General Terms and Conditions
GENERAL
(A) These terms & conditions (as amended from time to time in accordance with Clause 16) ("Conditions") shall apply to all Order Forms (as defined below) entered into between the parties.
(B) Each Croft Communications Order Form (including all schedules, appendices and other documents referenced therein, and as varied by any applicable Variation Letters entered into by the parties from time to time) incorporating these Conditions (“Order Form”) forms, together with these Conditions, a separate contract (“Contract”, as defined below) between the parties for the provision of the goods and services set out in that Order Form.
(C) Croft shall be under no obligation to provide, and the Customer shall not be required to purchase, any goods or services unless and until an Order Form for those goods and / or services has been signed by the authorised representatives of the parties. In the event of any conflict or inconsistency between these Conditions and an Order Form, the terms of the Order Form shall prevail.
(D) The Customer shall ensure that only a director (or otherwise specific duly authorised persons) shall sign the Order Form(s) on behalf of the Customer.
1. DEFINITIONS
1.1 In these Conditions the following words and expressions shall have the following meanings:
"Act" means the telecommunications act 1984 and any amendments, modifications, re-enactments or replacements of the same that may be made from time to time;
“Additional Charges” means any additional Charges paid or payable by the Customer in return for any Additional Solutions, as set out in a relevant Variation Letter;
“Additional Solutions” means any additional Solutions purchased by the Customer from time to time, pursuant to a Variation Letter;
"Applicable Law" means the laws of England and Wales and the European Union and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the provision of the Solution, including the Act;
"Carrier" means a licensed public switched telecommunications network provider;
"Charges" means the fees payable by the Customer as specified in the applicable Order Form (together with any Additional Charges paid or payable from time to time) and these Conditions;
“Contract” means the contract comprised of an Order Form (including all schedules, appendices and other documents referenced therein) and these Conditions;
"Contract Commencement Date" means the 'Contract Commencement Date' specified in the Order Form;
“Controller”, “Personal Data”, and “Processed” have the meanings set out in the Data Protection Legislation;
"Croft" means Grantcroft Limited (company no. 12288133), registered address: Ground Floor, Unit E1 The Chase, John Tate Road, Hertford, Hertfordshire, United Kingdom, SG13 7NN;
"Croft Equipment" means any equipment, including tools cabling or facilities (other than the Leased Products), provided by Croft or any Third Party Provider to the Customer and used directly or indirectly as part of the Solution including any such items specified in the Order Form;
“Croft Materials” means any data, materials, documentation, and / or software (including Software Products) which is: (a) created by, or on behalf of, Croft or any Third Party Provider; and / or (b) owned by Croft (or its third party licensors, including any Third Party Provider);
"Customer" means the person or firm who purchases the Solution from Croft, as specified in the Order Form;
“Customer Environment” means the Customer’s hardware, software, systems and telecommunications / network environment which are not provided by Croft;
“Customer Materials” means any data, documents, information and other materials in any form the Customer and / or anyone acting on its behalf provide to Croft and / or any Third Party Provider. The Customer Materials excludes the Croft Materials;
“Data Protection Legislation” means all applicable data protection and privacy laws and regulations guidance and codes of practice issued from time to time, which relate to the protection of personal data including, without limitation: (i) the UK GDPR; (ii) the Data Protection Act 2018; (iii) the Data Protection (Charges and Information) Regulations 2018;(iv) the Privacy and Electronic Communications (EC Directive) Regulations 2003; (v) any other legislation in force in the UK from time to time in respect of data protection and privacy guidance and codes of practice issued from time to time by the Data Protection Regulator, in each case as amended, updated or re-enacted from time to time; and (vi) guidance and codes of practice issued by the European Data Protection Board or the Article 29 Working Party prior to 1 Jan 2021;
"Delivery" means the transfer of physical possession of the Purchased Products, Leased Products and / or Croft Equipment to the Customer at the Delivery Address;
"Delivery Address" has the meaning given in Clause 5.1;
"Early Termination Payment" means the Charges which would have otherwise been payable by the Customer from the Contract Commencement Date up until the expiry of the Primary Period;
"Force Majeure Event" has the meaning given in Clause 18.4;
"Hosting Provider" has the meaning given in Clause 2.6;
"Hosting Services" means making available Croft Materials as hosted services over the Internet;
"Initial Term" has the meaning given in Clause 12.4;
"Installation Services" means the installation services to be provided by Croft in respect of any element(s) of the Solution as specified in the Order Form;
“Intellectual Property Rights” means copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals, and whether existing now or in the future;
"IT Support Services" means support in relation to the use of, or the identification and resolution of errors in, the Supported System, but shall not include the provision of training services, as specified in the Order Form;
"IT Support Service Levels" means the service levels for provision of IT Support Services, as specified in the Order Form;
"Leased Products" means the products to be hired by the Customer in accordance with Clause 4, as specified in the Order Form;
"Line" means a connection to the BT or Carrier network;
"Primary Period" has the meaning given in Clause 12.3(a);
“Professional Services” means additional professional services (excluding the Support and the Installation Services) including consultancy, support, configuration, and training as may be agreed in the Order Form (if any);
“Purchased Products” means the products and / or equipment specified in the Order Form to be purchased by the Customer pursuant to Clause 3 (excluding any and all Croft Equipment);
“Relevant Term” has the meaning in Clause 12.1;
"Renewal Term" has the meaning given in Clause 12.4;
“Services” means the services specified in the applicable Order Form which may include (as applicable) Installation Services, Support, Professional Services, Hosting Services and IT Support Services;
“SLA” means relevant service level agreement (if any) set out or referred to in the Order Form relating to the Services;
"Software Products" means software products licensed or sub-licensed by Croft to the Customer as set out in the Order Form and provided subject to the applicable Third Party Terms;
“Solution” means the combined goods and services offering provided under the Order Form, comprised of any Services, Purchased Products, Leased Products, Croft Materials and / or Croft Equipment specified in the Order Form, along with any Additional Solutions purchased from time to time;
“Support” means Croft's standard support service in relation to a Solution other than IT Support Services, from time to time as more particularly described in the Order Form;
"Supported System" means the parts of the Customer Environment and/or Solution which are subject to IT Support Services, as specified in the Order Form;
“Third Party Provider” means a third party provider, providing an element of the Solution, or by Customer in its Customer Environment, which may include BT Group plc (or any of its affiliates) and applicable Carriers from time to time;
“Third Party Terms” means the third party terms applicable to the Solution, as may be: (a) set out in the Order Form; (b) directly accepted and / or entered into by or on behalf of the Customer; and / or (c) end user licence agreements or other third party terms (which Croft can make available to the Customer on request, or which are otherwise made available with Purchased Products, Leased Products, Croft Equipment, Croft Materials or otherwise);
"UK GDPR" means EU Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as incorporated into domestic United Kingdom law by the European Union (Withdrawal Agreement) Act 2020 and amended by The Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2020;
"User Limit" means the maximum number of users who may access a particular Software Product at any one time, as set out in the Order Form, as may be increased from time to time in accordance with Clause 10.3.
