1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions:
"Brought Into Service" means the date on which the System is first brought into use by the Customer, as agreed with Dotphone and/or the Network Operator (as appropriate);
"Business Day" a day other than a Saturday, Sunday or public holiday in England when banks are open for business;
"Contract" the contract for the supply of the System, the Hardware and/or the Services (as applicable) formed by Dotphone's written acceptance of the Order (which, however made or communicated, shall be subject to these terms and conditions);
"Customer" the person, firm or company who purchases the System, the Hardware and/or Services (as applicable) from Dotphone;
"Customer Data" means the data inputted by the Customer or Users for the purpose of using the System or facilitating the Customer's use of the System;
"Customer's Manager" means the Customer's manager appointed in accordance with condition 5.1(a);
"Data Controller" has the meaning set out in section 1(1) of the Data Protection Act 1998;
"Data Protection Legislation" means all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction;
"Data Subject" means an individual who is the subject of Personal Data;
"Documentation" means any and all user and technical documentation prepared by or on behalf of Dotphone relating to the System and the Hardware;
"Dotphone" means Dotphone Limited (Company No. 10047295) of 4 Villa Mount, Wyke, Bradford, West Yorkshire, United Kingdom, BD12 9LD;
"Hardware" means the hardware to be supplied by Dotphone to the Customer, as detailed in the Proposal;
"Fees" means the Usage Charges and the fees payable by the Customer for the supply of the System, the Hardware and/or the Services, as specified in the Payment Schedule;
"Instructions" means the detailed written instructions regarding how to use, store and maintain the System and the Hardware (as applicable), as set out in the Documentation;
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation 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;
"Network Operator" means a public or private telecommunications network operator providing a telecommunications network or circuit;
"Normal Business Hours" means 9:00am to 5:00pm on Business Days;
"Order" means the order placed by the Customer for the supply of the System, the Hardware and/or the Services (as applicable) by Dotphone;
"Payment Schedule" means the payment schedule set out in the Proposal which sets out the Fees payable by the Customer under the Contract;
"Personal Data" has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Dotphone is providing the System and/or the Services under the Contract;
"Processing and process" have the meaning set out in section 1(1) of the Data Protection Act 1998;
"Proposal" means Dotphone's proposal issued to the Customer prior to the Order in respect of the supply of the System, the Hardware and/or the Services which shall include, without limitation, details of the Fees, the Payment Schedule, the Users and the Site;
"Services" means the services to be provided by Dotphone relating to the System and as detailed in the Proposal, such as setup and installation of Hardware and internet connections;
"Site" means the Customer's premises detailed in the Proposal;
"System" means the online software applications provided by Dotphone as more particularly described in the Documentation;
"Support Services Policy" means Dotphone's policy for providing support in relation to the System and the Hardware as set out in the Proposal or otherwise as may be notified to the Customer from time to time;
"Usage Charges" means the System usage charges detailed in the Proposal;
"Users" means the number of individual users entitled to access and use the System as detailed in the Proposal;
"VAT" means value added tax chargeable under English law for the time being and any similar additional tax; and
"Virus" means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or device.
1.2 Condition headings shall not affect the interpretation of the Contract.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2 Application of Conditions
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract;
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's Order or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Dotphone unless in writing and signed by a duly authorised representative of Dotphone.
2.3 All samples, drawings, descriptive matter, specifications and advertising issued by Dotphone and any descriptions or illustrations contained in Dotphone's catalogues, brochures and data sheets are issued or published for the sole purpose of giving an approximate idea of the System, the Hardware and the Services described in them. They shall not form part of the Contract.
2.4 The Proposal will be valid for 28 days.
3 Effect of Order
3.1 The Order constitutes an offer by the Customer to purchase the System, the Hardware and the Services (as applicable) in accordance with these conditions. The Order shall only be deemed to be accepted when Dotphone issues written acceptance of the Order at which point and on which date the Contract shall come into existence (the "Commencement Date").
4 Dotphone's Obligations
4.1 Dotphone shall:
(a) ensure that accurate bills for Usage Charges are provided;
(b) use reasonable endeavours to meet the performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence of the Contract;
(c) where there is a statutory requirement for Dotphone to do so, obtain technical approval from the relevant authority for the System (where applicable), except for any requirements Dotphone disclaims responsibility to perform in writing; and
(d) comply with all laws and regulations which apply to the provision of the Services, the Hardware and the System.
