These ASK4 General Terms of Supply are incorporated in and apply to all Orders for our business and support services.
Our contract shall be made up of:
- the Order(s);
- these ASK4 General Terms of Supply; and
- the relevant Service Terms;
being together the “Agreement”.
If there is a conflict between the documents listed above, the order of precedence shall be as listed above (highest to lowest).
You are strongly advised to read these documents carefully in their entirety.
You are particularly advised to read Clauses 2.0 (Ordering Services), 5.0 (Your Obligations), 13.0 (Limitations of Liability), 15.0 (Termination), 17.0 (Data Protection), and 22.0 (Entire Agreement) of these ASK4 General Terms of Supply.
No terms or conditions endorsed on, delivered with, or contained in Your purchase order, confirmation of order, specification, or any other document shall form part of the Agreement.
1.0 DEFINITIONS AND INTERPRETATION
Additional Charges
means any charges for the use of the Services not included in the Recurring Charges as set out in the Order or the Price Guide, including Call Charges and charges for Additional Resources or Additional Usage.
Additional Resource
means the provision by ASK4 of additional professional services, engineering, and installation, and the provision of Equipment or other similar services as the Parties may agree for ASK4 to provide to You as set out in more detail in the Order.
Additional Usage
means any usage of the Services in excess of the agreed limits as set out in the Order.
ASK4
means the ASK4 entity specified in the Order.
ASK4 Equipment
means any equipment supplied or used to supply the Service that is not Purchased Equipment (for the avoidance of doubt Purchased Equipment provided on credit, rental, or lease terms shall remain ASK4 Equipment until all Charges under the Agreement are paid in full).
ASK4 General Terms of Supply
means these terms and conditions as amended from time to time in accordance with the Agreement.
Business Days
means any day other than a Saturday or Sunday or a public or bank holiday in England.
Call Charges
means the charges payable for the use of any Voice Services by You as set out in the Price Guide.
Charges
means ASK4’s charges payable under the Agreement, including the Recurring Charges, Installation Charges, Call Charges, and Additional Charges.
Commencement Date
means when ASK4’s binding obligation to supply any Services arises pursuant to Clause 2.0.
Controller, Personal Data, Processor, and Process
each have the meanings given to them in the applicable Privacy and Data Protection Laws.
Credentials
means a username, access code, password, code, PIN number, account number, smart card, or other security device issued to You by ASK4.
Customer Equipment
means any apparatus and any software embodied therein (including, without limitation, Purchased Equipment, cabling, wiring, personal computers, network interface cards, and network interface adapters) that is not ASK4 Equipment.
Customer Personal Data
means the Personal Data of Your customers or other such data subjects that ASK4 needs to process on Your behalf as a processor in providing the Services to You under the Agreement.
Early Termination Charge
means an amount equal to:
(i) the sum of all of the Recurring Charges and Installation Charges due or to become due during the Initial Service Period (or the current Renewal Period if termination occurs during such a period) for the relevant Service; and
(ii) a sum equal to all of the remaining expected monthly Additional Charges due to ASK4 for the remainder of the Initial Service Period (or the current Renewal Period if termination occurs during such a period) for the relevant Service based upon the average monthly Additional Charges paid over the preceding three (3) months prior to the date of termination.
Equipment
means ASK4 Equipment, Purchased Equipment, and Customer Equipment.
Group Company
means any subsidiary undertaking or parent undertaking of ASK4 Limited as defined by section 1162 of the Companies Act 2006.
Initial Service Period
means the period stated as such in the Order that each of the Service(s) is to be provided for from the Commencement Date in respect of that Service and is 36 months if no such period is stated. References within the Order to a “Minimum Period”, the “Term”, the “Contract Term” or similar shall be read as references to the Initial Service Period.
Installation Charges
means any sums payable as set out in the Order and/or Price Guide for the connection, installation, or configuration of the Service.
Order
means ASK4’s standard order form as amended from time to time as accepted by ASK4 pursuant to Clause 2.0.
Party
means each of ASK4 and You.
Price Guide
means all and any information relating to Charges for ASK4’s services, available on request from ASK4.
Privacy and Data Protection Laws
means applicable legislation protecting the personal data and privacy of natural persons, including in particular the UK GDPR, the Data Protection Act 2018, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) together with any applicable binding guidance and codes of practice issued from time to time by relevant supervisory authorities.
Purchased Equipment
means any equipment You purchase or lease from ASK4 as detailed in the Order.
Recurring Charges
means any recurring and on-going monthly (unless otherwise agreed in the Order) charge for the provision of the Services and/or the Equipment as set out in the Order.
Renewal Period
means the fixed period that the contract shall continue for in respect of each of the relevant Service(s) on the expiry of the Initial Service Period or a Renewal Period as set out in the Order and where no such period is specified shall be a period of equal duration to the Initial Service Period. References within the Order to a “Subsequent Period”, “Subsequent Term” or similar shall be read as references to the Renewal Period.
