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HOSTED IP - TERMS AND CONDITIONS

1. Definitions: -

"Agreement" this agreement, it’s schedules and annexes;

"Broadband Service" the broadband, email, installation, hosting, security, domain name and broadband IP allocation service;

"Business Day" any day which is not a Saturday, a Sunday or a bank or public holiday in England;

"Confidential Information" means information of a confidential nature, including trade secrets and information of commercial

value, concerning TalkTech and any part of the Services (including without limitation the terms of this Agreement,

any accepted Purchase Order, the negotiations relating to this Agreement and any know how or methods disclosed to the

Customer by TalkTech);

"TalkTech Equipment" the equipment either sold or leased by TalkTech to the Customer to enable

TalkTech to provide the Services (such as, without limitation, routers, IAD’s, hard IP phones and data switches) and

such other equipment provided by TalkTech to the Customer from time to time;

"Intellectual Property Rights" all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how,

database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all

applications for the same;

"Local Access Charges” means the Local Access Non-Recurring and Local Access Recurring Charges as provided in the

Purchase Order;

"Monthly Charge" means both the service charges for the hosted elements (such as, without limitation Extension Licensing,

Voice Mail, WAN services and E Mail, that are charge monthly (unless agreed differently) and also charges for call traffic that

are charged at the agreed rate.

"Monthly Review Period" means a period of a calendar month commencing on the 1st of each month during the term of the

Agreement, over which Service Availability is calculated, except that the first such period shall commence on the Service

Commencement Date;

"Moss Score" A measure used by service providers to grade the quality of a telephone call. The Moss Scale is from 1 to 5

with 5 being the highest score. An average telephone call on the existing public network will score 4.1

"Planned Outage" means any routine maintenance or upgrade work, which may affect the availability of Services;

“Third Party Local Access" means short haul physical connections (including any DSL local access connections), that are

provided between the Customer’s premises and the nearest feasible TalkTech point of presence, which are under

the direct control and ownership of a third party;

 

2. Order process:-

2.1 Once this Agreement has been entered into, the Customer shall complete a Purchase Order and submit it to Talking

Technology if it wishes to receive services from TalkTech.

2.2 TalkTech is not obliged to accept any Purchase Orders submitted by the Customer and TalkTech

shall, in its sole discretion, decide whether to accept the Customer's Purchase Order.

2.3 If TalkTech accepts the Purchase Order submitted by the Customer, the terms and conditions set out shall

apply to the accepted Purchase Order and the provision of the Services. 2.4 An accepted Purchase Order together with these Terms and Conditions shall constitute one agreement and shall be deemed distinct from any other accepted Purchase Orders.

2.5 If there is any conflict between parties, these Terms and Conditions shall prevail.

 

3. Services:-

3.1 TalkTech shall provide the Customer with the Services and use reasonable endeavours to provide them in

accordance with acceptable Service Levels.

3.2 If the Services fail to meet acceptable Service Levels, TalkTech shall pay the Customer the Service Credits

provided that the Customer makes its claim in writing to TalkTech for the Service Credits within 30 days of first date

on which the Service failed the Service Levels. The parties agree that the provision of Service Credits shall be the Customer's

only remedy for TalkTech’s failure to meet the Service Levels.

3.3 The Customer must:

- comply with any reasonable instructions issued by TalkTech which concern the use of the Services;

- comply promptly with any reasonable request issued by TalkTech if the Customer's assistance is required to

enable TalkTech to comply with its obligations under this Agreement;

- not use the Services to transmit any material which is defamatory, offensive or of an abusive or obscene or menacing

nature or which is otherwise unlawful;

- not cause annoyance, inconvenience or needless anxiety or make any improper use of the Services; or

- not use the Services in a way that constitutes a violation or infringement of the rights of any person or which is unlawful.

 

4. Provision of Licenses & Services:-

4.1 Licences to support the required service are provisioned to the customer on the basis of a recurring monthly fee for the

duration of the contract only.

 

5. Provision of Hardware:-

5.1 The Customer may lease or purchase the hardware to support the hosted services from any source as long as the

equipment is on the approved list of hardware items.

 

6. Support and Maintenance:-

6.1 TalkTech shall use reasonable endeavours to provide the support services to the Customer. The Customer

shall report any faults in the Services, and TalkTech shall respond to any reported faults,

6.2 If any maintenance work has to be carried out which may affect the Services, TalkTech shall endeavour to give

the Customer at least two days' prior written notice. In the event of an emergency or a fault affecting the Services, Talking

Technology reserves the right to give less than 24 hours' notice, and the Customer shall if required provide Talking

Technology with such access to the Customer's premises or equipment as TalkTech requires.

 

7. Access to premises:-

7.1 Where TalkTech requires access to the Customer's premises to fulfil TalkTech’s obligations under

this Agreement, the Customer shall grant TalkTech, its agents, sub-contractors and employees access to the

Customer's premises and equipment 24 hours a day, seven days a week.