“Variation Letter” has the meaning given to it in Clause 16.2;
“Working Day” means any day other than a Saturday, Sunday or public holiday in England.
1.2 Interpretation. Unless the context requires otherwise: (a) words in the singular shall include the plural and vice versa; (b) references to: (i) specific laws shall be to such laws as amended or replaced from time to time; (ii) the term ‘include’ and similar expressions shall be construed as having the words ‘without limitation’ after it; and (c) writing or written includes email.
1.3 PO Terms. This Contract is the entire agreement between the parties, and no terms in any Customer purchase order (or similar document issued by the Customer), whether issued before, on or after the date of the Contract will be binding on the parties unless part of a separate agreement signed by the authorised representatives of the parties.
1.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5 A reference to writing or written includes email but not fax.
2. SERVICES
2.1 For the Relevant Term, Croft shall: (a) supply the Services with reasonable skill and care; and (b) use reasonable endeavours to supply the Services in accordance with the applicable SLAs
2.2 Without prejudice to Clause 7.8, Croft shall not be liable to the Customer for any delays in or failure to provide the Services (including any SLA) where the delay or failure is attributable to any of:
a) an act or omission of the Customer or any Third Party Provider;
b) a Force Majeure Event, or
c) Any other event that is agreed with the Customer to be beyond the Croft's control,
and in any and each such case time for performance by Croft will be extended accordingly
2.3 The Customer acknowledges and agrees that: (a) the obligations set out in Clause 2.1 shall be subject to Clauses 5.3 and 15.5; and (b) Croft does not warrant that the Services (and the Solution as may be implemented, configured, and/or modified by such Services) will be fit for purpose, appropriate for the Customer’s business or intended use of the Solution, and Croft does not provide any warranties as to the accuracy of the information that it, or the Third Party Providers, supply.
2.4 Croft shall use all reasonable endeavours to meet any performance dates (including in respect of Delivery and installation) specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence in respect of the same.
2.5 In the event that as part of the Solution Croft allocates any telephone numbers to the Customer, the Customer acknowledges and agrees that Croft shall be entitled to withdraw or change any such number or code or group of numbers upon giving reasonable written notice to the Customer.
2.6 In order to provide the Hosting Services, Croft shall use reputable third party hosting providers (the “Hosting Provider”). To the extent there is a failure in the hosting services and the Customer suffers any losses, Croft shall use all reasonable endeavours to recover such losses from the Hosting Provider, and Croft's liability for all such losses shall be limited to the amount it is able to recover from the Hosting Provider and apportion in respect of the Customer’s losses.
3. PURCHASED PRODUCTS
3.1 Croft shall supply and the Customer shall purchase such Purchased Products as may be specified under the Order Form in accordance with the terms and conditions of the Contract.
3.2 The risk of loss, theft, damage or destruction in the Purchased Products shall pass to the Customer on Delivery. Title to the Purchased Products shall not pass to the Customer until Croft receives payment in full (in cleared funds) for the Purchased Products and all other sums that are due to Croft from the Customer for sales of Purchased Products
3.3 Until title to the Purchased Products has passed to the Customer, the Customer shall:
a) store the Purchased Products separately from all other goods held by the Customer so that they remain readily identifiable as Croft’s (or the relevant Third Party Provider’s) property;
b) not remove, deface or obscure any identifying mark or packaging on or relating to the Purchased Products;
c) maintain the Purchased Products in satisfactory condition and keep it insured on Croft’s behalf for their full price against all risks with a reputable insurer. The Customer shall obtain an endorsement of Croft’s (and/or the Third Party Provider’s, as applicable) interest in the Purchased Products on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Customer shall allow Croft to inspect the Purchased Products and the insurance policy; and
d) if the Customer becomes subject to any of the events listed in Clause 12.5, then (without limiting any other right or remedy Croft may have) immediately on Croft’s request: (i) deliver up all Purchased Products in its possession; and (ii) allow Croft to enter any premises of the Customer or of any third party where the relevant Purchased Products is stored to recover it.