Service Terms
means the additional terms and conditions of ASK4 relating to a particular Service.
Services
means the Service(s) set out in the Order as may be further defined in the Service Terms.
Service Commencement Date
means the date specified in the Order or if this is earlier or if no date is specified: (i) the date any of the Services are available for use by You; or (ii) the date You first use any of the Services.
Site
means the site (or sites) where any Equipment shall be located or to which the Services shall be provided.
Site Infrastructure
means data cabling, wiring, and any other parts of Your infrastructure at the Site that ASK4 may need to use in order to provide the Service.
Software
means any software supplied to You by ASK4 in connection with or to enable You to use the Service.
Survey
means any survey or other investigations carried out by or on behalf of ASK4 that ASK4 in its absolute discretion deems necessary prior to the installation of Equipment and/or the provision of the Service.
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
User Manual
means such brochures, pamphlets, codes of practice, and other documents, materials, or information, if any, in relation to the Services and/or any Software, as ASK4 may publish from time to time.
Voice Services
means the telephone and/or VoIP service provided by ASK4 as set out in the Order.
You
means the customer with whom ASK4 makes the Agreement as set out in the Order, or where appropriate, any person representing You if it appears to ASK4 that such person acts with Your authority or permission, and “Your” shall be defined accordingly.
1.1. References in the Agreement:
1.1.1. to a statutory provision will be interpreted as a reference to such provision as amended or re-enacted from time to time;
1.1.2. to a “person” includes any person, partnership, firm, company, body corporate, corporation, or organisation;
1.1.3. to a Party includes its respective successors and permitted assignees and their respective employees and agents; and
1.1.4. to any word in the singular include the plural and vice versa.
1.2. Where in the Agreement You agree not to do any act or thing, You also agree not to allow (including without limitation, taking all reasonable preventative measures) any other person to do that act or thing. Where in the Agreement You specifically acknowledge any provision or statement, You are deemed to agree to such provision or statement.
2.0 ORDERING SERVICES
2.1. Each Order by You to ASK4 shall be an offer to purchase Services subject to the Agreement.
2.2. ASK4 may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
2.2.1. ASK4’s written acceptance of the Order;
2.2.2. the Service Commencement Date; or
2.2.3. ASK4 starting to perform the Services or notify You that they are ready to be performed (as the case may be).
2.3. Rejection by ASK4 of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by You.
2.4. ASK4 may issue quotations to You from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by You.
2.5. An Order may be cancelled by ASK4 without liability if the results of any Survey are in ASK4’s reasonable opinion unsatisfactory or if it is not technically feasible to implement and/or support the Services by the Service Commencement Date.
2.6. Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Agreement.
3.0 TERM
3.1. This Agreement commences on the Commencement Date and, unless terminated earlier in accordance with Clauses 15.0 or 21.3, shall continue in respect of each Service for the Initial Service Period for that Service, whereupon it shall either continue in accordance with the provisions of Clause 3.2 or terminate solely in respect of that Service in accordance with the provisions of Clause 3.3.
3.2. On the expiry of the Initial Service Period (or a Renewal Period), this Agreement shall automatically continue for consecutive Renewal Periods unless either Party has given the other Party notice in accordance with Clause 3.3, or unless the Agreement is terminated sooner in accordance with Clauses 15.0 or 21.3.
3.3. This Agreement shall terminate in respect of each Service at the end of the Initial Service Period for that Service or at the end of the then-current Renewal Period for that Service only if either Party has given the other Party 60 days’ written notice (or such other notice period set out in an Order) to terminate that Service and such notice must expire either upon the end of the Initial Service Period or the end of the then-current Renewal Period (as the case may be).
3.4 This Agreement shall terminate when written notice in accordance with this clause is given to terminate all the Services provided by ASK4.
4.0 ASK4 OBLIGATIONS
4.1. ASK4 shall, subject to You complying with Your obligations under the Agreement, provide the Services:
4.1.1. with reasonable skill and care;
4.1.2. in accordance with the Service Terms and all applicable laws; and
4.1.3. by the Service Commencement Date provided that the Service Commencement Date shall not be of the essence.
