Customer In-put Material and/or Customer Content infringes their Intellectual Property Rights; and
- the Customer’s breach of Law.
- The Customer shall indemnify, keep indemnified and hold harmless NUVOTEQ and its Affiliates against any losses, damages, fines, costs, expenses (including legal expenses) which arise as a result of:
- Limitation of Liability
- Subject to clause 13.2,
in no circumstances whatsoever shall NUVOTEQ be liable to the Customer (whether
in contract, for breach of duty, for negligence or otherwise) for:
- loss of revenue;
- loss of actual or anticipated profits (including loss of profits on contracts);
- loss of anticipated savings;
- loss of business;
- loss of opportunity;
- loss of goodwill;
- loss of reputation;
- loss or corruption of, or damage to, data, systems or programs; or
- any indirect or consequential loss or damage howsoever caused.
- for death or personal injury caused by negligence;
- for any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982;
- for any other liability which cannot be excluded or limited by applicable law.
- 13.2 and clause 13.4, NUVOTEQ liability to the Customer for failure to provide the Services in accordance with the relevant Service Schedule shall be limited to the amounts payable to the Customer by way of Service Credits as set out in the applicable Service Schedule.
- 13.4 Subject to clause 13.2, where Service Credits are not specified as a remedy for failure to provide a Service under a Service Schedule, NUVOTEQ total liability to the Customer in relation to the relevant Service (including pursuant to any related provision under these General Terms and Conditions) shall be limited to the Charges paid by the Customer to NUVOTEQ for the relevant Services.
- Subject to clause 13.2, NUVOTEQ aggregate liability to the Customer of any sort (including for breach of contract and negligence) in connection with a Services Agreement shall not exceed the total Charges paid by the Customer to NUVOTEQ pursuant to a Services Agreement.
- Subject to clause 13.2, in no circumstances whatsoever shall NUVOTEQ be liable to the Customer (whether in contract, for breach of duty, for negligence or otherwise) for:
- 14 or where disclosure is expressly permitted
elsewhere in these General Terms and Conditions, each party shall::
- treat the other party’s Confidential Information as confidential and safeguard it accordingly; and
- not disclose the other party’s Confidential Information to any other person without the owner’s prior written consent.
- Clause 14.1shall not apply to the extent that:
- such disclosure is a requirement of Law placed upon the party making the disclosure;
- such information was in the possession of the party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner;
- such information was obtained from a third party without obligation of confidentiality;
- such information was already in the public domain at the time of disclosure otherwise than by a breach of a Services Agreement;
- it is independently developed without access to the other party’s Confidential Information;
- disclosure to the operator or administrator of the Network or such other telecommunications system that is used to provide the Services is necessary; or
- disclosure is made to a party’s legal counsel or its independent auditors.
- 14 or where disclosure is expressly permitted elsewhere in these General Terms and Conditions, each party shall::
- 15. Security and Data Protection
- The terms “data controller”, “data processor,
“data subject” and “personal” data in this clause 15
shall have the meaning given to them in the Act.
- For the purposes of a Services Agreement, the Customer shall be the data controller and NUVOTEQ shall be the data processor.
- Without prejudice to the generality of clause 15.6, the Customer shall ensure that it has obtained all necessary consents from data subjects and made all required notifications to the Information Commissioner’s Office which are required to enable NUVOTEQ to carry out its processing activities under a Services Agreement.
- The parties will comply with any supplementary conditions to a Services Agreement that may be required by Law. Such supplementary conditions shall be incorporated into a Services Agreement, as appropriate.
- The delay or failure by NUVOTEQ to perform any of its obligations under a Services Agreement which is caused by or materially contributed to by a restriction of a legal or regulatory nature which affects, wholly or partly, the provision of the Service(s), shall not constitute a breach of a Services Agreement.
- (save that nothing in this clause 17 shall relieve the Customer from its obligation to pay the Charges, the obligation remaining in force throughout a Force Majeure Event).
- If a Force Majeure Event occurs, the party
- use reasonable efforts to give the other party written notice of the occurrence, anticipated duration and impact of the Force Majeure Event;
- use reasonable endeavours to mitigate the effects of the Force Majeure Event, to continue to perform the affected obligations notwithstanding the occurrence of the Force Majeure Event and to ensure that the Force Majeure Event comes to an end; and
- continue to perform all of its obligations under a Services Agreement the performance of which are not affected by the Force Majeure Event.