3.4 The Customer shall, notwithstanding that title to the Purchased Products may have passed to it during the term of the Contract:
a) ensure that the Purchased Products are kept safe and secure;
b) be responsible for agreeing to, and complying with, all Third Party Terms of use and licensing terms applicable to the Purchased Products and the software contained within it;
c) suitable insurance to cover the full replacement cost of the Purchased Products; and
d) follow Croft’s and the relevant Third Party Provider’s written instructions for the storage, commissioning, installation, use and maintenance of the Purchased Products (“Instructions”) (or (if there are none) good trade practice regarding the same), and shall not, except where strictly required to do so to comply with the Instructions: (i) modify the Purchased Products; (ii) use the Purchased Products with any equipment or peripherals which are not supplied or approved by Croft; (iii) use the Purchased Products outside of the manufacturer’s recommended manner of use; and (iv) themselves perform, or permit any third party to perform, any support or maintenance in respect of the Purchased Products.
3.5 The Customer shall, if requested by Croft, update any software (including, without limitation, firmware) on the Purchased Products.
4. LEASED PRODUCTS AND CROFT EQUIPMENT
4.1 Croft shall hire the Leased Products to the Customer subject to the terms and conditions hereunder and the applicable Third Party Terms. Croft shall not, other than in the exercise of its rights under the Contract and Applicable Law, interfere with the Customer's quiet possession of the Leased Products.
4.2 The Leased Products and any Croft Equipment supplied as part of the Solution shall at all times remain the property of Croft (and / or the applicable Third Party Provider) and the Customer shall have no right, title or interest in or to the Leased Products or the Croft Equipment save the right to possession and use of the Leased Products and Croft Equipment subject to the terms and conditions hereunder and the applicable Third Party Terms.
4.3 The risk of loss, theft, damage or destruction of the Leased Products and Croft Equipment shall pass to the Customer on Delivery, and the Customer shall remain liable for all charges accrued during any period of loss, theft, damage or other inability to use the Leased Products and Croft Equipment. The Leased Products and Croft Equipment shall remain at the sole risk of the Customer during the Relevant Term and any further term during which the Leased Products and Croft Equipment are in the possession, custody or control of the Customer ("Risk Period") until such time as the Leased Products and Croft Equipment are redelivered to Croft. During the Relevant Term and the Risk Period, the Customer shall, at its own expense, keep the Leased Products and Croft Equipment insured on Croft’s behalf for their full price against all risks with a reputable insurer. The Customer shall obtain an endorsement of Croft’s (and / or the Third Party Provider’s, as applicable) interest in the Leased Products and Croft Equipment on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Customer shall allow Croft to inspect the Leased Products and Croft Equipment and the insurance policy.
4.4 The Customer shall:
a) give immediate written notice to Croft in the event of any loss, accident or damage to the Leased Products and Croft Equipment arising out of or in connection with the Customer's possession or use of the same;
b) ensure that Leased Products and Croft Equipment are kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
c) maintain at its own expense the Leased Products and Croft Equipment in good and substantial repair in order to keep them in as good an operating condition as it was at Delivery (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Leased Products and Croft Equipment;
d) not, without the prior written consent of Croft, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Leased Products and Croft Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
e) not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of the Lessor (and / or the applicable Third Party Provider) in the Leased Products and Croft Equipment; and
f) not suffer or permit the Leased Products and Croft Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Leased Products and Croft Equipment are so confiscated, seized or taken, procure that the relevant lessee shall notify Croft and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Leased Products and Croft Equipment and shall indemnify Croft on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation; and
g) ensure that at all times the Leased Products and Croft Equipment remain identifiable as being Croft's (and / or the applicable Third Party Provider's) property.
4.5 The Customer acknowledges that Croft shall not be responsible for any loss of or damage to the Leased Products and Croft Equipment arising out of or in connection with any negligence, misuse, mishandling of the Leased Products and Croft Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors.
4.6 The Customer acknowledges and agrees that:
a) the Leased Products may be supplied to Croft pursuant to lease agreements between certain third party funders ("Funder") and Croft ("Lease Agreement");
b) upon termination of any such Lease Agreement, it may either: (i) continue to lease the Leased Products directly from the applicable Funder on terms notified to the Customer by such Funder; (ii) purchase the Leased Products on terms notified to the Customer by such Funder; or (iii) promptly return the Leased Products (or allow the same to be recovered) in accordance with Clause 12.8(a); and
c) it shall have seven days from termination of the applicable Lease Agreement to notify Croft and the Funder of its selected option under Clause 4.6(b), and where it fails to do so Clause 4.6(b)(iii) shall apply.
5. DELIVERY AND INSTALLATION
5.1 Subject to the Customer’s payment in full of the applicable Charges, Croft shall use reasonable endeavours to deliver (and where agreed in the applicable Order Form, provide the Installation Services in respect of (at the delivery address specified in the Order Form or otherwise agreed between the parties in writing from time to time ("Delivery Address")) the applicable Purchased Products, Leased Products and / or Croft Equipment on or before any delivery date specified in the Order Form. Delays in the delivery and / or installation of such items shall not entitle the Customer to: (a) refuse to take delivery of such items; (b) claim damages; or (c) terminate the Contract. Croft shall have no liability for any failure or delay in delivering or installing any hardware or equipment to the extent that any failure or delay is caused by the Customer's failure to comply with its obligations under the Contract.