4.2 Dotphone will, as part of the provision of the System and the Hardware and at no additional cost to the Customer, provide the Customer with the Dotphone's standard customer support services during Normal Business Hours in accordance with the Dotphone's Support Services Policy in effect at the time that the System and Hardware (as applicable) are provided. Dotphone may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services, including onsite support, separately at the Dotphone's then current rates. For the avoidance of doubt, unless otherwise agreed between the parties, Dotphone shall only provide support services in relation to hardware supplied by Dotphone and not by the Customer or any third party.
5 Customer's Obligations
5.1 The Customer shall:
(a) co-operate with Dotphone in all matters relating to the System, the Hardware and Services (as applicable) and appoint the Customer's Manager, who shall have the authority to contractually bind the Customer on matters relating to the System, the Hardware and the Services (as applicable);
(b) comply with all applicable laws and regulations with respect to its activities under the Contract;
(c) carry out all of the Customer's responsibilities set out in the Contract or the Proposal in a timely and efficient manner;
(d) ensure that its network and systems comply with the relevant specifications provided by Dotphone from time to time;
(e) unless otherwise agreed between the parties, be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Dotphone's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet;
(f) provide in a timely manner such access to the Site, and such office accommodation and other facilities, as is requested by Dotphone to perform the Services and/or to supply the System and/or the Hardware;
(g) ensure that the System and the Hardware (as applicable) are used only for the purposes for which they are designed, and operated in a proper manner by trained competent personnel in accordance with the Instructions;
(h) ensure that it complies with all laws and regulations in relation to the use of the System, the Hardware and the Services, including, in relation to making and recording calls and automated calls the requirements set out in the Regulation of Investigatory Powers Act 2000 (RIPA), the Telecommunications (Lawful Business Practice), the (Interception of Communications) Regulations 2000 (SI 2000/2699) (Lawful Business Regulations) and the Data Protection Legislation;
(i) keep Dotphone fully informed of all material matters relating to the System and the Hardware;
(j) unless otherwise set out in these conditions or agreed between the parties, obtain (at its costs) any and all the wayleaves or other similar property rights or arrangements for the Site, approvals and permissions necessary for Dotphone to perform the Services and supply the System and the Hardware;
(k) provide in a timely manner such information as Dotphone may request (including, without limitation, technical information regarding the Site and the Customer's operating requirements), and ensure that such information is accurate in all respects;
(l) be responsible (at its own cost) for preparing the Site for the supply of the Services, the Hardware and the System in accordance with Dotphone's and/or the Network Operators instructions (including, without limitation, providing scaffolding, unskilled labour, lifting gear, builders' work, electrical supplies (which the Customer shall ensure are clean, stable and maintained), heating, lighting and ventilation). The Customer acknowledges and agrees the cutting away and making good of floors, ceilings, ceiling tiles and panels, trenching, back filling, the supply and erection of poles and the provision of trunking or ducting shall not be supplied by Dotphone unless otherwise agreed in writing;
(m) where required:
(i) obtain the Network Operator's consent for the connection of the System and/or the Hardware to the relevant network;
(ii) obtain any necessary test lines;
(iii) pay any and all costs associated with such connections and test lines; and
(iv) comply with any terms and conditions relating to such connections and test lines at all times;
(n) ensure (at its own cost) structured cabling and/or block extension wiring is in accordance with relevant BSI standards, unless Dotphone agrees in writing to provide the same;
(o) pay Dotphone's costs and expenses associated with the acceptance and testing of any structured cabling and/or block extension wiring provided by the Customer; and
(p) only use authorised copyright works or data on the System and in particular shall not use recordings of third party works for voicemail and call waiting where such recordings have not been licensed.
5.2 If Dotphone's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer's agents, sub-contractors or employees (including, without limitation, any breach of condition 5.1 in whole or in part), the Customer shall in all circumstances be liable to pay to Dotphone on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere).