5.0 YOUR OBLIGATIONS
5.1. You shall:
5.1.1. pay the Charges in accordance with the Agreement;
5.1.2. provide ASK4 without undue delay with accurate and complete information as is reasonably required to provide the Services, including information in relation to health and safety and the environment;
5.1.3. complete any preparatory activities that ASK4 may request to enable You to receive the Services promptly and in accordance with any reasonable timescales specified by ASK4;
5.1.4. cooperate with ASK4 and comply with any reasonable requests ASK4 makes to help ASK4 provide the Services;
5.1.5. be responsible for all users of the Services (whether authorised or not), and any breaches of the Agreement by any user;
5.1.6. warrant that You have full capacity and authority to enter into and perform the Agreement and that there is nothing that might affect Your ability to carry out Your obligations under the Agreement;
5.1.7. not re-sell the Services or Equipment or any part thereof to any person;
5.1.8. unless otherwise agreed in the Order, take overall responsibility for maintaining backups of all data and databases and ensuring that You have in place all necessary data and system security measures including without limitation anti-virus protection;
5.1.9. follow the technical instructions provided by ASK4;
5.1.10. use the Equipment and Services in accordance with the Agreement, any User Manual, the Service Terms, and all applicable laws; and
5.1.11. not use or allow anyone to use the Service: (a) to send or receive any communications which are offensive, abusive, indecent, obscene, or menacing; (b) to cause annoyance, inconvenience, or needless anxiety to anyone; or (c) to violate or infringe the rights of any person.
5.2. You must indemnify ASK4 against all liabilities, costs (including reasonable professional fees), claims, damages, losses, and proceedings arising out of a breach of Clauses 5.1.10 and/or 5.1.11.
6.0 ASK4 EQUIPMENT
6.1. The ASK4 Equipment shall remain the property of ASK4. You agree:
6.1.1. to hold the ASK4 Equipment as ASK4’s fiduciary agent and bailee, separate to Your and any third parties’ property, properly stored, protected and insured, and identified as ASK4’s property;
6.1.2. not to move any ASK4 Equipment if it is located at the Site; and
6.1.3. ASK4 shall have the right to remove the ASK4 Equipment on the occurrence of any of the events listed in Clauses 15.1.3 to 15.1.9.
6.2. Ownership of Purchased Equipment shall pass to You on payment in full of all Charges.
6.3. Risk in and liability for ASK4 or Purchased Equipment shall pass to You on delivery.
6.4. You are responsible for the safekeeping and proper use of the Equipment and You must indemnify ASK4 for any loss or damage to the ASK4 Equipment (including but not limited to lightning or electrical damage).
6.5. You must affect and maintain suitable insurance in respect of relevant risks to the ASK4 Equipment.
6.6. You must immediately notify ASK4 of any loss or damage to the ASK4 Equipment. ASK4 shall have no liability whatsoever for any loss or damage incurred as a direct or indirect result of Your breach of Clauses 6.4 and/or 6.5.
6.7. Subject to Clause 13.1, ASK4 shall have no liability for any loss or damage arising directly or indirectly:
6.7.1. from use of the Equipment, whether or not ASK4 has recommended the use and/or performance of such Equipment;
6.7.2. where any inability to use the Services is due to incompatibility between Customer Equipment and the ASK4 Equipment or Services, or for any breakdown or failure in Customer Equipment; or
6.7.3. from Your failure to comply with Clause 7.2.
7.0 CUSTOMER EQUIPMENT AND DATA
7.1. Unless otherwise agreed in the Order, ASK4 is not responsible for the repair and maintenance of the Equipment.
7.2. Unless otherwise agreed in the Order, You are entirely responsible for:
7.2.1. taking all necessary steps to back up and secure Your information and data;
7.2.2. the security of access to Your computer systems, the integrity of information stored thereon, and its security from corruption, change, and abuse by others;
7.2.3. ensuring that Customer Equipment is programmed, equipped, compatible, and connected for use of the Services in accordance with ASK4’s reasonable instructions and any other instructions or safety and security procedures applicable to the use of Customer Equipment;
7.2.4. for connecting Customer Equipment to Services; and
7.2.5. ensuring that all Customer Equipment is in good working order and complies with applicable standards and approvals and any applicable law. ASK4 may require You to disconnect (in which case You must do so promptly) or may itself disconnect any Customer Equipment if in ASK4’s reasonable opinion: (i) it does not conform to applicable standards and approvals or any applicable law for the time being in force; or (ii) it may cause injury to any person or material damage to property; or (iii) it may materially impair the quality of any of the Services.
8.0 SITE INFRASTRUCTURE
8.1. ASK4 may need to use Site Infrastructure for the provision of the Service.
8.2. You warrant that You have rights to allow ASK4 to use the Site Infrastructure, and the Site Infrastructure meets all applicable standards and any specifications notified to You by ASK4.
9.0 INSTALLATION AND ACCESS
9.1. Prior to the installation of any Equipment and/or Purchased Equipment, You must comply with all reasonable instructions notified to You relating to the preparation of Customer Equipment, Site Infrastructure, and/or the Site. ASK4 shall have no liability for any damage or delay arising from Your failure to carry out such preparations.