5.2 The Customer shall procure that its authorised representative is present for the delivery (and where applicable, installation) of the Purchased Products, Leased Products and / or Croft Equipment. If such representative is not present, Croft shall be entitled to charge the Customer all storage and redelivery costs and related expenses (including insurance). Acceptance by the Customer's authorised representative of Delivery (or, where applicable, installation) shall constitute conclusive evidence that the Customer has examined the Purchased Products, Leased Products and / or Croft Equipment and has found the same to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by Croft, the Customer's duly authorised representative shall sign a receipt confirming such acceptance. The Customer shall only be entitled to reject the Purchased Products, Leased Products and / or Croft Equipment for Non-Compliance (as defined in Clause 7.2).
5.3 As part of any Installation Services supplied by Croft, Croft shall carry out such testing (including Line testing) as it deems necessary. The Customer acknowledges and agrees that it may not be possible to verify whether the Solution will function at a particular location until after installation. In the event that the Solution cannot be activated Croft shall notify the Customer as soon as reasonably practicable. Upon receipt of such notification the Customer may elect to either proceed with an amendment to the Solution to be agreed between the parties, or to terminate the Contract with immediate effect, and it shall notify Croft of its decision within five Working Days of receiving Croft's notification. 1. In the event that Croft is unable to activate the Solution due to an act or omission of the Customer, Croft shall have the right to charge the Customer a failed connection fee of £30 + VAT.
5.4 The Customer acknowledges and agrees that the provision of the Installation Services and activation of the Solution may result in temporary disruption to its other telecommunications services.
6. CUSTOMER ENVIRONMENT
6.1 The Customer shall ensure that the Customer Environment is suitable for the provision of the Solution and meets the “Minimum Technical Requirements” (being Croft’s and the Third Party Providers’ minimum recommended requirements for the Customer’s access and use of the Solution, the details of which are freely available from Croft on request (as may be updated from time to time)). Except where otherwise agreed under the Order Form, the Customer is responsible for procuring and maintaining the Customer Environment, including for ensuring that the Customer Environment meets the Minimum Technical Requirements.
7. RESPONSIBILITIES AND WARRANTIES
7.1 The parties each warrant that they are authorised to enter into the Contract.
7.2 Croft warrants that the Solution when delivered by Croft, shall materially comply with its specification (if any) set out in the Order Form and any manufacturer’s warranty given to Croft by the manufacturer (to the extent that such warranty is transferable to the Customer). Croft hereby excludes all other conditions and warranties related to the description, merchantability, quality, or fitness for purpose of the Solution, including any such conditions or warranties implied by statute, common law or otherwise. The Customer must notify Croft of any non-compliance of the Solution within the warranty set out in this Clause 7.2 (“Non-Compliance”; "Non-Compliant" shall be construed accordingly) within seven days of Delivery of same. The Customer acknowledges that this provides sufficient time for the Customer to carry out a full, detailed, inspection of the Solution. Provided that such Non-Compliance is not caused by the Customer and / or fair wear and tear, and does not result from any breach of the Contract by the Customer, Croft will use reasonable endeavours to replace the same within three (3) weeks of the Non-Compliance being notified to Croft. Unless otherwise agreed in writing, delivery of any replacements will be conditional on the simultaneous return of the Non-Compliant items. If any such returned items are Non-Compliant, but the Non-Compliance is caused by the Customer (as determined by Croft), then the Customer shall reimburse Croft for the costs of any repairs required to put such items in good and working condition. The provisions of this Clause 7.2 set out the Customer’s sole and exclusive remedy in respect of any Non-Compliant or faulty elements of the Solution. The terms of the Contract shall apply to any repaired or replacement elements of the Solution supplied by Croft.
7.3 Notwithstanding the provisions of Clause 7.2, insofar as the Solution comprises or contains equipment or components which were not manufactured or produced by Croft, the Customer shall be entitled only to such warranty or other benefit as Croft has received from the relevant manufacturer.
7.4 The Customer:
a) shall comply with all Applicable Laws and Croft's instructions from time to time;
b) shall, where applicable, provide a suitable and safe working environment at its premises for any individuals acting on Croft's and / or any Third Party Providers behalf in connection with this Contract;
c) shall not use the Solution, or any part of it (or permit the same to be used): (i) in a way prohibited by law, regulation or governmental order; (ii) to violate or infringe any rights of Croft or any third party; (iii) to attempt to gain unauthorised access to or disrupt any service, device, data, account or network; (iv) to spam or distribute malware; (v) in a way that could harm the Solution or impair a third party’s use of it (or any part of it); (vi) in any application or situation where failure of the Solution could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage; and / or (vii) in a way that will or may reasonably be expected to have a material adverse effect on Croft or any Third Party Provider;
d) shall not permit use of Software Products over and above the applicable User Limit;
e) shall not permit any unauthorised or unlawful use of any Software Products; and
f) shall ensure that, where applicable, any users of Software Products keep their login details or license keys for such Software Products secure and do not share them with any third parties.
g) shall keep, maintain and ensure the Croft Equipment remains in good condition and in accordance with Croft's (or the applicable Third Party Provider's) instructions from time to time and shall not dispose of or use the Croft Equipment other than in accordance with Croft's (or the applicable Third Party Provider's) written instructions or authorisation;
h) not sub-license, transfer, lease, rent, lend, or distribute any element of the Solution, including Software Products, or permit third parties to use (whether directly, or as part of a managed service) the same; and
i) undertakes not to: (i) circumvent or bypass any technological protection measures in the Solution; or (ii) disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the Solution (except to the extent that such actions cannot be prohibited (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) because they are essential for the purpose of achieving inter-operability of the Solution with another software program, and provided that the information obtained during such activities is: (i) used only for the purpose of achieving such inter-operability; (ii) not unnecessarily disclosed or communicated to any third party without Croft’s prior written consent; and (iii) not used to create any software which is substantially similar to the applicable software forming part of the Solution.
