These General Terms and Conditions (“GTC”) shall apply to any provision of service and/or sale of equipment (“Service”) by Connectis CMC UK Limited (“CMC”) to customer (“Customer”).

The Customer’s business terms are expressly excluded.

1/ Order and Term

1.1 The Order (“Order”) comprises the Order Confirmation (as defined below), an order form, any Service description, Service level agreement, applicable Service specific terms and these GTC. In case of conflict between documents, they shall take precedence in the listed order above.

1.2 An Order Confirmation means either (a) a notice from CMC confirming that it accepts the relevant Order form, or (b) a notice communicating the expected installation date, or (c) the Order form itself with CMC’S counter-signature.

1.3 The Order takes effect on the date of Order Confirmation. Unless stipulated differently in the Order, the initial term of service shall be 12 months from the date that the Service is ready for use as communicated by CMC to Customer (“Availability Date”) or, if earlier, the date Customer starts using the Service other than for testing purposes (“Initial Term”). After expiry of the Initial Term, the Order shall be automatically renewed for additional, successive 12 month periods (each, an “Annual Extension Period”) unless terminated in accordance with clauses 9 or 2.4.

2/ Charges

2.1 Charges will be set out in the Order; if not, the current standard charges of CMC apply. If a third party is required for the delivery of a Service, the third party costs, which are incorporated in the charges, are subject to survey of the relevant site or review or confirmation by the third party. Such survey, review or confirmation may result in a change to the costs. Any such change will be passed on to Customer in its entirety as part of the charges.

2.2 All charges stated on the Order will be exclusive of VAT unless specified otherwise.

2.3 CMC may charge Customer interest on overdue sums at the annual rate of 5% above the base lending rate of the Bank of England from time to time, such interest to accrue daily.

2.4 CMC may revise the charges for the provision of Services agreed in the Order at any time after the expiry of the Initial Term providing Customer with 30 days’ notice prior to the revision taking effect. Customer shall be deemed to have accepted the revised charges unless, in case of an increase, Customer has terminated the affected Order(s) by giving CMC notice, to expire at the end of that 30 day period.

2.5 Charges may be changed at any time in order to comply with any change of mandatory law or regulations.

3/ Payment

3.1 Payment shall be due 30 days after the date of invoice such invoices will be raised by CMC monthly on the 18th day of the month prior to the month of service.

3.2 CMC will send invoices to Customer by email or in an electronic format, unless CMC agrees with Customer to send invoices by post. The format of the invoice shall not affect Customer’s obligation to make payment under clause 3.1 or CMCs rights under clauses 2.3 and 5.

3.3 Invoices are deemed accepted if not disputed, with detailed evidence of the dispute, within 10 days of the date of the invoice. If disputed, Customer must still pay the undisputed portion of the invoice by the due date.

4/ Fraud

4.1 Customer shall not use the Service for any fraudulent or unlawful purposes, and shall ensure there are adequate safeguards in place to prevent others from doing so, whether arising in connection with Customer’s equipment or otherwise. Customer is solely responsible for any fraudulent or unlawful acts that occur and shall indemnify CMC against all liabilities arising from such claims. CMC has no responsibility or liability over the configuration, use or operation of Customer’s equipment unless CMC has expressly agreed otherwise in writing.

5/ Suspension of Delivery

5.1 CMC may, without prejudice to any other right or action it might have, suspend the Services: (a) on giving 7 days’ prior notice (or longer if required by law) if Customer does not pay an invoice when due or is in breach of any other term of the Order, or (b) CMC reasonably suspects the Service is being used for fraudulent or unlawful purposes.

6/ Delivery

6.1 The Service will be deemed accepted from the Availability Date or, if earlier, the date Customer starts using the Service other than for testing purposes, unless (a) Customer notifies CMC in writing within 5 working days of the Availability Date with reasons explaining why the Service is not ready for use; and (b) CMC provides written confirmation of its acceptance of the Customers reasons set out in (a) above that the Service is not ready for use.

6.2 Customer shall provide CMC with access and reasonable co-operation and/or make sure that third parties provide CMC access to all sites and reasonable co-operation, on reasonable terms in each case, necessary for CMC to provide the Services, including to install any of CMC or Customer’s equipment. CMC may require Customer to provide written evidence of its right to access such sites.

6.3 If CMC accepts within its sole discretion to defer the delivery of Service upon Customer’s request, there shall be no change in the installation and Service charges being incurred from the Availability Date.

6.4 Property and title to CMC’s equipment installed at Customer’s or third party’s site for the provision of Service remain with CMC and Customer shall apply, and shall ensure any such third parties apply, reasonable care and comply with any reasonable instructions which CMC may issue in relation to it.

6.5 Where equipment is sold, risk shall pass to Customer on delivery. CMC retains property and title until it receives full payment of the due purchase price.