5.3 The Customer understands and acknowledges that the System is supplied by VoIP and the technical delivery mechanism of VoIP services means that:
(a) different data packets may travel different routes and this can cause some voice quality and reliability issues which will be affected by the volume of use where the relevant network is heavily used;
(b) the System may sometimes be unavailable as a result of things over which Dotphone has no control, for example, the weather, power disruptions and failures of the Customer's internet service provider or broadband connection and the Customer understands that all services (including public emergency call services) will also be unavailable;
(c) mobility and location independence may mean that an emergency call will not be directed to the nearest emergency service call centre and emergency operators and authorities may not be able to identify the Customer's phone number in order to call the Customer back if the call is unable to be completed, is dropped or disconnected, or if the Customer is unable to speak to tell them the Customer's phone number and/or if the service is not operational for any reason, Emergency operators and authorities may also not be able to hold the Customer's line open in the event that the Customer hangs up;
(d) if there is a power cut at the Site a VoIP telephone will not work unless an alternative source of power is available; and
(e) VoIP services do not generally encrypt transmissions and therefore no warranty is provided in relation to the security of any calls.
6 Delivery of Hardware
6.1 The Supplier shall deliver the Hardware to the Site at any time after Dotphone notifies the Customer that they are ready for delivery. Delivery of the Hardware shall be completed on their arrival at the Site.
6.2 If for any reason the Customer fails to take delivery of the Hardware or Dotphone is unable to make delivery of the Hardware on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Hardware shall pass at the point Dotphone was ready to deliver the Hardware in accordance with condition 6.1;
(b) the Hardware shall be deemed to have been delivered;
(c) where applicable, Dotphone may charge the Customer for Dotphone's abortive delivery costs; and
(d) Dotphone may store the Hardware until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
7 Title and risk
7.1 The risk in the Hardware shall pass to the Customer at the time of delivery in accordance with condition 6.1 or, if the Customer fails to take delivery of the Goods, the time when the Supplier was ready to deliver the Goods in accordance with condition 6.1.
7.2 Ownership of the Hardware shall not pass to the Customer until Dotphone has received in full (in cash or cleared funds) all sums due to it in respect of the Hardware which are due to Dotphone at such time.
7.3 Until ownership of the Hardware has passed to the Customer pursuant to condition 7.2, the Customer must:
(a) not resell the Hardware;
(b) remove the Hardware or cause or permit the Hardware to be removed from the Site;
(c) hold the Hardware on a fiduciary basis as Dotphone's bailee;
(d) not destroy, deface or obscure any identifying mark or packaging on or in relation to the Hardware;
(e) maintain the Hardware in satisfactory conditions insured on Dotphone's behalf for their full price against all risks to the reasonable satisfaction of Dotphone from the date of delivery. On request the Customer shall produce the policy of insurance to Dotphone; and
(f) hold the proceeds of the insurance referred to in condition 7.3(e) on trust for Dotphone and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
(g) notify the Supplier immediately if it becomes subject to any of the events listed in condition 15.2(c)to condition 15.2(j); and
(h) give Dotphone such information relating to the Hardware as Dotphone may require from time to time.
7.4 If before title to the Hardware passes to the Customer in accordance with condition 7.2 the Customer becomes subject to any of the events listed in condition 15.2(c)to condition 15.2(j) or if the Customer has not paid for the Hardware by the due date for payment, then, without limiting any other right or remedy Dotphone may have:
(a) at Dotphone's discretion, the Customer's right to possession of the Hardware shall terminate; and
(b) Dotphone may at any time:
(i) require the Customer to deliver up the Hardware; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Hardware is stored in order to recover them and the Customer grants Dotphone a licence to enter the relevant premises in order to undertake such recovery.
8.1 Where agreed between the parties as part of the Services, Dotphone shall at the Customer's expense (details of which shall be set out in the Proposal) install the Hardware at the Site during Normal Business Hours (unless otherwise agreed between the parties in writing). All ordinary cutting away (as shall be determined by Dotphone) is included as part of the installation of Hardware, however making good, redecorating or work normally carried out by a specialist tradesman is excluded.
8.2 Dotphone shall perform installation tests within 7 days of Dotphone giving written notice of the completion of installation of the Hardware at the Site to show that such Hardware is ready to be Brought Into Service.