9.2. You shall ensure ASK4 has all the necessary rights of access (both physical access and remote access to Your Equipment, computer systems, and network) to provide the Service and to connect or to remove any Equipment.
9.3. You shall provide a safe and suitable working environment for ASK4’s employees, agents, or contractors at the Site and cooperate with any requests from ASK4 to enable ASK4 to comply with applicable health and safety legislation.
10.0 SOFTWARE
10.1. Where ASK4 provides third-party Software, You shall agree to use this solely in accordance with the relevant third party’s end-user licence agreement (as may be updated by the third party from time to time) and the Agreement.
10.2. ASK4 hereby grants You a non-exclusive, revocable licence to use the ASK4 Software solely for the purposes of using the Services. ASK4 does not grant You the right to any enhancement, reversion, or update to the Software unless otherwise agreed in the Order.
10.3. Except to the extent permitted by applicable law, You must not attempt to copy, reverse engineer, decipher, decompile, reduce to human-readable form, or disassemble the Software.
10.4. You may not lease, sublicense, transfer, assign, lend, or otherwise dispose of any ASK4 Software or third party Software.
10.5. Intellectual property rights in the ASK4 Software and third party Software remains the property of ASK4 or its third party licensors.
10.6. Your licence to use the ASK4 Software and third party Software is terminated immediately if You breach this clause.
10.7. ASK4 does not warrant that Your use of the Software will be uninterrupted or that the operation of the Software will be error free, virus free, or secure. You shall have sole responsibility in determining that the Software sufficiently meets Your needs.
10.8. The Services may comprise Software, services, technical information, training materials, or other technical data that are subject to export control regulations. You may not download or otherwise export or re-export, either directly or indirectly, the Software or any underlying information or technology except in full compliance with all applicable laws and regulations.
11.0 CHARGES
11.1. Unless otherwise agreed in the Order, all Charges are subject to Survey.
11.2. Charges shall be invoiced by or on behalf of ASK4 in accordance with the relevant Order and shall be payable by You to ASK4 in accordance with the terms specified on the Order or, where the relevant Order does not specify how Charges shall be invoiced, as set out below:
11.2.1. any Installation Charges and the initial months’ (or other period for which they are due) Recurring Charges shall be invoiced on the date of the acceptance of the relevant Order for the Services by ASK4 pursuant to Clause 2.0;
11.2.2. subsequent Recurring Charges shall be invoiced in advance each month (or at the start of any other period for which they are due); and
11.2.3. all Additional Charges incurred shall normally be invoiced by ASK4 on the subsequent invoice after they are incurred (but You acknowledge that Call Charges and certain types of Additional Charges may take longer to be rated and applied such that Call Charges and other such Additional Charges may be applied to subsequent months’ invoices and any failure to invoice as set out above does not waive ASK4’s right to charge the Call Charges or Additional Charges via a subsequent invoice).
11.3. You shall pay each invoice within 14 days of the date on which it is due in full without any set-off or deduction. Unless specifically agreed otherwise in writing, You must pay all Charges by direct debit.
11.4. ASK4 may, upon giving You at least thirty (30) days’ prior written notice, vary the Recurring Charges and rates agreed for Additional Charges in the Order provided that the percentage increase shall be no greater than an amount equivalent to:
11.4.1. the percentage increase in the Retail Prices Index between:
(a) the Retail Prices Index last published by the Office for National Statistics before either: (i) the date when the immediately preceding increase came into effect pursuant to this Clause 11.4; or (ii) the Service Commencement Date (whichever is later); and
(b) the Retail Prices Index last published by the Office for National Statistics before the issue of a notice of a variation under this clause,
11.4.2. plus two percent (2%),
provided that ASK4 shall not make an increase under this clause within the 12 month period following the Commencement Date or more than once in any 12 month period.
11.5. ASK4 shall be entitled to carry out credit checks on You and if these checks provide evidence that You fail to meet the standard of creditworthiness deemed acceptable by ASK4 (acting reasonably), ASK4 shall be entitled to require You to make advanced payments ahead of those agreed in the Order or make payment of a Security Deposit under Clause 12.0.
11.6. ASK4 may without prejudice to its other rights, charge interest at 4% per annum above the base rate for lending of National Westminster Bank plc on any amount You fail to pay on the due date until the date of actual payment.
11.7. You must reimburse ASK4 all costs and expenses (including legal costs) incurred in the collection of any overdue amounts. Costs and expenses will continue to accrue even if the Agreement is terminated.
11.8. Unless otherwise specified, all sums due to ASK4 under the Agreement are exclusive of Value Added Tax or any other applicable tax which shall be charged to You.
12.0 SECURITY DEPOSIT
12.1. If specified in the Order or as is otherwise required under clause 11.5, You shall provide a security deposit in the amount specified by ASK4 as security for the performance of all Your obligations under the Agreement (the “Security Deposit”). ASK4 shall not be required to provide the Services until in receipt of the Security Deposit.