7.5 The Customer acknowledges that the Solution is:
a) except in the case of IT Support Services, commercially available and has not been tailored to the Customer’s requirements. Therefore, it is the Customer’s responsibility to understand and implement any working practice changes required to make successful use of the Solution and to ensure that the Solution is suitable for its business purposes; and
b) provided on an “as-is” and “as available” basis and is not free of bugs and errors, and with no warranty that any bugs or errors can or will be corrected.
7.6 Croft:
a) does not warrant that the Customer's use of the Solution will be uninterrupted or error-free;
b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Solution may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
c) reserves the right to substitute or discontinue any item of Croft Equipment or Leased Product to change any specification in respect of the same at any time.
7.7 To the extent that Croft may reasonably require to perform its obligations under the Contract, the Customer shall: (a) permit Croft’s and its Third Party Provider's staff to have access to the Customer’s premises and systems (including, without limitation, the Customer Environment); (b) provide Croft and its Third Party Provider with prompt co-operation, assistance, and information (which shall include restoring the condition of any applicable site including required re-decorating following completion of the Installation Services); (c) make available to Croft and its Third Party Providers all office, information, and telecommunications facilities; and (d) promptly (and in any event within two Working Days) notify Croft of any faults or operational issues relating to the Solution, including a significant increase in usage.
7.8 The Customer acknowledges that Croft’s ability to perform its obligations under the Contract may depend on the Customer performing its obligations (including those under Clause 7.7.) to any agreed timescales (and in the absence of such agreed timescales, in a timely manner). Insofar as the performance of Croft’s obligations under the Contract is delayed or prevented by reason of an act, omission or breach of the Contract by the Customer then Croft shall be entitled to a reasonable extension of time to perform its obligations and to charge the Customer for the reasonable additional costs (if any) which it can demonstrate were incurred as a result of such act, omission, or breach.
7.9 The Customer acknowledges and agrees that Croft shall have no liability in respect of any third party gaining unauthorised access to the Solution (whether by 'hacking' or otherwise) ("Unauthorised Access"), and the Customer shall bear any and all costs arising from the same. Croft shall notify the Customer of Unauthorised Access as soon as reasonably practicable upon becoming aware of the same.
7.10 Where any element of the Solution is specified in the Order Form as being 'unmetered' or 'unlimited' (or similar) the Customer shall nonetheless ensure that usage of the same is kept to a reasonable level and in any event within 500gb per month. Where such level is exceeded Croft shall be entitled to implement policies and mechanisms to ensure traffic management in order to limit or restrict usage which Croft (in its sole discretion) considers to be excessive.
8. INTELLECTUAL PROPERTY
8.1 Save as otherwise expressly set out herein, Croft, the Third Party Providers and / or its other licensors own all Intellectual Property Rights in the Solution and all other data and materials provided by Croft under the Contract and / or produced by or forming part of the Solution, including any telephone numbers allocated to the Customer by Croft (excluding the Customer Materials) ("Proprietary Materials"). Croft hereby grants to the Customer (or shall procure a grant to the Customer of) a non-exclusive, non-transferrable, non-sub-licensable licence for the Relevant Term to use the Proprietary Materials for the sole purpose of receiving and using the Solution, subject to the terms of the Contract and any and all applicable Third Party Terms.
8.2 The Customer and / or its licensors own the Intellectual Property Rights in the Customer Materials. The Customer hereby grants (or shall procure a grant to Croft of) a fully paid-up, non-exclusive, royalty-free, transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Solution to the Customer.
8.3 Each party shall promptly enter into such documentation as is reasonably required by the other to vest ownership of Intellectual Property Rights in accordance with this Clause 8.
9. CUSTOMER MATERIALS AND DATA PROTECTION
9.1 The Customer has sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Materials. The Customer shall be responsible for making and keeping full back-up copies of the Customer Materials.
9.2 The Customer warrants that: (a) it is entitled to provide the Customer Materials to Croft; and (b) that any relevant third parties have given their consent for Croft to receive and use the Customer Materials in accordance with the Contract.
9.3 The Customer shall ensure that the Customer Materials do not contain any data or content which: (a) is unlawful; (b) infringes the rights of any third party; and / or (c) is offensive, abusive, indecent, obscene, menacing, defamatory, and / or fraudulent.
9.4 Subject to the rest of this Clause 9, the Customer acknowledges and agrees that Croft and the Third Party Providers shall be entitled to: (a) collect, access, modify, distribute, audit, reproduce, delete or remove any Customer Materials, and non-identifying and / or anonymised information relating to the Customer and / or the use of the Solution to the extent necessary to: (i) protect the Customer; (ii) provide, protect, and improve Croft’s or the Third Party Providers’ products and services; (iii) provide statistical analysis; (iv) protect the integrity of any data held by Croft and / or the Third Party Providers; and / or (v) comply with the Contract and / or any Applicable Laws; (b) disclose such data and information if required by law, to enforce the Contract or the Third Party Terms, or to protect Croft’s or the Third Party Providers’ rights or those of Croft’s customers; and (c) use cookies in the Solution (or any part of it).
