SAECOM LIMITED – Terms and Condition of Service
- In these Conditions, the following definitions apply:
|Acceptable Use Policy||means a policy which governs the Customer use of the Equipment and Services, as set out by the Network Providers from time to time, including but not limited to call, internet and data usage limits.|
|Additional Terms||means any additional terms relating to the specific Services, notified to the Customer when the Contract comes into existence, or at any other time during the Minimum Term or any Renewal Terms.|
|Assets||means any Customer equipment, software or hardware used by Saecom exclusively for the delivery and supply of the Services to the Customer.|
|Assumed Contracts||means contracts that Saecom identifies as part of the Set-Up Services and that will be subject to the obligations in clause 4.|
|Business Day||means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.|
|Call Charges||means the rates of charges for all land line and mobile calls as issued in writing by Saecom or as set out in the Tariff applied to Contracts in which the Services include line rental and mobile services.|
|Commencement Date||has the meaning set out in clause 2.2.|
|Conditions||means these terms and conditions as amended from time to time in accordance with clause 14.7.|
|Contract||means the contract between Saecom and the Customer for the supply of Equipment and/or Services in accordance with these Conditions.|
|Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures||means as defined in the Data Protection Legislation.|
|Customer||means the person or firm who purchases the Equipment and/or Services from Saecom.|
|Data Charges||means the charges applied to Customers who exceed the data usage allowance. The data allowance and charge per unit of data overused are set out in the Service Specification.|
|Data Protection Legislation||means all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.|
|Deliverables||means the deliverables set out in the Order Form.|
|Delivery Location||has the meaning set out in clause 4.1.|
|Domestic Law||means the law of the United Kingdom or a part of the United Kingdom.|
|Equipment||means the Equipment (or any part of it) as set out in the Order Form.|
|Fees||means the fees payable by the Customer to Saecom for the Equipment and Services, including the Line Rental and any charges for the hire of the Equipment.|
|Force Majeure Event||has the meaning given to it in clause 13.1.|
|Good Industry Practice||means the standards that fall within the upper quartile for the provision of business-critical managed services substantially similar or identical to the Services, having regard to factors such as the nature and size of the parties, the term, the pricing structure and any other relevant factors.|
|Incident||means any incident which (a) may affect the Assets; (b) may affect Saecom’s network and information systems such that it could potentially affect the Customer or the Assets; or (c) is reported to Saecom by the Customer.|
|Intellectual Property Rights||means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, 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.|
|Line Rental||means telephone line rental fees in connection with Services.|
|Minimum Term||means the Contract term stated on the Order Form.|
|Network Provider||means a telecommunications service provider that provides wireless voice and data communication for mobile telephone users.|
|Order Form||means the Customer’s order for the supply of Equipment and/or Services, as set out in the Customer’s purchase order form, including but not limited to network service agreements, minimum term hire agreement, mobile agreements and phone system agreements.|
|Renewal Term||means such other period as stated on the Order Form.|
|Set-Up Services||means the due diligence, configuration and related work to be performed by Saecom to set up the Equipment and Services.|
|Services||means the telecommunication services supplied by Saecom, including but not limited to: Voice Over Internet Protocol (VoIP) services, broadband services, mobile or fixed line telephone and internet communication services, SMS services, wireless internet services and any Deliverables, supplied by Saecom to the Customer as set out in the Service Specification below.|
|Service Specification||means the description or specification for the Services provided in writing by Saecom to the Customer in the Order Form or set out on the Website.|
|Saecom||means the supplier, Saecom Limited registered in England and Wales with company number 09062296.|
|Tariff||means the list of prices for the different Call Charges and Line Rental as set out on the Website from time to time.|
|Website||means Saecom’s website, www.saecom.co.uk as amended from time to time.|
- In these Conditions, the following rules apply:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- A reference to a party includes its personal representatives, successors or permitted assigns;
- A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- A reference to writing or written includes e-mails.
- Basis of contract
- The Customer’s offer to purchase Equipment and/or Service in accordance with these Conditions shall only be deemed to be accepted when an Order Form has been issued by Saecom and a signed copy is returned to Saecom at which point and on which date the Contract shall come into existence (Commencement Date).