- A party shall not be in breach of a Services Agreement or otherwise liable to the other party for any failure to perform or delay in performing its obligations under a Services Agreement to the extent that this is due to a Force Majeure Event affecting the other party.
- If a Force Majeure Event which gives rise to relief from liability under clause 17.1 continues for a period of more sixty (60) days, either party shall be entitled to terminate a Services Agreement and/or any affected part thereof by giving not less than ten (10) Business Days written notice to the other party.
- 18.1 If a Dispute arises out of or in connection with a Services Agreement (including in relation to any non-contractual obligations) either party may during the term of a Services Agreement by written notice to the other party’s representative, refer the matter for resolution.
- 18.2, all Disputes arising out of or in connection with a Services Agreement may be settled by reference to the Courts of England and Wales.
- 18 will prevent or delay either
- seeking orders for specific performance, interim or final injunctive relief;
- exercising any rights it has to terminate a Services Agreement or any part thereof; or
- commencing any proceedings where this is necessary to avoid any loss of a claim due to the rules on limitation of actions.
Change Management Process
- , a copy of which will be provided to the Customer on request.
- 20, give the Customer as much notice as is reasonably possible of the change and/or suspension occurring.
- /safeguard the integrity, operation and functionality of NUVOTEQ (and neighbouring) networks or the networks of any third parties used to provide the Service; or (ii) to comply with police, judicial, regulatory or governmental orders, notices, directives or requests. The Customer hereby consents to such examination.
- transmitted on any communications network through its use of the Service.
- 21.1 Unless otherwise stated to the contrary in an Order Form and/or a Service Schedule, either party may terminate any individual Service for convenience at any time by giving at least sixty (60) days’ (or such other notice period as specified in the Service Schedule) written notice to the other, such notice not to take effect prior to the expiry of the applicable Minimum Service Term. Any contrary provisions with regard to length of notice required to terminate an individual Service (and when such notice must expire) contained in an Order Form and/or a Service Schedule shall prevail over the provisions of this clause 21.1.
- NUVOTEQ is not obliged to suspend a Service or give a notice of suspension before exercising its right to terminate a Services Agreement and/or a particular Service Schedule.
- Termination of any individual Service will not affect the parties’ rights and obligations with regard to any other Service.
- the other party is in material breach of a Services Agreement, such breach being irremediable;
- the other party is in material breach of a Services Agreement and where such breach is capable of being remedied, that breach has not been remedied within thirty (30) days’ notice from the party not in breach;
- if the other party is the subject of an Insolvency Event.
- NUVOTEQ may immediately by
written notice to the Customer terminate a Service (either in whole or in part)
- any governmental or regulatory authority with competence and/or jurisdiction over the parties decides that the provision of the relevant Service under a Services Agreement is contrary to Law or where a regulatory authority directs NUVOTEQ that the relevant Service should be terminated; or
- any of the authorisations or regulatory formalities required to provide and/or receive that Service is not obtained, withdrawn or is no longer valid, for whatever reason.
- 6, 12, 14 and this clause 22.
- If a Services Agreement or a Service is terminated by NUVOTEQ under clause 21.4 the Customer shall, in respect of any terminated Service pay the Customer (within 14 days of the date of termination) any remaining Charges which would have been due to NUVOTEQ under a Services Agreement until the end of any applicable Minimum Service Term or Professional Service Term (notwithstanding that such Services have not been provided due to the termination).
- If a Services Agreement or a Service is properly terminated by the Customer under clause 21.4, NUVOTEQ agrees to credit or repay the Customer within a reasonable period the appropriate proportion of any Charges paid in advance for the period after the cessation of the Customer’s liability to pay Charges.
- Following notice of termination of a Service pursuant
to clause 22.1:
- NUVOTEQ shall, subject to the payment of any applicable Charges, continue to provide the Services until the date of termination;
- the Customer shall cease using any IP addresses or address blocks provided to it as part of the relevant Service.
- 21.5, the Customer shall immediately cease to use the relevant Software and shall delete such Software from its systems and promptly return to NUVOTEQ all partial or complete copies of such Software in its possession or destroy the same (and provide satisfactory evidence to NUVOTEQ of such destruction).
- 7 provide such access to NUVOTEQ as is necessary for NUVOTEQ to recover NUVOTEQ Equipment.