9.5 It is the parties' understanding that no Personal Data will be Processed in connection with the Contract. Notwithstanding the foregoing, if and to the extent that the parties Process Personal Data in connection with the Contract then they each acknowledge and agree that they shall do so as separate Controllers and shall each comply with their applicable obligations under the Data Protection Legislation.
10. CHARGES AND PAYMENT
10.1 The Charges are due on the dates they are expressed as payable in the applicable Order Form.
10.2 The Charges are payable in accordance with the payment terms set out in the Order Form (or, if no payment terms are specified, the Charges are payable monthly in arrears or in such other manner as may be agreed between the parties). The time for payment shall be of the essence of the Contract. Any Charges payable which are based on usage shall be calculated by Croft in its sole discretion by reference to data it records, and such calculations (in the absence of manifest error) shall be final and binding.
10.3 In relation to a particular Software Product, the Charges may be calculated on the basis of the applicable User Limit of that Software Product. In the event that the Customer’s usage of a particular Software Product is close to the User Limit, then Croft shall notify the Customer of the same. In the event that the Customer exceeds the User Limit or fails to comply with Clause 7.4 (d) to (f) then Croft shall be entitled to suspend the Customer's access to the relevant Software Product until such time as the Customer has purchased an increased User Limit for that Software Product, at the then-applicable per-user cost and the Charges shall be increased accordingly. Purchase of an increased User Limit shall not amount to a variation of the terms of an existing Order Form for the purposes of Clause 16.2 and shall not require a Variation Letter to take effect.
10.4 The Charges are payable by the Customer in cleared funds without any set-off or deduction, and are exclusive of any tax, levy or similar governmental charge (including value added or sales tax) which shall be paid by the Customer at the rate and in the manner prescribed by law. Croft may at any time, without notice to the Customer, set off any liability of the Customer to Croft against any liability of Croft to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Contract. If the liabilities to be set off are expressed in different currencies, Croft may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Croft of its rights under this Clause shall not limit or affect any other rights or remedies available to it under this Contract or otherwise.
10.5 Croft shall be entitled to raise invoices for the Charges on or after the date such become payable. Each invoice shall (unless specified otherwise in the Order Form) be paid by the Customer within thirty (30) days (or such other period as agreed in writing between the parties) of the date of such invoice (the “Due Date”). Croft may require the Customer to pay invoices by direct debit or standing order (or by such other method agreed by the parties in writing).
10.6 All Charges payable by the Customer to Croft are exclusive of customs, handling, import and / or export duties and all VAT and general sales tax (GST) (or equivalent sales tax), sales, withholding or other taxes (other than income tax to which Croft may be subject). If any amount due is subject to customs, handling, import and / or export duties and / or VAT, GST, sales, withholding or any other tax (other than income tax applicable to Croft) which has the effect of reducing the amount of money which Croft would have been entitled to receive from the Customer or to retain under this Contract but for such tax, the Customer will, at Croft’s request, pay to Croft such additional sum at the rate for the time being prescribed by law for that tax.
10.7 If any sum payable by the Customer is not paid by the Due Date, then (without prejudice to Croft’s other rights and remedies) Croft: (a) shall be entitled to suspend the provision of the Solution until all outstanding invoices have been paid; and (b) reserves the right to charge interest on that sum on a daily compounded basis (before as well as after any judgment) at an annual rate of four per cent (4%) above the base rate from time to time of National Westminster Bank plc.
10.8 Croft shall be entitled to charge the Customer for the reasonable expenses it incurs in respect of performing its obligations hereunder (which will be notified in advance to the Customer).
10.9 Unless otherwise agreed by the parties in writing, Croft shall have the right to increase the Charges each calendar year by providing written notice (including, without limitation, email notice) to the Customer (which shall take effect immediately), provided that such increase of Charges is not more than the then-current positive value of the Consumer Price Index Annual Rate, plus 3.9%.
11. CONFIDENTIAL INFORMATION
11.1 Each party that receives (“Receiving Party”) non-public business or financial information, (“Confidential Information”, and Croft’s Confidential Information shall include details of the Solution and the Third Party Providers) from the other (“Disclosing Party”), whether before or after the date of the Contract shall: (a) keep the Confidential Information confidential; (b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clause 11.2 or 11.3; and (c) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under the Contract (“Permitted Purpose”).
11.2 The Receiving Party may disclose Confidential Information to its own, or any of its officers, directors, employees agents and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 11 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to the Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 11.
11.3 If required by law, any regulatory authority, or any relevant stock or securities exchange, the Receiving Party may disclose Confidential Information to a court, such regulatory authority, or such relevant stock or securities exchange provided that the Receiving Party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.
12. TERM, TERMINATION, AND SUSPENSION
12.1 Croft shall provide (or procure the provision of) the Solution during the relevant term specified for that product or service in the Order Form (“Relevant Term”). Each Contract shall commence on the Contract Commencement Date and shall continue in accordance with the provisions of this Clause 12.
12.2 Where the Order Form provides for a ‘monthly rolling’ term (beginning on a service start date notified to the Customer by Croft), the relevant Contract shall continue until either party gives the other party written notice (at least thirty (30) days before the beginning of the relevant month) then the Contract will terminate at the end of the relevant month (unless the Contract is terminated earlier in accordance with the remainder of this Clause 12).