12.2. ASK4 shall not be required to make payment of any interest to You in respect of the sums held towards the Security Deposit.
12.3. ASK4 shall return the Security Deposit to You on termination of the Agreement provided that You have paid all outstanding amounts due to ASK4. If there are outstanding amounts owing, ASK4 shall be entitled to set off such amounts against the Security Deposit and You shall only be paid the balance of the Security Deposit remaining following such set-off.
13.0 LIMITATIONS OF LIABILITY
13.1. Neither Party excludes nor limits its liability for:
13.1.1. death or personal injury caused by negligence;
13.1.2. fraudulent misrepresentation;
13.1.3. fraudulent acts or omissions of its employees or agents; or
13.1.4. any other losses insofar as any exclusion or limit of liability are void, prohibited, or unenforceable by law.
13.2. Subject to Clause 13.1, unless otherwise expressly provided in the Agreement, neither Party gives any warranty or makes any representations in relation to the Agreement, and all conditions, warranties and representations, whether express or implied by law or otherwise, are hereby excluded.
13.3. Subject to Clause 13.1, ASK4 shall not be liable, whether in contract, tort (including negligence or breach of statutory duty) or otherwise to You for:
13.3.1. any indirect or consequential loss or damage, however caused;
13.3.2. any of the following losses, whether incurred directly, indirectly or as a result of consequential loss or damage, however caused:
a. loss of production;
b. loss or corruption to data;
c. loss of profits;
d. loss of revenue;
e. loss of time;
f. loss of opportunity;
g. loss of goodwill; or
h. loss of anticipated savings,
even if ASK4 has been advised of, or was aware of, the reasonable possibility or foreseeability of such losses.
13.4. Subject to Clause 13.1, ASK4 shall have no liability to You in respect of any system downtime that arises as a result of defects in Your Site Infrastructure, Customer Equipment or breach of the Agreement by any of Your employees, agents or sub-contractors or any network operators.
13.5. Subject to Clause 13.1, in the case of any liability not excluded or limited by Clause 13.2, 13.3 and 13.4, ASK4’s liability for all damage, whether in contract, tort (including negligence or breach of statutory duty), restitution, breach of applicable laws or otherwise, will be limited to the greater of either: (a) £50,000.00; or (b) the value of the Recurring Charges over the Initial Service Period for the Service to which the liability relates, in the aggregate.
13.6. Any claim by You against ASK4 must be made within twelve (12) months of the date of the alleged breach of the Agreement; otherwise, it shall be precluded from being made.
14.0 SUSPENSION
14.1. ASK4 may suspend the Services (or any part of the Services):
14.1.1. in an emergency to provide or safeguard a service provided to an emergency organisation or any other essential services;
14.1.2. to vary the technical specification of the Services or for repair, maintenance, or improvement or to protect life, limb, or property; or
14.1.3. in any circumstance in which ASK4 is entitled to terminate the Agreement.
14.2. Except in an emergency when no such notice is required, ASK4 shall give You as much notice as reasonably practicable if the Services are to be suspended, but You shall have no claim against ASK4 for any suspension of the Services pursuant to this Clause. Any exercise by ASK4 of its right to suspend the Agreement shall not exclude ASK4’s right subsequently to terminate the Agreement.
14.3. If the Services are suspended pursuant to Your default, You must continue to pay Charges during such suspension and shall reimburse ASK4’s costs and expenses reasonably incurred by the implementation of such suspension together with all outstanding amounts due under the Agreement and ASK4’s reasonable charges in relation to such re-commencement.
15.0 TERMINATION
15.1. ASK4 may terminate the Agreement (in whole or in part) immediately on written notice if:
15.1.1. any Survey is not in ASK4’s discretion satisfactorily completed;
15.1.2. any licence, permission, or other approval You or ASK4 require to perform this Agreement expires, is revoked, or otherwise ceases to be valid;
15.1.3. You are unable to pay Your debts within the meaning of section 123 of the Insolvency Act 1986;
15.1.4. You are subject to a company voluntary arrangement under the Insolvency Act 1986;
15.1.5. You convene any meetings of creditors or pass a resolution for winding-up or have a petition for winding-up presented against You;
15.1.6. You have an administrative receiver or receiver appointed over the whole or part of Your assets, or You suffer the appointment of an administrator;
15.1.7. You cease, or threaten to cease, to carry on business;
15.1.8. You take any steps in anticipation of any of the events or procedures described in Clauses 15.1.3 to 15.1.9, including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process;
15.1.9. You are subject to any events or circumstances analogous to those in Clauses 15.1.3 to 15.1.8 in any jurisdiction;
15.1.10. You make a material misstatement in the details You have supplied to ASK4 to enable ASK4 to provide the Service;
15.1.11. You materially breach (including, without limitation, failure to pay any Charges promptly) the Agreement or any other agreement You have with ASK4;
15.1.12. You persistently breach the Agreement or any other agreement You have with ASK4 and such persistent breaches together are seen as a material breach of the Agreement;
15.1.13. ASK4 suspects on reasonable grounds that You may have committed or may be committing: (i) a breach of any applicable law; (ii) any fraud against ASK4 or any third party; and/or (iii) a breach of Clause 5.1.11; or
15.1.14. any contract (or part thereof) between ASK4 and a third-party provider of telecommunications services is terminated where such termination affects the provision of the Service.