- All notices given under a Services Agreement shall be in writing, in the English language, unless the parties agree otherwise or local law and regulations provide for differently, and shall be sent by prepaid post or by facsimile, delivered to NUVOTEQ or the Customer’s principal place of business and addressee shown on an Order Form or to any other address or addressee either party has given to the other for that purpose.
- Notices given under a Services Agreement are
deemed to be given by the sender and received by the addressee:
- if sent by prepaid post, three (3) Business Days from and including the date of postage; or
- if sent by facsimile, when transmitted to the addressee; but if transmission is on a day which is not a Business Day or after 4p.m, it is deemed to be duly given and received on the next Business Day.
- Assignment and Subcontracting
- NUVOTEQ may assign (whether absolutely or by way of security and whether in whole or in part), transfer, mortgage, charge, declare itself a trustee for a third party of, or otherwise dispose of (in any manner whatsoever) the benefit of a Services Agreement or any part thereof to an Affiliate without the consent of the Customer.
- NUVOTEQ may subcontract or otherwise delegate the performance of any of its obligations (including the provision an individual Service, or the Services collectively) under a Services Agreement without the consent of the Customer.
- The Customer may not assign (whether absolutely or by way of security and whether in whole or in part), transfer, mortgage, charge, declare itself a trustee for a third party of, or otherwise dispose of (in any manner whatsoever) the benefit of a Services Agreement or any part thereof without the prior written agreement of NUVOTEQ.
- The Customer may not subcontract or otherwise delegate the performance of any of its obligations under a Services Agreement without the prior written agreement of NUVOTEQ.
- Governing Law and Jurisdiction
A Services Agreement and any claims or disputes arising out of contractual and/or non-contractual obligations, relating to or in connection with it shall be governed by and construed in accordance with the laws of England. Subject to clause 18, the parties submit to the exclusive jurisdiction of the English Courts in relation to contractual and non-contractual obligations.
- Variation of a Services Agreement
- Subject to clause 19, clause 20, clause 26.2 and clause 26.3, no variation of a Services Agreement (or any document referred to in it) shall be effective unless it is in writing signed by or on behalf of each of the parties to a Services Agreement. The expression “variation” includes any variation, supplement, deletion or replacement, however effected.
- Entire Agreement
- Subject to clause 13.2.3, a Services Agreement represents the entire agreement and understanding between the parties with regard to the supply of the Services and the provision of any NUVOTEQ Equipment, to the exclusion of all prior agreements, arrangements and understandings. Any other term which might be implied or incorporated into a Services Agreement, by statute, at common law or otherwise, is excluded, to the fullest extent permitted by Law.
- Subject to clause 13.2.3, the Customer acknowledges and agrees that in entering into a Services Agreement it has not relied upon any oral or written representation, statement or understanding (whether negligently or innocently made) by any NUVOTEQ employees, agents, sub-contractors or representatives other than as expressly set out in a Services Agreement.
The rights and remedies of the parties shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by any other party or by anything whatsoever except a specific waiver or release in writing and any such waiver or release shall not prejudice or affect any other rights or remedies of the parties. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
- Severance and Unenforceable Provisions
Subject to clause 16, if any provision or part of a Services Agreement is illegal, unlawful, void or unenforceable due to any Law, it shall be deemed to be deleted and the remaining provisions of a Services Agreement shall continue in full force and effect.
- The parties may vary or rescind a Services Agreement without the consent of any Affiliate.
- Subject to clause 30.1, a person who is not a party to a Services Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of a Services Agreement.
- 31.1 The Customer shall not, without the prior written consent of NUVOTEQ, at any time from the date of a Services Agreement to the expiry of 12 months after the date of termination of a Services Agreement, solicit or entice away from NUVOTEQ or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of NUVOTEQ in the provision of the Services. For the purposes of this clause 31.1, “solicit or entice away” means to approach an individual (whether directly or through a third party) with a view to employing, engaging, or procuring the employment or engagement of that individual as an employee, director, officer, independent contractor or consultant other than by way of bona fide general advertising.
- Any consent given by NUVOTEQ in accordance with clause 31.1 shall be subject to the Customer paying to NUVOTEQ a sum equivalent to 20% of then current annual remuneration of NUVOTEQ employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
- Provisions Applicable to Ofcom Regulated
- The Customer shall be entitled to use an Ofcom
Regulated Service for its own internal business purposes, provided that the
Customer complies with and ensures that its Users comply with the Law in the
receipt of and use of the Ofcom Regulated Service, including ensuring that they
are not used:
- for the improper use of a public electronic communications network which is or would be an offence under Section 127 of the Communications Act 2003; or
- to commit an offence under the Regulation of Investigatory Powers Act 2000.