8.3 The installation of the Hardware shall be deemed to have been accepted by the Customer on whichever is the earliest of:
(a) the signing by the Customer of an acceptance certificate for the successful installation of the Hardware;
(b) the expiry of seven days after the issuance by Dotphone of notice of completion of the installation of the Hardware; or
(c) the use of the Hardware by the Customer in the normal course of its business.
8.4 If the Hardware is subject to testing by a Network Operator, Dotphone accepts no responsibility for the conduct of such hardware tests and the final introduction into service of the Hardware will occur at a date agreed between the Customer and the Network Operator.
9 The System
9.1 In consideration of the payment by the Customer of the relevant Fees in accordance with condition 10, Dotphone grants to the Customer a non-exclusive, non-transferable, non-sub-licensable, licence to use the System at the Site solely for the Customer’s own internal business use (which shall not include allowing the use of the System by, or for the benefit of, any person other than a User) during the Term (as defined in condition 15.1) for the number of Users specified in the Proposal.
9.2 The number of Users of the System shall be as detailed in the Proposal or otherwise agreed between the parties in writing. The Customer shall:
(a) ensure that the number of persons using the System does not exceed the number of Users detailed in the Proposal; and
(b) notify Dotphone as soon as it becomes aware of any unauthorised use of the System by any person.
9.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the System that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property; and Dotphone reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this condition.
9.4 Dotphone shall endeavour to make the System available in accordance with service level specified in the Proposal (if any), except for:
(a) planned maintenance, repair or improvement carried out during the maintenance window specified in the Proposal or otherwise notified to the Customer with reasonable advance notice; and
(b) unscheduled maintenance performed outside the planned maintenance window specified in condition 9.4(a), provided that Dotphone has used reasonable endeavours to give the Customer at least 1 hour's notice in advance.
9.5 Dotphone may from time to time:
(a) give instructions regarding the use of the System which in Dotphone's reasonable opinion are necessary in the interests of safety or to maintain or improve the quality of the System and any such instructions shall, whilst they are in force, be deemed to form part of the Contract between the Customer and Dotphone; and/or
(b) vary the technical specification of the System for operational needs.
10 Charges and payment
10.1 In consideration of Dotphone providing the System, the Hardware and the Services (as applicable), the Customer shall pay the Fees in accordance with the Payment Schedule.
10.2 The Customer shall pay each invoice submitted to it by Dotphone in full, and in cleared funds, within the period(s) specified in the Proposal.
10.3 Without prejudice to any other right or remedy that Dotphone may have, if the Customer fails to pay Dotphone on the due date Dotphone may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC plc, accruing on a daily basis and being compounded monthly until payment is made, whether before or after any judgment; and
(b) suspend all Services and/or disable the Customer's access to the System until payment has been made in full.
10.4 Time for payment shall be of the essence of the Contract.
10.5 All payments payable to Dotphone under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
10.6 Dotphone may, without prejudice to any other rights it may have, set off any liability of the Customer to Dotphone against any liability of Dotphone to the Customer.
10.7 If, at any time whilst using the System, the Customer exceeds the amount of disk storage space, Users, computing resources, bandwidth or any other criteria specified in the Proposal, Dotphone shall charge the Customer, and the Customer shall pay, Dotphone's then current excess fees.
11.1 Dotphone warrants that:
(a) the System shall from being Brought into Service and for a period of 30 days or, if different, as set out in the Proposal (the "Warranty Period") operate substantially in accordance with the Documentation; and
(b) it will provide the Services using reasonable skill and care; and
(c) it has taken all requisite corporate and other action to approve the execution, delivery and performance of the Contract.
11.2 The undertaking at condition 11.1(a) shall not apply to the extent of any non-conformance which is caused by use of the System contrary to Dotphone's instructions (including, without limitation, the Documentation), or modification or alteration of the System by any party other than Dotphone or Dotphone's duly authorised contractors or agents. If the System does not conform with the foregoing undertaking, Dotphone will, at its expense, endeavour to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in condition. Notwithstanding the foregoing, Dotphone:
(a) does not warrant that: the Customer's use of the System will be uninterrupted or error-free; or that the System, Documentation and/or the information obtained by the Customer through the System will meet the Customer's requirements;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the System and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
(c) shall have no liability for breach of warranty or otherwise arising as a result of: any breach by the Customer of any of its obligations in relation to the System and/or the Services; the use of the Hardware and/or the System for a purpose for which they were not designed; or any fault in any equipment or in any programs not supplied by Dotphone and used in conjunction with the System.