7.2 TalkTech shall use all reasonable endeavours to procure that its employees, agents and subcontractors

follow the Customer's reasonable instructions in respect of health and safety concerns while on the Customer's

premises.

7.3 The Customer shall provide a safe and suitable working environment for TalkTech’s employees, agents and

sub-contractors at the Customer's premises.

 

8. TalkTech Equipment:-

8.1 If TalkTech needs to install the TalkTech Equipment on the Customer's premises, the Customer shall

allow TalkTech access to the Customer's premises to install and operate the TalkTech Equipment.

8.2 The Customer shall allow TalkTech access to its premises for inspecting and maintaining the Talking

Technology Equipment 24 hours a day, 7 days a week.

8.3 The Customer shall not, and shall procure that its employees, agents and sub-contractors do not, interfere with any

TalkTech Equipment without TalkTech’s prior written consent.

8.4 The Customer shall follow all of TalkTech's reasonable instructions in respect of storing and using the Talking

Technology Equipment, and shall take good care of the TalkTech Equipment.

8.5 On termination of this Agreement, the Customer shall permit TalkTech access, without charge, to its premises

to recover the TalkTech Equipment if it has been leased to the Customer or if the Customer has not paid in full for

the TalkTech Equipment.

 

9. Payment:-

9.1 The Customer shall pay TalkTech the fees and charges as set out in, and in accordance with, the customer

purchase order.

9.2 The fees, charges and prices payable under this Agreement are exclusive of Value Added Tax and any other applicable

taxes which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.

9.3 The Customer shall pay all invoices in full within 14 days from the date of the invoice by direct debit.

9.4 The Customer shall pay all amounts due under this Agreement in full without any deduction or withholding other than as

required by law and shall not be entitled to assert any credit, set-off or counterclaim against TalkTech to justify

withholding any payment of any such amount in whole or in part.

9.5 TalkTech may conduct a fee review every 12 months. TalkTech shall be entitled to increase the fees

every 12 months by a maximum of 3% without the Customer's prior written consent. If TalkTech wishes to increase

the fees by more than 3%, it shall agree such fee increase in advance with the Customer and in writing.

9.6 The Customer acknowledges that the call charges are imposed by third parties. If those third parties increase/decrease

the call charges, TalkTech may increase/decrease its call charges by giving 30 days' written notice to the

Customer, and the Customer shall pay TalkTech those increased/decreased call charges.

 

10. Duration and Termination:-

10.1 This Agreement will commence on the Commencement Date and will continue for a period of 36 months after which it

will continue for further periods of 24 months, unless:

10.2 a party gives the other party three months' written notice to terminate the Agreement at any time

10.3 Either party may give notice in writing to the other party to terminate this Agreement with immediate effect if:

- the other party commits a material breach of any term of this Agreement which cannot be remedied, or in the case of a

breach capable of being remedied, has failed to remedy the breach within 30 Business Days of notice being given by the

other party requiring it to be remedied; or

- the other party becomes or is declared insolvent, or convenes a meeting of its creditors, or makes or proposes to make any

arrangement or composition with them, or if a liquidator, receiver, administrative receiver administrator, manager or similar

office holder is appointed over any of its assets or passes a resolution for winding up or a court makes an order to that effect,

or becomes or is declared bankrupt.

 

11. Warranties:-

11.1 TalkTech warrants that it:

- shall provide the Services with reasonable skill and care;

- has the necessary consents and licences to provide the Services in accordance with this Agreement.

11.2 The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations

implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to

the fullest extent permitted by law.

 

12. Suspension or alteration of the Services:-

12.1 TalkTech may suspend or alter the Services, or any part of them, at any time without liability to the

Customer if:

- TalkTech has to do so to comply with an order, instruction or request of a court, government, agency,

emergency organisation or other competent administrative or regulatory authority; or

- the Customer's use of the Services may damage or disrupt the proper functioning of TalkTech’s, or a third

party's, network.

12.2 TalkTech may suspend the Services, or any part of them, at any time without liability to the Customer if:

- TalkTech has reasonable grounds to believe that the Customer is using the Services for improper or unlawful

purposes;

- the Customer has not paid any fees due by the 14th day after the Due Date;

- the Customer is in breach of this Agreement

 

13. Liability:-

13.1 TalkTech’s total aggregate liability for the Services provided under each Purchase Order and any other

liability arising under or in connection with that Purchase Order shall not exceed an amount equal to the total amount of

fees that TalkTech has received in respect of that Purchase Order.

13.2 TalkTech shall not be liable for:

- any loss of revenue, profit, anticipated savings, goodwill or reputation (whether direct or indirect);

- deletion or loss of files, defects or delays in transmission or any failure of any servers or the internet;

- the transmission or receipt of infringing information of whatever nature transmitted via the Services;

- loss, destruction or damage to data stored, transmitted or used through the Services or on the network through which the

Services are made available to the Customer;

- loss or damage suffered by the Customer (whether direct or indirect) where the loss has been suffered as a result of any

virus or other hostile computer program being introduced through the use of the Services; or

- any indirect or consequential loss.