- Where pursuant to clause 6.4.1
NUVOTEQ exercises its right to vary the Charges relating to an Ofcom Regulated
Service, then the Customer agrees that:
- any variation of the Charges that complies with clause 6.4.2 or clause 6.4.3; or
- which amounts to an increase of less than 5% to the then current Charges,
- The Customer shall be entitled to use an Ofcom Regulated Service for its own internal business purposes, provided that the Customer complies with and ensures that its Users comply with the Law in the receipt of and use of the Ofcom Regulated Service, including ensuring that they are not used:
shall not cause any material detriment to the Customer.
- The Customer shall ensure that any Customer
Equipment connected to or used with an Ofcom Regulated Service is connected and
used in accordance with any OFCOM directions and decisions.
- In respect of Ofcom Regulated Services, the
obligations in clause 14.1shall not apply to the extent that such disclosure is required by Ofcom.
- nothing in clause 18 will prevent or delay either party from referring that Dispute to Ofcom.
- suspend an Ofcom Regulated Service, either in whole or in part, where it is required to do so by Ofcom.
- change an Ofcom Regulated Service where directed to do so by OFCOM.
- NUVOTEQ will in each case described in clause 32.6, adhere to any minimum notice periods stipulated by Ofcom.
- NUVOTEQ may immediately, by written notice to the Customer, terminate an Ofcom Regulated Service either in whole or in part if Ofcom decides that the provision of the relevant Ofcom Regulated Service under a Services Agreement is contrary to Law or where Ofcom directs NUVOTEQ that the relevant Ofcom Regulated Service should be terminated.
- NUVOTEQ may vary a Services Agreement (or any document referred to or incorporated in it) without the Customer’s consent if it is required to do so by Ofcom and any notice period shall be as directed by OFCOM, or, if no notice period is directed such period shall be no less than 30 days.
- In respect of Ofcom Regulated Services, the obligations in clause 14.1shall not apply to the extent that such disclosure is required by Ofcom.
- In a Services Agreement the following definitions (together with any contained in a Service Schedule) apply:
“Acceptable Use Policy” a policy which is referred to in a Service Schedule and which contains restrictions on the ways in which an applicable Service may be used by the Customer and its Users;
“Acceptance Criteria” the criteria which the parties agree that the relevant Services, Bespoke Software and/or Deliverables must meet under a Professional Service Schedule;
“Acceptance Tests” the tests which the parties agree to carry our to test Services, Bespoke Software and/or Deliverables against the Acceptance Criteria, as specified in a Professional Service Schedule;
“Act” the Data Protection Act 1998 (as amended);
“Affiliate” in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that body corporate from time to time;
“Bespoke Software” Software, other than NUVOTEQ Software, developed by NUVOTEQ for the Customer under a Professional Service Schedule;
“Business Day” a day not being a Saturday, Sunday, bank or public holiday on which trading banks are generally open for business in the City of London;
“Change Management Process” NUVOTEQ documented change management process as may be updated by NUVOTEQ and its Affiliates from time to time;
“Charges” the fees payable for Services as detailed in an Order Form and the relevant Service Schedule;
“Confidential Information” a Services Agreement and all materials, data and other documents which are disclosed by one party to the other in fulfilling the provisions and intent of a Services Agreement;
“Control” where a person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person (whether through the ownership of voting shares, by contract or otherwise) and “Controls” and “Controlled” shall be interpreted accordingly;
“Customer” the entity named as such in an Order Form;
“Customer Content” any information or content which is created, transmitted or displayed in connection with a Service by the Customer or a User;
“Customer In-put Material”all documents, information and materials provided by the Customer relating to the Services, including computer programs, data, reports and specifications and any other in-put materials specified in a Services Schedule;
“Customer Equipment” (i) equipment which the Customer elects to provide themselves, as an alternative to the Services being provided exclusively using NUVOTEQ Equipment (ii) any other Customer owned or leased equipment which is necessary for the Customer to receive the Services;
“Customer Obligations” any obligations contained in the General Terms and Conditions which are applicable to the Customer’s receipt of a Service together with any Customer obligations detailed in the relevant Service Schedule;
“Deliverables” any deliverables (other than Software) which NUVOTEQ agrees to supply to a Customer under a Professional Service Schedule;