- The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Saecom which is not set out in the Contract.
- Any samples, drawings, descriptive matter or advertising issued by Saecom and any descriptions of the Equipment or illustrations or descriptions of the Services contained in Saecom’s catalogues, brochures, or Website, are issued or published for the sole purpose of giving an approximate idea of the Services and/or Equipment described in them. They shall not form part of the Contract or have any contractual force.
- These Conditions apply to the Contract, together with any Additional Terms as notified to the Customer, to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- Any quotation given by Saecom shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
- All of these Conditions shall apply to the supply of both Equipment and Services except where application to one or the other is specified.
- In the event that there is any conflict between the terms of these Conditions and the Additional Terms, the Additional Terms shall prevail.
- The Equipment is as described on the Quotation.
- Saecom reserves the right to amend the specification of the Equipment if required by any applicable statutory or regulatory requirements without any prior notice.
- The Customer shall be responsible for the safe-keeping and proper use of the Equipment after installation, in accordance with any instructions given by Saecom.
- Delivery, Set-up and Installation of Equipment
- Saecom shall ensure that each delivery of the Equipment is accompanied by a delivery note which shows the date of the Order Form, all relevant Customer and Saecom reference numbers, the type and quantity of the Equipment (including the code number of the Equipment, where applicable), special storage instructions (if any) and, if the order is being delivered by instalments, the outstanding balance of Equipment remaining to be delivered. Saecom shall deliver the Equipment to the location set out in the Order Form or such other location as the parties may agree (Delivery Location) at any time after Saecom notifies the Customer that the Equipment are ready.
- Delivery of the Equipment shall be completed on the Equipment’s arrival at the Delivery Location.
- Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. Saecom shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer’s failure to provide Saecom with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
- If Saecom fails to deliver the Equipment, its liability shall be limited to a full refund of the price paid by the Customer for the undelivered Equipment plus any delivery costs paid by the Customer. Saecom shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Saecom with adequate delivery instructions for the Equipment or any relevant instruction related to the supply of the Equipment.
- If the Customer fails to take delivery of the Equipment within 5 Business Days of Saecom notifying the Customer that the Equipment is ready, then except where such failure or delay is caused by a Force Majeure Event or by Saecom’s failure to comply with its obligations under the Contract in respect of the Equipment:
- delivery of the Equipment shall be deemed to have been completed at 9.00 am on the fifth Business Day following the day on which Saecom notified the Customer that the Equipment was ready; and
- Saecom shall store the Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
- If 5 Business Days after Saecom notified the Customer that the Equipment were ready for delivery the Customer has not accepted delivery of them, Saecom reserves its rights to apply a cancellation charge equivalent to the retail cost of the Equipment.
- Saecom may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- Saecom shall perform the Set-up Services in accordance with the timetable set out in the Order Form. Saecom shall use reasonable endeavours to meet the performance dates set out in the Order Form but any such dates shall be estimates only, and time shall not be of the essence.
- When Saecom considers that the Equipment and Services are ready for activation it shall so notify the Customer. Within 5 Business Days of such notification the Customer shall review the operation of the Equipment and Services to confirm that they function in material conformance with the Services Specification. If the Services fail in any material respect to conform with the Services Specification, the Customer shall give Saecom a detailed description of any such non-conformance (Error) in writing, within the 5 Business Day review period.
- Saecom shall use reasonable endeavours to correct any Error within a reasonable time and, on completion, re-submit the Services to the Customer. The provisions of clause 4.9 and this clause 4.10 shall then apply again, up to three additional times. If Saecom is unable to correct the Error after three attempts, either party may terminate the Contract, or such portion of the Contract that the Error relates to, with immediate effect by giving written notice to the other party, without further liability to the other.
- If the Services are found to conform with the Services Specification or if the Customer does not provide any written comments within the 5 Business Day review period described in clause 4.9, the Services shall be deemed accepted as from the date of the notification or expiry of the 5 Business Day review period (in each case the Acceptance Date).
- With effect from the Acceptance Date the Customer shall:
(i) transfer the Assets to Saecom in accordance with the Order Form; and
(ii) subject to clause 4.13, transfer the benefit of the Assumed Contracts to Saecom provided, in each such case, that Saecom hereby accepts and undertakes the related burden.