13.3 The Customer acknowledges that TalkTech is unable to exercise control over the information transmitted

through the Services, the connection or the network and TalkTech excludes all liability of all kinds for the

transmission or reception of infringing information of whatever nature.

13.4 The Customer shall indemnify TalkTech in full against any liabilities incurred by TalkTech as a

result of the Customer breaching this Agreement or any law from time to time in force.

 

14. Confidentiality:-

14.1 The Customer agrees that it shall at all times (both during the term of this Agreement and after its termination) keep

confidential, and shall not use (other than strictly for the purposes of this Agreement) and shall not, without the prior written

consent of TalkTech, disclose to any third party any Confidential Information, unless the information:

- was public knowledge or already known to the Customer at the time of disclosure;

- subsequently becomes public knowledge other than by breach of this Agreement; or

- subsequently comes lawfully into the possession of the Customer from a third party.

14.2 To the extent necessary (but not further or otherwise), the Customer may disclose the Confidential Information to any

employees of the Customer provided that before any such disclosure the Customer shall make those persons aware of its

obligations of confidentiality under this Agreement and shall obtain a binding undertaking as to confidentiality from all such

persons.

14.3 The Customer shall return all documents and other records (in whatever form) containing Confidential Information

supplied to or acquired by the Customer from TalkTech to TalkTech on termination of this Agreement,

and the Customer shall keep no copies of the Confidential Information.

14.4 TalkTech Ltd shall maintain the confidentiality of the Customer’s recorded conversations and protect

recordings of the data, any recording files or any such information created by the Customer in using the Hosted Services

(“the Data”). TalkTech Ltd undertakes that the Data created in using the Hosted Services under this Agreement

shall be kept confidential and TalkTech Ltd shall not be permitted to make any use of the Data or process such

Data or information for any purpose except to serve the requirements of the Customer to have back up storage of the Data.

Any copies or back ups of the Data will only be made for the Customer’s use, and TalkTech Ltd agrees not to

make use in any manner or form of the Data recordings without the written approval of the Customer.

14.5 TalkTech Ltd shall protect the Data of the Customer against unauthorised disclosure by maintaining

adequate security measures to ensure that no third party can access the Data by gaining physical access to any server or

data storage or by any remote means by way of virus, Trojan horse or any other malicious software.

14.6 This clause 14 shall survive the termination of this Agreement for any reason.

 

15. Publicity:-

15.1 The Customer agrees that TalkTech may:

- disclose to third parties that TalkTech has provided, or is providing, the Services to the Customer; and

- use the Customer’s name, trade marks, logo and testimonial (if a testimonial is provided) in promotional material and

communications including, but not limited to, proposals, press releases, trade magazines, presentations, website and

corporate brochure, provided that TalkTech obtains the Customer's prior written approval, such approval not to

be unreasonably withheld or delayed.

 

16. Force Majeure:-

16.1 Except in respect of the Customer's obligations to pay the fees and charges, neither party shall be in breach of this

Agreement, or liable to the other in any way whatsoever, for any failure to perform, or delay in performing, its obligations

under this Agreement, to the extent that such failure or delay is the result of a cause beyond that party's reasonable control.

16.2 Clause shall not apply in respect of any failure or delay unless the party affected by such a cause gives notice to the

other of that failure or delay and the cause within ten Business Days of becoming aware of the cause and its impact on that

party.

16.3 If a party is prevented from performing any obligations it has under this Agreement for more than eight weeks, the

other party is entitled to terminate this Agreement by giving written notice to the other party, such notice to have immediate

effect.

 

17. Notices:-

17.1 Any notice required to be given pursuant to this Agreement shall be in writing and shall be given by delivering the

notice by hand at, or by sending the same by prepaid first class post (airmail if to an address outside the country of posting)

to, the address of the relevant party set out in this Agreement, or such other address as either party notifies to the other

from time to time. Any notice given according to the above procedure shall be deemed to have been given at the time of

delivery if delivered by hand or if sent by post, two clear Business Days after the notice is posted.

 

18. Assignment:-

18.1 The Customer shall not without the prior written consent of TalkTech assign, transfer, charge or deal in any

other manner with this Agreement or its rights under it or part of it, or purport to do any of the same.

18.2 TalkTech may assign, transfer, charge or deal in any other manner with this Agreement or its rights under it

or part of it provided that no such assignment, transfer or charge shall relieve TalkTech of its obligations under

this Agreement.

 

19. Amendments:-

19.1 Save as expressly provided in this Agreement, no amendment or variation of this Agreement shall be effective unless

in writing and signed by a duly authorised representative of each of the parties to it.

 

20. Waiver:-

The failure or delay of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of

that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.

 

21. Governing Law and Jurisdiction:-

This Agreement shall be governed by and construed in accordance with English law and each party hereby irrevocably

submits to the exclusive jurisdiction of the English Courts, provided always that TalkTech shall be entitled to take

action in any other jurisdiction to protect its Intellectual Property Rights, or those of its third party suppliers, or its

Confidential Information.

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