15.2. You may terminate the Agreement on thirty (30) days’ written notice:
15.2.1. where ASK4 materially breaches the Agreement and, where it is possible, ASK4 does not remedy the situation within 30 days of the written notice of the breach; or
15.2.2. where ASK4 materially breaches the Agreement and the breach cannot be remedied.
15.3. Subject to 16.1, the Agreement may be terminated by either Party for convenience on giving the other not less than three (3) months of prior written notice.
16.0 CONSEQUENCES OF TERMINATION
16.1. Where the Agreement is terminated, unless You have a right to terminate the Agreement pursuant to Clause 15.2, You shall pay to ASK4 the appropriate Early Termination Charge (and any other disconnection or migration Charges which may be applicable in relation to the terminated Services). The Parties acknowledge that the Early Termination Charge is a genuine pre-estimate of ASK4’s loss and commitments it will have made in respect of internal resourcing and to third-party suppliers in respect of the provision of the Services.
16.2. On termination of the Agreement:
16.2.1. any licence granted to You by ASK4 shall immediately cease;
16.2.2. any of Your data stored on ASK4 Equipment or servers shall be removed and it is Your responsibility to retrieve this data prior to termination; and
16.2.3. You must allow ASK4 promptly to remove any ASK4 Equipment in Your possession. If You delay the prompt removal of the Equipment following termination of the Agreement, ASK4 shall, until such removal is affected, be entitled to continue to charge You and You shall pay such Charges together with any additional costs and expenses caused to ASK4 by such delay.
16.3. The termination of the Agreement howsoever arising is without prejudice to the rights, duties, and liabilities of either Party accrued prior to termination. The Clauses in the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
17.0 DATA PROTECTION
17.1. The Parties each acknowledge and agree that they may need to Process Personal Data relating to each Party’s representatives in their respective capacities as Controllers in common in order to (as appropriate): (a) administer and provide the Services; (b) request and receive the Services; (c) compile, dispatch and manage the payment of invoices relating to the Services; (d) manage the Agreement and resolve any disputes relating to it; (e) respond and/or raise general queries and incidents relating to the Services; (f) comply with their respective regulatory obligations; and (g) where permitted under Privacy and Data Protection Laws, carry out marketing and market research.
17.2. Each Party shall process Personal Data relating to each Party’s representatives for the purposes set out in Clause 17.1 in accordance with their respective privacy policies. The Parties acknowledge that they may be required to share Personal Data with their affiliates and other relevant parties in order to carry out the activities listed in Clause 17.1, and in doing so, each Party will ensure that the sharing and use of this Personal Data complies with applicable Privacy and Data Protection Laws.
17.3. If You notify ASK4 that ASK4 shall be processing Customer Personal Data by providing the Services, ASK4 shall operate as a Processor on Your behalf in respect of this Processing and shall only process the Customer Personal Data in accordance with the Agreement and the ASK4 Business Data Processing Agreement.
18.0 SECURITY
18.1. ASK4 may allocate You Credentials to enable You to use the Service. You must keep such Credentials safe and confidential and notify ASK4 immediately if any third Party becomes aware of them. You must not copy or attempt to copy or share any Credentials. ASK4 reserves the right to change or invalidate the Credentials without notice if it has reason to believe You are in breach of this Clause.
19.0 CONFIDENTIAL INFORMATION
19.1. Each Party undertakes that it shall keep any information that is confidential in nature concerning the other Party and its Group Companies, including any details of its business, affairs, customers, clients, suppliers, plans or strategy (“Confidential Information”) confidential and that it shall not use or disclose the other Party’s Confidential Information to any person, except as permitted by Clause 19.2.
19.2. A Party may:
19.2.1. disclose any Confidential Information to any of its employees, officers, representatives or advisers (“Representatives”) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under the Agreement, provided that such Party ensures that each Representative to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this Clause 19.0 as if it were a Party;
19.2.2. disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
19.2.3. use Confidential Information only to perform any obligations under the Agreement.
20.0 DISPUTE RESOLUTION
20.1. Subject to Clause 29.0, any dispute arising between the parties out of or in connection with the Agreement shall be dealt with in accordance with the provisions of this Clause 20.0.