4.13 The Customer shall use reasonable endeavours to assign, novate or transfer each of the Assumed Contracts to Saecom with effect from the Acceptance Date. If any consent of any third party is required for the assignment, novation or transfer of an Assumed Contract and has not been obtained at, or before, the Acceptance Date, the Customer and Saecom shall each use all reasonable endeavours to obtain that consent as soon as possible after the Acceptance Date. Unless or until any Assumed Contract is assigned, novated or transferred, or any necessary consent is obtained, the parties shall work together, in good faith, to agree an alternative solution which may include Saecom finding an alternative source of supply and/or the Customer holding the benefit of the relevant Assumed Contract as agent for Saecom.
- Quality of Equipment
- Unless agreed otherwise in writing between the parties by entering into a separate agreement providing extended warranty, labour cover and service levels (Maintenance Agreement), Saecom warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Equipment shall:
- be free from material defects in design, material and workmanship; and
- be of satisfactory quality (within the meaning of the Sale of Equipment Act 1979).
- Subject to clause 5.5, if:
- the Customer, at its earliest convenience and no later than one week from the date of discovery of any fault, gives notice in writing during the warranty period that some or all of the Equipment do not comply with the warranty set out in clause 5.1;
- the Customer does not use, tamper with, alter, or attempt to undertake its own repairs to the Equipment;
- Saecom is permitted to make a full examination of the alleged defect; and
- the Customer (if asked to do so by Saecom) returns such Equipment to Saecom’s place of business at the Customer’s cost,
- Unless agreed otherwise in writing between the parties by entering into a separate agreement providing extended warranty, labour cover and service levels (Maintenance Agreement), Saecom warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Equipment shall:
Saecom shall, at its option, liaise with the manufacturer on the Customer’s behalf, and arrange for the manufacturer to inspect the Equipment, or repair or replace the defective Equipment.
- Saecom may be required at the Customer’s expense, to attend the Customer’s premises to provide Services or disconnect and remove the Equipment, before examining the Equipment pursuant of clause 5.2 and Saecom reserves its rights to charge the Customer its standard hourly rates at the time.
- Saecom accepts no responsibility for the manufacturer’s assessment of the Equipment and in circumstances where the manufacturer concludes that the Equipment do not come within the scope of the warranty, the manufacturer’s decision is final.
- Saecom shall not be liable for the Equipment’s failure to comply with the warranty in clause 5.1 if:
- the Customer makes any further use of such Equipment after giving a notice in accordance with clause 5.2;
- the defect arises because the Customer failed to follow Saecom’s or manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;
- the Customer alters or repairs such Equipment without the written consent of Saecom; or
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
- Where an engineer attends the Customer’s premises in response to the Customer’s notice pursuant to clause 5.2(i), and identifies that the Equipment is in good working order and/or that the fault lies with the Customer’s equipment, Saecom shall apply a charge in accordance with the its standard hourly rates at the time.
- Where the use of the Equipment is essential for the Customer’s day to day activities, Saecom may replace faulty Equipment before conducting an in depth examination. If upon subsequent examination Saecom concludes that, in accordance with clause 5.5, Saecom is not liable for the Equipment failure to comply with the warranty, the Customer will be charged for the replacement of Equipment, and time and costs incurred for labour and investigation.
- Except as provided in this clause 5, Saecom shall have no liability to the Customer in respect of the Equipment’ failure to comply with the warranty set out in clause 5.1.
- The terms of these Conditions shall apply to any repaired or replacement Equipment supplied by Saecom under clause 5.2.
- For the avoidance of doubt, where the warranty period as set out in clause 5.1 expires, the Customer shall at its own option, either extend the term of the Maintenance Agreement, or replace the Equipment at its own expense as necessary.
- Title, risk and insurance
- The risk in the Equipment shall pass to the Customer on completion of delivery. For the avoidance of doubt, where Equipment are delivered in instalments, risk in the Equipment in each instalment shall pass upon completion of each instalment delivery.