“Delivery Date” the date by which NUVOTEQ shall use its reasonable endeavours to commence provision of a Service as detailed on the Order Form or agreed in writing between NUVOTEQ and the Customer;
“Dispute” any dispute, difference or question of interpretation arising out of a Services Agreement, including any dispute, difference or question of interpretation relating to the Services or any matter where a Services Agreement directs the parties to resolve an issue by reference to the dispute resolution procedure in clause 18;
“Effective Date” the date upon which an Order Form incorporating these General Terms and Conditions has been signed by both parties;
“Force Majeure Event” an act of God; or war, insurrection, riot, civil commotion, act or threat of terrorism; or lightning, earthquake, fire, flood, storm, or extreme weather condition; or theft, malicious damage; or strike, lockout, industrial dispute (whether affecting the workforce of a party and/or any other person); or breakdown or failure of plant or machinery; or inability to obtain essential supplies or materials; or change in Law; or any failure or default of a supplier or sub-contractor of the relevant party; or any other event or circumstance to the extent it is beyond the reasonable control of the relevant party;
“General Terms and Conditions” clauses 1 to 33 (inclusive) of these terms and conditions;
“NUVOTEQ” the supplier of the Services identified in an Order Form being either(i) NUVOTEQ cloud Limited whose registered office is at NUVOTEQ Ltd, 6 Elmwood Chineham Basingstoke RG24 8WG, a company registered in England and Wales; or (ii) one of its Affiliates;
“NUVOTEQ Equipment” equipment (including any Software on it) which is used by NUVOTEQ to provide the Services (whether remotely or on the Site) the ownership of which vests with NUVOTEQ, its Affiliates or its third party suppliers;
“NUVOTEQ Personnel” NUVOTEQ employees and/or NUVOTEQ appointed sub-contractors;
“NUVOTEQ Software” Software which is proprietary to NUVOTEQ and which is licensed by NUVOTEQ to the Customer under a Services Agreement and is (i) detailed in an Order Form; and/or (ii) on NUVOTEQ Equipment;
“Insolvency Event” (a) an order is made by a court of competent jurisdiction or a resolution is passed for the administration of a party (other than for the purpose of a bona fide amalgamation, merger or reconstruction); or (b) the presentation of a petition for winding up of a party, which petition is not dismissed within twenty (28) days; or (c) the appointment of a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party’s assets or business;
“Intellectual Property Rights” (a) patents and applications for patents, trade marks, service marks and domain names and applications for the same, unregistered trade marks and rights in trade names and business names, copyright and moral rights (including copyright in computer software), Know How, database rights, rights in designs and rights in inventions; and rights of the same or similar effect or nature as any of those in paragraph (a) of this definition
“Law” any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any regulatory body, delegated or subordinate legislation or notice of any regulatory body;
“Minimum Service Term” the minimum period for a Service, as defined in an Order Form commencing on the Service Commencement Date;
“Month” a calendar month and “monthly” shall be interpreted accordingly;
“Ofcom Regulated Service” a Service, the provision of which is regulated by Ofcom, as set out in the General Conditions of Entitlement;
“Open Source Software” any software code that is made available to the public generally in source code form without any confidentiality restrictions, including any code that is derived in any manner (in whole or in part) from such code;
“Order Form” an Order Form which incorporates these General Terms and Conditions, which is signed by authorised representatives of both parties and under which the Customer agrees to purchase and NUVOTEQ agrees to provide Services;
“party” either NUVOTEQ or the Customer and “parties” shall means both of NUVOTEQ and the Customer;
“Policy Documents” has the meaning given to it in clause 33.4;
“Professional Service Plan” a plan containing indicative timescales for provision of the relevant Professional Services as agreed under a Professional Service Schedule;
“Professional Services” the Services to be provided under a Professional Service Schedule including discreet technology consultancy services and projects for a Customer (including the provision of Bespoke Software and/or other Deliverables);
“Professional Service Schedule” a Service Schedule under which NUVOTEQ agrees to provide Professional Services;
“Professional Service Term” the period during which Professional Services shall be provided pursuant to a Professional Service Schedule commencing on the relevant Service Commencement Date and continuing until the earliest of the following events to occur:
(i) expiry of any fixed term specified in the Professional Service Schedule;
(ii) fulfilment of both parties’ obligations under the Professional Service Schedule; or