12.3 Where the Order Form provides that the Contract will run for an initial minimum period, then (unless terminated earlier in accordance with the remainder of this Clause 12):
a) the Contract shall continue for the minimum period specified in the Order Form ("Primary Period"), and shall continue thereafter for a further 12 month term ("Renewal Term"), unless cancelled in writing no less than 90 days before each successive contract anniversary;
b) either party may terminate the Contract at any time by giving the other party the requisite amount of prior written notice specified in the Order Form; and
c) in the event that the Customer terminates the Contract in accordance with Clause 12.3(b) prior to the expiry of the Primary Period it shall (without prejudice to Croft's other rights and remedies) be obliged to immediately pay the Early Termination Payment to Croft.
12.4 Where the Order Form provides that the Contract will run for an initial term and then renew for subsequent renewal terms, then (unless terminated earlier in accordance with the remainder of this Clause 12) the Contract shall continue for the initial term specified in the Order Form ("Initial Term"), and shall automatically extend for a period equal to the Initial Term ("Renewal Term") at the end of the Initial Term and at the end of each Renewal Term. Either party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Renewal Term, to terminate the Contract at the end of the Initial Term or the relevant Renewal Term, as the case may be.
12.5 Either party shall be entitled to terminate the Contract immediately if the other party: (a) commits any material breach of the Contract (and where such breach is capable of remedy, fails to remedy that breach within fourteen (14) days of written notice of that breach); or (b) being a company, shall pass a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court shall make an order to that effect; or, being a natural person, shall die; or, being a partnership or other unincorporated association, shall be dissolved; or shall cease to carry on its business or substantially the whole of its business; or it becomes or is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or if a liquidator, receiver, administrator, administrative receiver, manager, trustee, or similar officer is appointed over any of its assets. The parties acknowledge and agree that for the purposes of this Clause 12.5(a) the Customer shall be deemed to have committed an irremediable material breach of the Contract where any licence it requires in order to run or operate the Customer Environment is revoked or ceases to be valid.
12.6 Croft may (without prejudice to its other rights or remedies), on written notice, suspend provision of all or part of the Solution if:
a) it suspects (acting reasonably) that the Customer is using the Solution (or any part of it) in an unauthorised way;
b) there is a breach of Clause 7.2, or the circumstances in Clause 10.7(a) apply;
c) there is any breach of the Third Party Terms;
d) there is (or Croft suspects, acting reasonably, that there is) a security breach by the Customer in respect of the Solution;
e) Croft is entitled to terminate the Contract;
f) Croft is obliged to comply with an order, instruction or request of the UK government, an emergency services organisation, the provision of telecommunications services or the establishment of networks or any information provided across them or other competent administrative authority; and
g) Croft is required to carry out emergency works to the network or any equipment installed at the Customer's premises in respect of the Solution.
12.7 If all or a part of the Solution is suspended by Croft under Clause 6 for a period of five (5) or more consecutive Working Days, Croft shall be entitled to terminate the Contract immediately on written notice to the Customer.
12.8 On termination of the Contract howsoever caused:
a) the Customer must promptly: (i) return to Croft all property and equipment belonging to Croft and / or the Third Party Providers (including Croft Equipment, Croft Materials and Leased Products) provided by to the Customer hereunder (except any Purchased Products to which title has passed to the Customer under Clause 3) (failing which, the Customer shall hold the same on trust for Croft and / or the applicable Third Party Provider from the effective date of termination and permit Croft and / or its Third Party Provider all such access to Customer’s premises as may be required for Croft or such Third Party Provider to remove such equipment), and in each case provide written certification of the same;
b) the Customer shall, where it fails to return any equipment in accordance with Clause 12.8(a) within 30 days of the expiry or termination of the Contract, promptly pay to Croft the market value of the equipment in question;
c) Croft shall promptly return all Confidential Information of the Customer within Croft’s possession and control;
d) all rights and licences granted to the Customer under the Contract shall terminate (including, without limitation, access and use of the Solution (or any part of it);
e) the Customer shall immediately pay all outstanding amounts due to Croft including any interest thereon (and Croft shall be entitled to submit invoices for payable amounts in respect of which no invoice has been submitted, which shall be payable by the Customer immediately on receipt);
f) the rights and duties created by the following clauses: 8, 9.5, 10.5 and 10.6 (including accrued payment obligations), 11, this clause 12.8, 13, 15, 17, 18.1, and 18.6 to 18.9 (inclusive) shall survive; and
g) any rights of either party which arose on or before termination shall be unaffected.
12.9 If within 30 days after termination of the Contract the Customer requests in writing that Croft provides a copy of the Customer Materials which is in Croft’s possession and control (being such Customer Materials which is stored on Croft’s own servers), Croft shall use its reasonable endeavours to provide a copy of such Customer Materials to the Customer. Croft shall be entitled to delete the Customer Materials after such 30 day period has expired. The return and / or deletion of the Customer Materials stored on Third Party Providers’ systems and / or otherwise within the possession or control of Third Party Providers will be subject to the Third Party Terms.