- Title to the Equipment shall not pass to the Customer until Saecom receives payment in full (in cash or cleared funds) for the Equipment and any other Equipment that Saecom has supplied to the Customer in respect of which payment has become due, in which case title to the Equipment shall pass at the time of payment of all such sums.
- Where Equipment is being hired by the Customer, title in the Equipment shall at all times remain with Saecom and the Customer shall have no right, title or interest in or to the Equipment.
- Where Equipment is being hired by the Customer, during the Minimum Term and any Renewal Terms, the Customer must, at its own expense, obtain and maintain the following insurances from the date of delivery:
(i) insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as Saecom may from time to time nominate in writing;
(ii) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as Saecom may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
(iii) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as Saecom may from time to time consider reasonably necessary and advise to the Customer.
- Until title to the Equipment has passed to the Customer, the Customer shall:
- store the Equipment separately from all other Equipment held by the Customer so that they remain readily identifiable as Saecom’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
- maintain the Equipment in satisfactory condition;
- notify Saecom immediately if it becomes subject to any of the events listed in clause 12.4.2 to clause 12.4.11; and
- give Saecom such information relating to the Equipment as Saecom may require from time to time.
- If before title to the Equipment passes to the Customer the Customer becomes subject to any of the events listed in clause 12.4.2 to clause 12.4.11, then, without limiting any other right or remedy Saecom may have:
- the Customer’s right to use Equipment in the ordinary course of its business ceases immediately; and
- Saecom may at any time (a) require the Customer to deliver up all Equipment in its possession; and (b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment are stored in order to recover them.
- Supply of Services and Security
- Saecom shall provide the Services to the Customer in accordance with the Service Specification in all material respects and from the Acceptance Date until expiry or termination of the Contract for any reason.
- Saecom shall use all reasonable endeavours to meet any performance dates for the Services specified in Saecom’s written acceptance of an Order Form, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- Where broadband is provided as part of the Services, the Customer acknowledges that in relation to any broadband speeds set out in the Service Specification are approximate speeds only and shall be dependent on reasons outside the control of Seacom including but not limited to the Customer’s geographical proximity to the local exchange and the quality of the infrastructure serving the Customer’s premises, and Saecom shall not be liable for any failure of the Services to perform at such speeds.
- Saecom shall have the right to make any changes to the Services, its network, system configurations or routing configuration or modify or replace any hardware or software in its network or in equipment used to deliver any Service over its network which are necessary to comply with any applicable law or regulatory requirement, or which do not materially affect the nature or quality of the Services, and Saecom shall notify the Customer in any such event on no less than 30 days written notice.
- Saecom shall ensure at all times that appropriate safety and security systems, policies and procedures are maintained and enforced to prevent unauthorised access or damage to, and to ensure the business continuity of, any and all Services and related networks or resources, in accordance with Good Industry Practice, including an incident management process which shall enable Saecom, as a minimum, to discover and assess Incidents, and to prioritise those Incidents, sufficient to meet its reporting obligations under clause 7.8.
- Saecom shall ensure that its system is designed, maintained and upgraded at all times so as to mitigate against Incidents. The parties agree that if Incidents are detected or discovered, each of them shall co-operate with the other to mitigate the Incident and the parties shall assist each other to mitigate any losses and restore the Services to their original operating and security efficiency. The costs of complying with this clause 7.6 shall be apportioned between the parties on a pro rata basis according to fault.
- The Customer shall promptly inform Saecom if it suspects or uncovers any Incident and, subject to the cost allocations in clause 7.6, shall use all commercially reasonable endeavours to promptly mitigate such Incident.
- Saecom shall:
(i) notify the Customer promptly if it becomes aware of any Incident and respond without delay to all queries and requests for information from the Customer about any Incident, whether discovered by Saecom or the Customer, in particular bearing in mind the extent of any reporting obligations the Customer may have under the Network and Information Systems Regulations 2018 (NIS Regulations) and Data Protection Legislation and that the Customer may be required to comply with statutory or other regulatory timescales;
(ii) promptly cooperate with any request for information made in respect of: (a) any Incident; (b) any of the policies referred to in clause 7.5; and (c) any requests for information, or inspection, made by a regulator with competent jurisdiction over the Customer (including in connection with the NIS Regulations or Data Protection Legislation, if applicable).