20.2. The dispute resolution process may be initiated at any time by either Party serving a notice in writing on the other Party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
20.3. The Parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
20.3.1. within fourteen (14) days of service of the notice, the contract or account managers of the Parties shall meet to discuss the dispute and attempt to resolve it; and
20.3.2. if the dispute has not been resolved within fourteen (14) days of the first meeting of the contract or accounts managers, then the matter shall be referred to the representatives of each Party who have authority to settle the controversy and who are at a higher level of management than the contract managers. The escalation contacts shall meet within fourteen (14) days to discuss the dispute and attempt to resolve it.
20.4. If the dispute has not been resolved within fourteen (14) days of the first meeting of the escalation contacts under this Clause 20.0 then the matter may be referred to mediation in accordance with the Centre for Effective Dispute Resolution (CEDR).
20.5. If the dispute is not resolved within sixty (60) days of the commencement of mediation or if any Party refuses at any time to participate in the mediation procedure, then either Party may commence proceedings.
21.0 FORCE MAJEURE
21.1. In this Clause, “Force Majeure” means an event or a sequence of events beyond a Party’s reasonable control preventing or delaying it from performing its obligations under the Agreement, including but not limited to war, civil war (whether declared or undeclared), or armed conflict; invasion and acts of foreign enemies, blockades, and embargoes; civil unrest, commotion, or rebellion; any act or credible threat of terrorism; lightning, earthquake, or extraordinary storm or weather conditions; nuclear, chemical, or biological contamination; explosion, fire, and flooding; fibre breaks; default of ASK4’s suppliers or sub-contractors; or failure of the Internet in part or in whole (where this is as a result of a cause outside of that Party’s reasonable control). The inability to pay is not Force Majeure.
21.2. A Party shall not be liable if delayed or prevented from performing its obligations under the Agreement due to Force Majeure, provided that it:
21.2.1. promptly notifies the other of the Force Majeure event and its expected duration; and
21.2.2. uses reasonable endeavours to minimise the effects of that event. You shall still be required to pay the Charges where the Force Majeure event affects ASK4’s ability to provide the Services.
21.3. If any Force Majeure event materially affects the performance of the Agreement for more than three (3) months, either Party may, acting reasonably, suspend the Services or terminate the Agreement by giving not less than thirty (30) days’ written notice to the other Party, in which case, provided that the Force Majeure has not ceased prior to the expiry of such notice, the Agreement shall terminate or be suspended as applicable.
22.0 ENTIRE AGREEMENT
22.1. The Parties agree that the Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings, and arrangements between them, whether in writing or made orally, in respect of its subject matter.
22.2. Each Party acknowledges that it has not entered into the Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Agreement and the Orders entered into pursuant to it.
22.3. No Party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Agreement.
22.4. Nothing in the Agreement purports to limit or exclude any liability for fraud.
23.0 NOTICES
23.1. Any notice or other communication given by a Party under the Agreement shall:
23.1.1. be in writing and in English;
23.1.2. be signed by, or on behalf of, the Party giving it; and
23.1.3. be sent to the relevant Party at the address set out in the Order.
23.2. Notices may only be given and are deemed received:
23.2.1. by hand: on receipt of a signature at the time of delivery;
23.2.2. by Royal Mail Recorded Signed For post: at 9.00 a.m. on the second Business Day after posting;
23.2.3. by email: on receipt of a read receipt email from the correct address.
23.3. This Clause does not apply to notices given in legal proceedings or arbitration.
24.0 NON-SOLICITATION
Each Party agrees that during the term of the Agreement it shall not, without the other Party’s prior written agreement, directly solicit or offer employment or engagement to any of the other Party’s staff who is at the time of such action or was during a period of twelve (12) months immediately preceding such action directly involved in the carrying out of any obligation under the Agreement.
25.0 VARIATION
25.1. Without prejudice to any other express rights of variation in the Agreement, ASK4 may, on giving You prior notice, change the Agreement at any time.
25.2. ASK4 will give You thirty (30) days prior written notice of the changes happening, except where:
25.2.1. the change is for legal or regulatory reasons and it is not possible to provide such notice; or
25.2.2. the change does not cause You any material detriment,
but prior notice shall still be provided by ASK4 pursuant to Clause 25.1.
25.3. Subject to Clause 25.4, if any change made by ASK4 can be shown to be to Your material detriment, then You may object to the change and You shall be entitled (at ASK4’s discretion) to either: (i) continue to receive the Services on the terms of the Agreement excluding the change; or (ii) terminate the Agreement on forty-five (45) days’ prior written notice to ASK4. If You do not serve a notice to object within the thirty (30) day notice period, You shall be deemed to have accepted the changes and the changes will take effect from the proposed effective date.