(iii) termination of the Professional Service Schedule in accordance with any specific provisions of the Professional Service Schedule or otherwise in accordance with these Terms;
“Service” a service as described in the relevant Service Schedule, including connectivity, numbering, voice, security, hosting and Professional Services, with the term “Service” being defined more particularly in the relevant Service Schedule (including the provision of any NUVOTEQ Equipment which is incidental to the provision of a Service) as may be amended from time to time in accordance with the Change Management Process;
“Service Commencement Date” the date upon which NUVOTEQ (i) first makes a Service available for use by the Customer; or (ii) in the case of a Professional Service Schedule, commences provision of the relevant Service(s);
“Service Credit” the sums credited against future invoices in respect of the failure by NUVOTEQ to meet one or more Service Levels, as detailed in a Service Schedule;
“Service Description/s” the description of the Service as contained in the relevant Service Schedule;
“Service Level” an agreed level of service applicable to a Service as set out the applicable Service Schedule;
“Service Schedule” a schedule (including any appendices and/or annexes thereto) describing the Service to be provided to the Customer together with any applicable Service Levels which are incorporated into a Services Agreement by an Order Form;
“Services Agreement” these General Terms and Conditions, an Order Form and any Service Schedules which are referred to in an Order Form;
“Site” the premises at which NUVOTEQ agrees to provide Services to the Customer as detailed in an Order Form;
“Software” NUVOTEQ Software, Third Party Software and Bespoke Software;
“Special Condition” a provision described as such in an Order Form which either supplements, varies or disapplies a provision or provisions of the General Terms and Conditions and/or a Service Schedule;
“Standard Security Policy” the NUVOTEQ standard data security policy which details the security measures taken by NUVOTEQ in the provision of the Services, the current version of which is available at www.Nuvoteq.co.uk or upon request from NUVOTEQ;
“Third Party Software” Software which is proprietary to a third party and which is sub-licensed by NUVOTEQ to the Customer under a Services Agreement and is (i) detailed in an Order Form; and/or (ii) on NUVOTEQ Equipment;
“Term” the duration of a Services Agreement as defined in clause 2;
“USC’s” universal service credits purchased by the Customer and supplied to the Customer by NUVOTEQ on and subject to NUVOTEQ standard terms and conditions as notified to the Customer at the time of purchase;
“USC Conditions” NUVOTEQ current terms and conditions for the use of USC’s (a copy of which are available on request from NUVOTEQ);
“User” an individual who the Customer permits access to or use of a Service in accordance with a Services Agreement to use or access the Service purchased by the Customer; and
“Warranty Period” an agreedperiod of time (if any) detailed in a Professional Services Schedule, beginning on the date of the Professional Services passing the relevant Acceptance Criteria and during which the remedies in clause 3.3 are available for any Professional Services which are not provided materially in accordance with the relevant Professional Service Schedule.
- In a Services Agreement:
- words in the singular shall include the plural and words in the plural shall include the singular unless the context requires otherwise;
- words denoting any gender include all genders;
- the headings are for convenience only and shall not affect the construction of a Services Agreement.
- references to each party herein include references to its successors in title and permitted assigns.
- references to “includes” or “including” shall be read as being immediately followed by the words “without limitation”; and
- any capitalised terms (and terms beginning with a capital letter) that are used but are not defined herein shall be given their generally accepted meaning in the telecommunications industry or, where there is no such generally accepted meaning, their ordinary meaning.
- If there is a conflict or inconsistency between
any constituent part of a Services Agreement the following order of precedence
will be applied and the document higher in the order of precedence will prevail
with respect to such conflict or inconsistency and represent the binding
obligation on the parties:
- General Terms and Conditions;
- Service Schedule;
- Order Form,
save in respect of any Special Conditions referred to in an Order Form which expressly amend or disapply any provision within a Service Schedule and/or the General Terms and Conditions, in which case the Special Condition shall prevail.
- Standard Security Policy;
- Network Standards; and
- such other policy documents as may be notified by NUVOTEQ from time to time;
(the “Policy Documents”).
- NUVOTEQ may refer to the documents in clause 33.4 in relation to NUVOTEQ provision of the relevant Service but any such reference will be for guidance only.