13. NON-SOLICITATION
13.1 During the term of this Contract, and for a period of 6 months thereafter, the Customer shall not, without the prior written consent of Croft, directly or indirectly:
a) provide or supply (or collude with others, or take preparatory steps to do the same) goods, services, or assistance (whether contracted or otherwise) to any individual, company, or organisation which are the same as, similar to, or substitutable for the Solution (or any part of it); and / or
b) solicit or entice away (or attempt to solicit or entice away) from the employment of Croft or any Third Party Provider any person employed or engaged by Croft or any Third Party Provider in the provision of the Solution (or any part of it), other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of Croft or any Third Party Provider. If the Customer commits any breach of this Clause 13.1(b), it shall, on demand (without prejudice to Croft’s other rights and remedies), pay to Croft a sum equal to one year's basic salary or the annual fee that was payable by Croft and / or the Third Party Provider to that employee, worker or independent contractor plus the recruitment costs incurred by Croft and / or the Third Party Provider in replacing such person.
14. PUBLICITY
14.1 The Customer shall not, without Croft’s prior written consent, publicise the existence and / or nature of the Contract. Croft shall be entitled to publicise the existence and / or nature of the Contract in its press releases, stock market announcements, and / or its sales and marketing literature.
15. LIABILITY
15.1 Notwithstanding any provision of the Contract, neither party excludes or limits its liability for: (a) death or personal injury caused by its negligence; and/or (b) fraud or fraudulent misrepresentation.
15.2 Croft shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of revenue, loss of business, depletion of goodwill and / or similar losses, loss or corruption of data or information, pure economic loss, costs of procuring replacement services, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract.
15.3 The Customer agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into the Contract and its only remedies can be for breach of contract (unless the statement was made fraudulently).
15.4 Croft’s total aggregate Contractual Liability shall not exceed the total Charges paid under the relevant Contract. “Contractual Liability” means liability howsoever arising under or in relation to the Contract (whether in contract (including under any indemnity), tort (including negligence) or otherwise) that is not: (a) unlimited by virtue of Clause 15.1; or (b) excluded pursuant to Clauses 15.2 and 15.3.
15.5 Except as expressly provided in the Contract, Croft hereby excludes all implied conditions and warranties related to the merchantability, quality, or fitness for purpose of the Solution, whether such condition or warranty is implied by statute, common law or otherwise.
16. CHANGES
16.1 Croft may, acting reasonably, update these Conditions from time to time by giving notice to the Customer (which may be provided by email).
16.2 Without prejudice to Clause 10.3 and 16.1, the parties may vary the terms of an existing Order Form from time to time, by entering into a variation letter, on terms provided by Croft (“Variation Letter”).
17. DISPUTES AND GOVERNING LAW
17.1 Any dispute arising under the Contract should first be escalated to the senior management of each party. If the dispute remains unresolved for more than twenty-one (21) days, the parties will attempt in good faith to resolve the dispute by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed by the parties, the mediator will be nominated by CEDR. The foregoing provisions of this Clause 17.1 shall not apply to any disputes over recovery of a debt, and shall not restrict either party from seeking injunctive relief.
17.2 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.3 Subject to Clause 17.1, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
18. GENERAL PROVISIONS
18.1 Assignment and other dealings. Croft may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations hereunder. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations hereunder. The rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.
18.2 Third Party Rights. The parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of the Contract, save for Funders and for Third Party Providers (who may directly enforce and rely on the Third Party Terms as against the Customer), but the rights of the parties to rescind or vary the Contract are not subject to the consent of any other person).
18.3 Relationship. Nothing in the Contract shall render the Customer a partner or an agent of Croft and the Customer shall not purport to undertake any obligation on Croft’s behalf nor expose Croft to any liability nor pledge or purport to pledge Croft’s credit.
18.4 Force Majeure. Neither party shall be in breach of the Contract to the extent that it is prevented from performing its duties and obligations under the Contract directly or indirectly as a result of a Force Majeure Event. “Force Majeure Event” means any event beyond the reasonable control of the relevant party, and includes, without limitation any: (a) act of God (including adverse weather conditions), explosion, flood, tempest, fire, or accident; (b) unusual atmospheric conditions and unusual conditions in outer space which may affect signals to and from and the workings of satellites; (c) war or threat of war, sabotage, insurrection, act of terrorism, civil disturbance, or requisition; (d) strikes, lock-outs or other industrial actions, or trade disputes; (e) difficulties in obtaining raw materials, labour, fuel, parts, or machinery; (f) power failure or breakdown in machinery, or failure of the Internet or other public networks, telecommunications networks or utilities; (g) epidemic or pandemic; and (h) act or omission of government or other competent authority.
18.5 Entire Agreement. The Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to their subject matter and constitute the entire contract between the parties relating to the subject matter.
18.6 Severance. If any part of the Contract is held unlawful or unenforceable that part shall be struck out and the remainder of the Contract shall remain in effect.
18.7 No Waiver. No delay, neglect or forbearance by either party in enforcing its rights under the Contract shall be a waiver of or prejudice those rights.
18.8 Notices. All notices under the Contract shall be in writing and shall be sent to the address of the recipient set out in the Order Form (including any email address) or to such other address as the recipient may have notified from time to time. Any notice may be delivered by signed-for postage or courier service or by email and shall be deemed to have been served if by courier service or sign-for post, 48 hours after delivery to the courier or posting (as the case may be), or if by email only where the email is acknowledged by the other party (provided that emailed invoices and day-to-day email correspondence does not need to be acknowledged, and shall be deemed served immediately on sending, provided that no automated notice of non-delivery is received).
18.9 No Bribery. The Customer warrants that it: (a) has not committed and will not commit an offence under the Bribery Act 2010 in relation to the Contract or any other contract with Croft; and (b) has adequate procedures (as referred to in section 7(2) of the Bribery Act 2010) in place to prevent its associated persons from committing an offence under the Bribery Act.