- Customer’s obligations
- The Customer shall:
- ensure that the terms of the Order Form are complete and accurate;
- co-operate with Saecom in all matters relating to the Services;
- be liable for any disconnection costs levied by a previous supplier For the avoidance of doubt, Saecom shall not be liable for any termination, disconnection or transfer fees, unpaid fees, or any costs whatsoever that have been levied on the Customer by a third party;
- provide Saecom, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Saecom to provide the Services;
- provide Saecom with such information and materials as Saecom may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
- prepare the Customer’s premises for the supply of the Services;
- abide by the terms of any Acceptable Use Policies relating to specific Services, which are published on the Website from time to time;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- keep and maintain all materials, equipment, tools, cabling, documents and other property of Saecom (Saecom Materials) at the Customer’s premises in safe custody at its own risk, maintain Saecom Materials in good condition until returned to Saecom, and not dispose of or use Saecom Materials other than in accordance with Saecom’s written instructions or authorisation;
- not store, distribute or transmit through the Equipment or Services any material that (a) is unlawful, harmful, threatening defamatory, obscene, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; and/or promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion, belief or gender reassignment, or any other illegal activity;
- remain responsible for the use of the Equipment and Services under its control, including any use by third parties (whether fraudulent or invited by the Customer); and
- not provide the Services directly or indirectly to third parties.
- If Saecom’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- Saecom shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays Saecom’s performance of any of its obligations; or
- Saecom shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Saecom’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
- the Customer shall reimburse Saecom on written demand for any costs or losses sustained or incurred by Saecom arising directly or indirectly from the Customer Default.
- Where the Customer is hiring the Equipment from Saecom, the Customer must enter into a Maintenance Agreement with Saecom throughout the term of the Contract.
- Where the Customer relocates its office premises during the term of the Contract, it shall be responsible for all costs for transferring the Equipment and the provision of Services to the new location.
- When disposing of Equipment purchased from Saecom, the Customer shall do so in accordance with by the Waste Electrical and Electronic Equipment Directive, and any other relevant legislation in effect and as amended from time to time.
- The Customer shall:
- Charges and Payment
- The price for Equipment shall be the price set out in the Order Form. The price of the Equipment is exclusive of all costs and charges of packaging, insurance, transport of the Equipment, which shall be paid by the Customer when it pays for the Equipment.
- The charges for Services shall be on a time and materials basis:
- the charges shall be calculated in accordance with Saecom’s standard hourly or daily fee rates, as set out on Saecom’s written acknowledgment on the Order Form;
- Saecom’s standard daily fee rates for each individual person are calculated on the basis of a 9.00 am to 5.30 pm day worked on Business Days unless otherwise agreed in writing between the parties; and
- Saecom shall be entitled to charge an overtime rate for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2.2, and the overtime rate shall be agreed in writing between the parties;
- Additional Call Charges shall be calculated in accordance with Saecom’s Calls Tariff.
- additional Data Charges may be applied where the Customer’s data usage exceeds the allowance specified or the Acceptable Use Policy; and
- Saecom shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Saecom engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Saecom for the performance of the Services, and for the cost of any materials.
- Where the Services purchased by the Customer take advantage of any promotion offered in writing by Saecom, any such promotions will be subject to the limitations set out in the Acceptable Use Policy.
- Saecom reserves the right to:
- increase the Fees from time to time. Any changes in Fees shall be outlined. Saecom will give the Customer written notice of any material increase to the charges for the Services 30 days before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Saecom in writing within 30 days of the date of Saecom’s notice and the parties shall negotiate a resolution in good faith. If the parties fail to resolve the matter within 30 days of the date of the Customer’s notice of non-acceptance, the Customer shall have the right without limiting its other rights or remedies to terminate the Contract by giving 30 days written notice to Saecom;
- increase the price of the Equipment, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to Saecom that is due to: (a) any factor beyond the control of Saecom (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the specification of the Equipment; or (c) any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give Saecom adequate or accurate information or instructions in respect of the Equipment.
