The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Consultancy: either one to one consultancy services or remote use of the Services via UC Advisor Ltd’s website.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who engages the Services of the Supplier.
Force Majeure Event: has the meaning given to it in clause 10.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off [or unfair competition], rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Services: a consultation with the Customer to map out their specific requirements with a view to identifying suitable Unified Communication Solutions via Global Partner Network introductions.
Supplier: UC Advisor Ltd registered in England and Wales with company number 11771013.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU)
2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Supplier and Customer agree to be bound by these Conditions for the provision of the Services.
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Service specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any prior agreed performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s obligations
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause.
5. Charges and payment
5.1 The Services provided to the Customer are free of charge.
5.2 In the event that the Customer enters into an agreement with one of the Supplier’s Network Partners following an introduction made by the Supplier, the Customer may receive a one off rebate from the Supplier up to one hundred percent of the deployment & implementation costs of the Network Partner, subject to eligibility criteria. In the event that eligibility criteria are met by the Customer, the rebate will be calculated with reference to the overall value of the Supplier’s Network Partner’s contract. In the event of this taking place and once known, the Supplier will disclose the level of the one off rebate to the Customer in a format similar to the illustration contained within Schedule 1. The one off rebate will only be paid to the Customer by the Supplier by BACS following an invoice raised by the Customer to the Supplier after at least 30 days have expired after the first billing period of the Supplier’s Network Partner.
5.3 In the event of the Customer cancelling the contract with one of the Suppliers Network Partners at any point prior to the end of the agreed contract term the Customer can be subject to a full chargeback and recovery of the initial rebate payment.
5.4 In the event that the Customer enters into an agreement with one of the Supplier’s Network Partners following an introduction made by the Supplier, the Customer may receive a one off rebate from the Supplier, subject to eligibility In the event that eligibility criteria are met by the Customer, the rebate will be calculated with reference to the overall value of the Supplier’s Network Partner’s contract. In the event of this taking place and once known, the Supplier will disclose the level of the one off rebate to the Customer in a format similar to the illustration contained within Schedule 1. The one off rebate will only be paid to the Customer by the Supplier by BACS following an invoice raised by the Customer to the Supplier after at least 30 days have expired after the first billing period of the Supplier’s Network Partner unless otherwise agreed.
5.5 In the event that the Customer enters into an agreement with one of the Supplier’s Network Partners following an introduction made by the Supplier, the Supplier may receive a commission payment from the Network In the event of this taking place and once known, the Supplier will disclose the level of commission to the Customer.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
7. Data protection
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations
or rights under the Data Protection Legislation. In this clause, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or
damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data ProtectionLegislation by providing an adequate level of protection to any personaldata that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advanceby the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
8.1 Without affecting any other right or remedy available to it, either party may terminate the Services with immediate effect at any time prior to the Customer entering into an agreement with a Network Partner of the Supplier.
8.2 In the event of the Customer terminating the contract with one of the Suppliers Network Partners at any point prior to the end of the agreed contract term the Customer will be subject to a full chargeback and recovery of the rebate payment.
9. Consequences of termination
9.1 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.2 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
10. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
11. Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by fax to its main fax number or sent by email to the main email address
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt; and
(ii) if sent by pre-paid first-class post or other next working day deliveryservice, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
14. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16. Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any
statement in the Contract.
17. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
19. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
20. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.