25.4. The following changes shall not be seen to cause You any material detriment and as such, You have no right to object to such changes pursuant to Clause 25.3:
25.4.1. changes to comply with any legal or regulatory obligation;
25.4.2. increases to Recurring Charges pursuant to Clause 11.4;
25.4.3. increases to Call Charges where ASK4’s suppliers have increased their corresponding charges;
25.4.4. increases to Additional Charges;
25.4.5. changes to maintain the integrity or security of the Equipment or Service;
25.4.6. changes to improve the clarity, or make corrections to typographical errors;
25.4.7. changes to introduce or provide for the introduction of new or improved service features;
25.4.8. the withdrawal of minor or ancillary service features or components;
25.4.9. changes to the technical specification of the service that has no material impact on the Services’ functionality;
25.4.10. updates to the User Manual; or
25.4.11. changes to processes that have no material impact on the Services’ functionality.
26.0 FURTHER ASSURANCE
You shall, at the request of ASK4 and at Your cost, do all acts and execute all documents which are necessary to give full effect to the Agreement.
27.0 ASSIGNMENT
You may not assign, subcontract, or encumber any right or obligation under the Agreement, in whole or in part, without ASK4’s prior written consent. ASK4 may perform any of its obligations and exercise, or assign any of its rights granted under the Agreement through, or to, any Group Company.
28.0 NO PARTNERSHIP OR AGENCY
The Parties are independent businesses and are not partners, principal and agent or employer and employee, and the Agreement does not establish any joint venture, trust, fiduciary, or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have any authority to make any commitments on the other Party’s behalf.
29.0 EQUITABLE RELIEF
Each Party recognises that any breach or threatened breach of the Agreement may cause the other Party irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the other Party, each Party acknowledges and agrees that the other Party is entitled to the remedies of specific performance, injunction, and other equitable relief without proof of special damages or following the dispute resolution process set out in Clause 20.0.
30.0 SEVERANCE
30.1. If any provision of the Agreement (or part of any provision) is or becomes illegal, invalid, or unenforceable, the legality, validity, and enforceability of any other provision of the Agreement shall not be affected.
30.2. If any provision of the Agreement (or part of any provision) is or becomes illegal, invalid, or unenforceable but would be legal, valid, and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the Parties shall negotiate in good faith in order to agree to the terms of a mutually acceptable alternative provision.
31.0 WAIVER
31.1. Subject to Clause 13.6:
31.1.1. no failure, delay, or omission by either Party in exercising any right, power, or remedy provided by law or under the Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power, or remedy.
31.1.2. no single or partial exercise of any right, power, or remedy provided by law or under the Agreement shall prevent any future exercise of it or the exercise of any other right, power, or remedy.
31.1.3. a waiver of any term, provision, condition, or breach of the Agreement shall only be effective if given in writing and signed by the waiving Party and then only in the instance and for the purpose for which it is given.
32.0 COSTS AND EXPENSES
Each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature, and performance of the Agreement (and any documents referred to in it).
33.0 THIRD-PARTY RIGHTS
33.1. Except as expressly provided for in Clause 33.2, a person who is not a Party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Agreement.
33.2. Any Group Company shall have the right to enforce the provisions of the Agreement.
34.0 GOVERNING LAW AND JURISDICTION
34.1. The Agreement and any dispute or claim arising out of or in connection with it, its subject matter, or its formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
34.2. The Parties irrevocably agree 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 Agreement, its subject matter, or formation (including non-contractual disputes or claims).
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Notice of Update
On 30.10.2020, these General Terms were updated as follows:
- The ability to increase charges in accordance with changes in the Retail Price Index in clause 11.4 has been clarified to make it clearer that such increases will not be made within the first 12 months of an Agreement or more than once in any 12-month period.
- References within the Order to a “Minimum Period”, the “Term”, or the “Contract Term” or similar were clarified as also being references to the “Initial Service Period”.
- References with Orders to “Subsequent Period”, “Subsequent Term”, or similar were clarified as also being references to the Renewal Period.
This is a non-material change pursuant to clause 25.4.6. of these General Terms and applies to Orders entered into on or before the date above from the relevant Order’s Commencement Date.
On 18.08.2021, these General Terms were updated as follows:
- The definition of Privacy and Data Protection Laws was updated to explicitly reference the “UK GDPR”.
This is a non-material change pursuant to clause 25.4.6. of these General Terms and applies to Orders entered into on or before the date above from the relevant Order’s Commencement Date from 1 January 2021 when the UK GDPR came into force.
On 07.02.2023, these General Terms were updated as follows:
- The reference to "Minimum Term" in clause 13.5 was changed to "Initial Service Period"
This is a non-material change pursuant to clause 25.4.6. of these General Terms and applies to Orders entered into on or before the date above.