7/ Warranty and Service Levels

7.1 CMC warrants that the Service shall be provided in accordance with the Order using reasonable skill and care.

7.2 In case of the Service not fulfilling the contractually agreed requirements: (a) CMC shall remedy the Service for the future in accordance with the SLA or, in the absence of a SLA, within a reasonable period, and (b) Customer may claim Service credits if applicable in accordance with the SLA. Service credits shall be Customer’s sole remedy for a breach of the SLA.

7.3 Where equipment is sold, CMC will endeavour to pass onto Customer the benefit of any warranty (if any) CMC receives from its supplier of the equipment. The Customer shall only be entitled to the benefit of any warranty or guarantee, which CMC is capable of assigning to the Customer.

8/ Intellectual Property

8.1 All intellectual property rights owned by a party prior to the date of Order Confirmation (“Background IPR”) shall remain vested in that party.

8.2 Except as provided for elsewhere in this GTC or expressly agreed in writing by CMC, the Customer shall not acquire any right, title and interest in any intellectual property rights of CMC including its Background IPRs and CMC hereby grants to Customer, a worldwide, royalty free, non-exclusive, non-transferable license during the Initial Term or a subsequent Annual Extension Period to use its Background IPRs, solely to the extent necessary for the performance of this GTC.

9/ Termination

9.1 Either party may terminate the Service by giving 90 days’ written notice to take effect at the end of a calendar month, no earlier than the end of the Initial Term or a subsequent Annual Extension Period. Customer shall pay the charges due until the end of the Initial Term or the next Annual Extension Period.

9.2 Either party may terminate the Service in whole immediately by giving notice in writing: (a) if the other party breaches any material term of the Order (including non-payment of undisputed charges by Customer when due) and, if the breach is capable of remedy, fails to remedy the breach within 30 calendar days upon written notice to do so, or (b) if the other party is threatened to become insolvent, becomes insolvent or ceases business.

10/ Limitation of Liability

10.1 Nothing in these GTC shall limit or exclude either party’s liability:

(a) losses liability for which may not be otherwise limited or excluded under applicable law;
(b) fraud and fraudulent misrepresentation;
(c) death or personal injury caused by the negligence of Getronics, its employees, agents or sub-contractors in the course of their engagement under this GTC; and
(d) losses recoverable under Part I of the Consumer Protection Act 1987.

10.2 Subject to Clause 10.1, CMC’s total aggregate liability to the Customer whether based on an action in contract, tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with the Order will be limited to, in any one Contract Year (as defined below) to one hundred percent (100%) of the aggregate amount actually paid or payable by the Customer under the Order during that Contract Year (excluding value added tax). Contract Year means the period of 12 months from the Availability Date or the anniversary of such date.

10.3 Subject to clause 10.1 CMC and its affiliates shall not be liable whether based on a claim in contract, tort (including negligence), under an indemnity, breach of statutory duty or otherwise arising out of, or in relation to, these GTC:

(a) any indirect, consequential, incidental, special, exemplary or punitive damages, costs or expenses; and/or
(b) (i) any losses of production, (ii) loss caused by delay, loss of data and/or corruption to data, (iii) loss of profits, revenue, contracts, business opportunity, goodwill, reputation or anticipated savings, and/or loss of operational or management time,
of any kind whatever and however caused, and whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise, and even if foreseeable or suffered in circumstances where CMC and/or its affiliates has been advised of the possibility of such losses.

11/ Force Majeure

11.1 Neither party shall be liable for any event beyond its reasonable control including, but not limited to, flood, fire, earthquake, war, act of terrorism, high winds, industrial action, power failure, failure of telecommunications lines, act or omission of government, legislation, act of God, or any other occurrence of a like nature, but excluding: (i) any delay or failure caused by any supplier or sub-contractor unless such supplier or sub-contractor is itself affected by an event beyond its reasonable control and which that supplier or sub-contractor cannot reasonably prevent or overcome; or (ii) any event attributable to that party’s wilful act, neglect or failure to take reasonable precautions against the relevant event (“Force Majeure”).

11.2 If either party is prevented, hindered or delayed from or in performing any of its obligations under the Order by a Force Majeure event, such obligation will be suspended while the Force Majeure event continues and neither party will be deemed to be in breach of such obligations.

11.3 If the Force Majeure event lasts longer than 30 days either party shall be entitled to terminate the Order immediately.

12/ Relief Events

12.1 In this Clause 12, a (“Relief Event”) shall mean any breach by the Customer of any of the Customer’s obligations under the Order or failure by the Customer and/or any third party appointed by the Customer to fulfil any responsibilities as set out in the Order (whether in whole or in part and whether in relation to non-performance, incomplete performance or timeliness) including but not limited to obligations or responsibilities in relation to any other third party contracted to or under the direction of the Customer, except to the extent that it is the result of any act or omission by the Customer to which CMC has given its prior written consent.