- In respect of Equipment, Saecom shall invoice the Customer on or at any time after completion of delivery. In respect of Services, Saecom shall invoice the Customer monthly in advance, and Saecom shall invoice the Customer for all accrued Call Charges monthly in arrears.
- The Customer shall pay each invoice submitted by Saecom as set out in the Order Form:
- either monthly in arrears by direct debit;
- or unless agreed otherwise in writing between the parties, within 14 days of the date of the invoice; and
- in full and in cleared funds to a bank account nominated in writing by Saecom; and
- time for payment shall be of the essence of the Contract.
- All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Saecom to the Customer, the Customer shall, on receipt of a valid VAT invoice from Saecom, pay to Saecom such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.
- If the Customer fails to make any payment due to Saecom under the Contract by the due date for payment, then the Customer shall be required to pay a late payment charge per overdue invoice, and shall pay interest on the overdue amount at the rate of 8% per annum above Bank Of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Saecom may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Saecom to the Customer.
- In the event of suspension of the provision of Equipment and Services by Saecom in accordance with clause 12.6, the Customer shall be required to pay a suspension fee for each month the provision of Equipment and Services is suspended (as set out on the Website).
- Saecom reserves its rights to charge the Customer the following charges:
- non-direct debit fee payable each month by Customers who do not establish direct debit payments; and
- failed direct debit fee applied to each failed direct debit payment.
- The Customer may incur charges from third parties in connection with the supply of the Services. The Customer shall be required to pay such charges in full and in accordance with the terms and conditions applied by that third party and as notified by Saecom from time to time, and must not withhold any fees, payments or charges. Where the Customer disputes any amount or payment owed to a third party, Saecom shall dispute charges on behalf of the Customer where sufficient information is provided to justify the dispute, however, third party decisions are final.
- A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 10 shall survive termination of the Contract.
- Data Protection
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
- The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Saecom is the Processor.
- Without prejudice to the generality of clause 11.1UPDATE FC, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Saecom for the duration and purposes of the Contract.
- Without prejudice to the generality of clause 11.1UPDATE FC, Saecom shall, in relation to any Personal Data processed in connection with the performance by Saecom of its obligations under the Contract:
(i) process that Personal Data only on the written instructions of the Customer unless Saecom is required by the Domestic Laws to otherwise process Personal Data. Where Saecom is relying on Domestic Law as the basis for processing Personal Data, Saecom shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Saecom from so notifying the Customer;
(ii) ensure that it has in place appropriate technical and organisational measures, 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);
(iii) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled: (a) the Customer or Saecom has provided appropriate safeguards in relation to the transfer; (b) the Data Subject has enforceable rights and effective legal remedies; (c) Saecom complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and (d) Saecom complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(iv) 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;
(v) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(vi) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Domestic Law to store the Personal Data; and
(vii) maintain complete and accurate records and information to demonstrate its compliance with this clause 11, and allow for audits by the Customer or the Customer’s designated auditor.
- The Customer consents to Saecom appointing such other services providers that may be appointed from time to time as is necessary for performance of this Contract, as third-party processors of Personal Data under this Contract and to such platform provider appointing wireless internet service providers who are part of the partner networks as additional sub-processors. Saecom confirms that it has entered into with the third-party processors into a written agreement incorporating terms which are substantially similar to those set out in this clause 11UPDATE FC. As between the Customer and Saecom, Saecom shall remain fully liable for all acts or omissions of Saecom or any third-party processor appointed by it pursuant to this clause 11.
- Either party may, at any time on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12 Limitation of Liability
- Nothing in these Conditions shall limit or exclude Saecom’s liability for:
(i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(ii) fraud or f. audulent misrepresentation;
(iii) breach of the terms implied by section 2 of the Supply of Equipment and Services Act 1982 (title and quiet possession);
(iv) breach of the terms implied by section 12 of the Sale of Equipment Act 1979 (title and quiet possession);
(v) defective products under the Consumer Protection Act 1987.
- Subject to clause 12.1:
(i) Saecom shall not be liable to the Customer, whether in contract, tort (including negligence), for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or, information hosting services, network downtime, loss arising from fraud committed by a third party, loss of damage to goodwill, and any indirect or consequential loss.