11.3 Except as expressly stated in these Conditions, all warranties, conditions and undertakings, whether express or implied, statutory or otherwise are hereby excluded.
11.4 The Customer accepts responsibility for the selection of the System and the Hardware (as applicable) to achieve its intended results and acknowledges that the System has not been developed to meet the individual requirements of the Customer.
11.5 Any Hardware supplied shall be supplied with the manufacturing warranty only. Dotphone's sole liability to the Customer in respect of any such Hardware shall be an obligation to enforce at the Customer's expense any rights that Dotphone may have against the supplier.
12 Confidentiality and Dotphone's Property
12.1 The Customer acknowledges and agrees that Dotphone and/or its licensors own all intellectual property rights in the System and the Documentation. Except as expressly stated herein, the Contract does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the System or the Documentation.
12.2 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) except to the extent expressly permitted under the Contract, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the System and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the System; or
(b) access all or any part of the System and/or Documentation in order to build a product or service which competes with the System and/or the Documentation; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the System and/or Documentation available to any third party except the Users; or
(d) attempt to obtain, or assist third parties in obtaining, access to the System and/or Documentation.
12.3 The Customer shall:
(a) keep confidential the System and Documentation and any other information of a confidential or proprietary nature disclosed by Dotphone to the Customer (collectively, the "Confidential Information");
(b) effect and maintain adequate security measures to safeguard the Confidential Information from access or use by any unauthorised person and in particular limit access to the same to those of its employees, agents and sub-contractors who either have a need to know or who are engaged in the use of the System and Documentation in accordance with the terms hereof (collectively "Representatives"); and
(c) without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and Intellectual Property Rights of Dotphone in the Confidential Information.
12.4 The Customer shall inform all relevant Representatives that the Confidential Information constitutes confidential information of Dotphone and that all Intellectual Property Rights therein are the property of Dotphone or its licensors and the Customer shall take steps as shall be necessary to ensure compliance by its Representatives with the provisions of this condition 12 and shall at all times be liable to Dotphone for the failure of any Representative to comply with the terms of the Contract.
12.5 The Customer will give all reasonable assistance to Dotphone in proceeding against any person to whom the Customer has disclosed the Confidential Information or any part thereof and shall promptly notify Dotphone if it becomes aware of any breach of confidentiality or infringement of any of Dotphone's or its licensors' rights in the Confidential Information (whether actual or threatened) by any person (whether authorised or otherwise) or of any unauthorised use of the Confidential Information by any person. The provisions of this condition 12 will survive termination of the Contract for any reason.
13 Customer Data and Data Protection
13.1 The Customer shall:
(a) own all right, title and interest in and to all of the Customer Data;
(b) comply with the Data Protection Legislation; and
(c) have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
13.2 Dotphone shall follow the archiving procedures for Customer Data as set out in the Proposal (if any). In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Dotphone to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Dotphone in accordance with the Proposal. Dotphone shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Dotphone to perform services related to Customer Data back-up).
13.3 The Customer and Dotphone acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the Data Controller and Dotphone is the data processor in respect of any Personal Data in the Customer Data.
13.4 The Customer shall:
(a) ensure that the Customer is entitled to transfer the relevant Personal Data to Dotphone so that Dotphone and its third party suppliers may lawfully use, process and transfer the Personal Data in accordance with this Contract on the Customer's behalf; and
(b) ensure that the relevant third parties have been informed or, and have given their consent to, such use, processing, and transfer as required by all applicable Data Protection Legislation.
13.5 The Customer acknowledges that data on the System may be held on servers outside the EEA and hereby authorises Dotphone to hold data outside the EEA and shall obtain the relevant consents for Dotphone to do so.
13.6 Dotphone warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected;
(b) take reasonable steps to ensure compliance with those measures.
13.7 The Customer hereby agrees to indemnify and keep indemnified Dotphone against all costs, claims, damages or expenses incurred by Dotphone or for which Dotphone may become liable due to any failure by the Customer or its employees or agents to comply with this condition 13.
13.8The Customer acknowledges that Dotphone is reliant on the Customer for direction as to the extent to which Dotphone is entitled to use and process the Personal Data. Consequently, Dotphone will not be liable for any claim brought by a Data Subject arising from any action or omission by Dotphone, to the extent that such action or omission resulted directly from the Customer's instructions.
14 Limitation of liability
14.1 The following provisions set out the entire financial liability of Dotphone (including without limitation 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 howsoever arising;
(b) any use made by the Customer of the Services, the System, the Hardware or any part of them; and
(c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
14.2 All warranties conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these conditions excludes the liability of Dotphone:
(a) for death or personal injury caused by Dotphone's negligence; or
(b) for fraud or fraudulent misrepresentation; or
(c) for any liability that, by law, cannot be limited or excluded.
14.4 Subject to condition 14.2 and 14.3:
(a) to the fullest extent permitted by law, Dotphone fully excludes all liability where the Customer does not use the System and/or the Hardware in strict accordance with the Documentation;
(b) Dotphone shall not in any circumstances be liable, whether in tort (including without limitation for negligence and/or breach of statutory duty howsoever arising), contract, misrepresentation or otherwise for: loss of profits; or loss of business; or depletion of goodwill or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(c) Dotphone's total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited:
(i) where the liability relates to the Services, to the Fees payable by the Customer in respect of the Services to which the liability relates;
(ii) where the liability relates to the Hardware, to the Fees payable by the Customer in respect of the Hardware to which the liability relates;
(iii) where the liability relates to the System, to the Fees payable by the Customer in respect of the use of the System, including the Usage Charges, in the 12 month period before such liability first arose; and
(iv) where the liability does not fall within the scope of condition 14.4(c)(i) to condition 14.4(c)(iii), to the greater of £500 or:
(A) where the liability arises during the Term, the total Fees payable by the Customer in the 12 month period before the relevant liability first arose; or
(B) where the liability arises after the Term, the total Fees payable by the Customer in the 12 month period before the expiry or termination of the Contract.
15 Duration and Termination
15.1 Unless terminated in accordance with this condition 15, the Contract shall commence on the Commencement Date and shall continue for the term set out in the Proposal (the "Term") and can be terminated thereafter in accordance with the provisions set out in the Proposal.
15.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 15.2(c) to condition 15.2(i) (inclusive).
15.3 Termination of the Contract however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
15.4 On termination for any reason:
(a) the Customer shall cease all activities authorised by the Contract;
(b) the Customer shall immediately pay to Dotphone all of Dotphone's outstanding unpaid invoices and interest;
(c) Dotphone may destroy or otherwise dispose of any of the Customer Data in its possession unless Dotphone receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Dotphone shall use reasonable commercial endeavours to deliver the back-up to the Customer within 60 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all expenses incurred by Dotphone in returning or disposing of Customer Data (which shall include technical support and data transfer charges); and
(d) where applicable, the Customer shall immediately destroy or return to Dotphone (at Dotphone's option) all copies of the System then in its possession, custody or control and, in the case of destruction, certify to Dotphone that it has done so.
15.5 Any provision within these conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16 Force Majeure
16.1 Dotphone shall not in any circumstances have any 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, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Dotphone or any other party), failure of a utility service or transport network, 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 Dotphones or sub-contractors.
17.1 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.
18 Rights and Remedies
18.1 The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this condition shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20 Entire Agreement
20.1 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. 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 misstatement based on any statement in the Contract. Nothing in this condition 20.1 shall limit or exclude any liability for fraud.
21.1 The Customer shall not, without the prior written consent of Dotphone, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
21.2 Dotphone may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
22 No partnership or agency
22.1 Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including, without limitation, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23 Third party rights
23.1 No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
24.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(b) sent by email to Dotphone's email address designated in the Proposal and in relation to the Customer the primary contact email address provided in the Order form.
24.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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 at the time recorded by the delivery service.
(c) if sent by email, at 9.00 am on the next Business Day after transmission.
25 Governing law and jurisdiction
25.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
25.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).