(ii) Saecom’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £20,000 for any one incident or £50,000 for any series of incidents arising from a common cause, or a sum equal to the charges paid by the Customer in the 6 month period prior to the claim arising, whichever is the lesser amount.
- The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 and the terms implied by sections 3 to 5 of the Supply of Equipment and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- This clause 12 shall survive termination of the Contract.
13. Term and Termination
- The Contract shall commence on the Commencement Date and shall continue for the Minimum Term, and unless otherwise earlier terminated in accordance with this clause 13, shall automatically renew for subsequent periods equal to the Renewal Term.
- Subject to clause 13.3, without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 90 days written notice before the expiry of the Minimum Term. For the avoidance of doubt, if notice is received less than 90 days before the last day of the Minimum Term, the contract will automatically renew for the Renewal Term and shall terminate at the end of the Renewal Term.
- If the Customer enters into the Contract as an individual consumer, or is a business with less than 10 employees, the Customer shall be entitled to terminate the Contract at any time after the Minimum Term upon 90 days written notice to Saecom.
- Any termination or suspension of the Contract by the Customer before the expiry of the Minimum Term or the delivery of Equipment, as applicable, will be subject to the following cancellation charges equal to:
(i) 100% of the charges for Services multiplied by the number of remaining months of the Minimum Term; and
(ii) 100% of the average monthly Call Charges for the three month period prior to termination, multiplied by the number of remaining months of the Minimum Term; or
(iii) 50% of the value of the Equipment ordered, and/or yet to be installed.
- If the Customer terminates the Contract mid-month, then the Contract will not end until the end of that month and the Customer will be charged for the remainder of the month.
- Notwithstanding clause 13.1, where a Customer terminates a Contract before the expiry of the Minimum Term, or where Saecom terminates the Contract in accordance with clause 13.6, or suspends the Services in accordance with clause 13.8, if the Services provided under the Contract include mobile telephone services by a Network Provider, the Customer shall be liable for any cancellation charges or exit fees levied by the Network Provider.
- Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(i) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
(ii) 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(iii) 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 (where a company) 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;
(iv) 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 the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(v) 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 its assets and such attachment or process is not discharged within 14 days;
(vi) 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 (being a company);
(vii) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(viii) 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;
(ix) 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 clause 13.6(i) to clause 13.6(viii) (inclusive);
(x) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(xi) the Customer’s financial position deteriorates to such an extent that in Saecom’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- Without limiting its other rights or remedies, Saecom may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
- Without limiting its other rights or remedies, Saecom may suspend the supply of Services or all further deliveries of Equipment under the Contract or any other contract between the Customer and Saecom if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.4.2 to clause 13.4.11, or Saecom reasonably believes that the Customer is about to become subject to any of them.
- On termination of the Contract for any reason:
(i) the Customer shall immediately pay to Saecom all of Saecom’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Saecom shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(ii) the Customer shall return all of Saecom Materials, Equipment and any Deliverables which have not been fully paid for. If the Customer fails to do so within 30 days of termination, then Saecom may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(iii) the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
(iv) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14. Force majeure
- For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Saecom including but not limited to epidemics and pandemics (including the Covid-19 pandemic, regardless if it is in circulation and therefore foreseeable at the time the Contract comes into existence), strikes, lock-outs or other industrial disputes (whether involving the workforce of Saecom 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 suppliers or subcontractors.
- Saecom shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- If the Force Majeure Event prevents Saecom from providing any of the Services and/or Equipment for more than four weeks, Saecom shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
- Assignment and other dealings.
(i) Saecom may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(ii) The Customer shall not, without the prior written consent of Saecom, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(i) Any notice or other communication given to a party under or in connection with this Contract shall be made verbally, or in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or e-mail.
(ii) A notice or other communication shall be deemed to have been received whether made verbally or writing, upon acknowledgement by Saecom.
(iii) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(i) 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 clause shall not affect the validity and enforceability of the rest of the Contract.
(ii) If one party gives notice to the other of the possibility that any provision or part-provision of this 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.
- A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.
- No Partnership or Agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
- Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
- Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing by the parties.
- Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
- 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 this Contract or its subject matter or formation (including non-contractual disputes or claims).