12.2 CMC will not be in breach of this GTC to the extent its failure to perform an obligation under this GTC is a direct result of a Relief Event subject to CMC using all reasonable endeavours to perform the Services notwithstanding the Relief Event;

12.3 CMC shall notify the Customer of a Relief Event as soon as possible after such occurrence

12.4 If a Relief Event occurs CMC shall use all reasonable endeavours to perform the Services without incurring any additional direct costs. If CMC anticipates that it will incur additional direct costs in performing the Services as a direct result of any Relief Event, it shall inform the Customer in writing as soon as practicable. CMC shall be entitled to claim from Customer those additional costs reasonably and necessarily incurred by CMC to the extent that such costs are a direct result of a Relief Event. CMC shall use reasonable endeavours to mitigate such costs.

13/ Data Protection

13.1 Unless otherwise agreed in writing by CMC, CMC acts as data processor of the Customer’s personal data and not as data controller. CMC shall take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data (as defined by law) and shall comply with such other applicable data protection legislation as may be in force at the time.

13.2 CMC may use affiliated companies and third parties located outside the European Economic Area (“EEA”) to deliver the Service for the Order.

13.3 To the extent that the Customer is a data controller and CMC is either: (i) a data controller; or (ii) a data processor, Customer hereby authorises CMC: (a) to process personal data obtained from Customer, and, where applicable, (b) to export such personal data outside the EEA and to sub-contract affiliated companies or third parties located outside the EEA for processing such personal data, in order to fulfil its obligations under the Order.

14/ Confidentiality

14.1 (“Confidential Information”) means any information, concerning the business affairs of the other, whether written or oral including but not limited to; prices, data, practical know-how, drawings or specifications and documentation which receiving party receives from disclosing party except that which: (a) is in the public domain, and/or (b) was contained in documents rightfully known to receiving party prior to receiving same from disclosing party, and/or (c) receiving party lawfully received from a third party without that third party’s breach of agreement.

14.2 Receiving party shall not disclose, or permit access to, any portion of the Confidential Information to any person except: (a) if such person is an agent, sub-contractor, affiliate, auditor, professional advisor of receiving party and has a reasonable need to know the Information and such person is legally bound by similar confidentiality provisions to those contained in these GTC, or (b) if necessary to comply with legal or regulatory obligations.

14.3 This clause 13 shall continue to apply for a period of 5 years after expiry or termination of the Order.

15/ Assignment, Sub-Contracting and Variation

15.1 Except as provided for in this clause 15, neither party may assign this GTC, or sub-contract any of its obligations hereunder, without the prior written consent of the other.

15.2 CMC may assign the Order to another CMC entity, affiliated company or a third party.

15.3 CMC shall be entitled to sub-contract any of its obligations under the Order, provided that it shall at all times remain liable to the Customer for performance of such obligations.

15.4 This GTC may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties hereto, which in the case of CMC is a statutory director of CMC.

16/ Entire Agreement

16.1 The Order constitutes the entire agreement and understanding between the parties in respect of matters dealt with in it and supersedes, nullifies and cancels all other commitments, representations, warranties and any previous agreement between the parties relating to the subject matter of the Order.

16.2 Except for fraudulent misrepresentations, each party warrants to each other that it has not relied on any statement, representation, promise, inducement or understanding of any kind or nature in entering into the Order which the Order does not contain.

17/ Advertising and Trademarks

17.1 CMC may make the existence, but not the detail, of the Order known to other customers and potential customers.

17.2 Except as set out in clause 17.1 neither party shall have any right to use any trade mark or trade name of the other without the other’s prior written consent, which consent shall not be unreasonably withheld or delayed.

18/ Contracts (Rights of Third Parties) Act

18.1 Except as expressly provided for within the Order, the Order is not intended to and does not give any person who is not a party to the Order any rights to enforce any provision contained in the Order under the Contracts (Rights of Third Parties) Act 1999.

19/ Notices

19.1 Routine correspondence between the parties under the Order shall be effected by electronic email and electronic receipt. For the avoidance of doubt, any formal notice to be given under the Order shall be cross-referenced to the clause in the GTC to which it relates and delivered or sent by first class post to a party’s registered address or by facsimile (such facsimile notice to be followed by a hard copy posted within 24 hours) and addressed to the CMC Client Director with a copy to the Legal Director (in the case of CMC) and addressed to the authorised signatory of the Customer as set out in the Order (in the case of the Customer).

20/ Ethical Behaviour

20.1 Each party shall and shall procure that its officers, employees, agents and service providers shall:

(a) comply with all applicable anti-corruption laws including but not limited to the Bribery Act 2010 as amended (“Anti-Corruption Laws”); and
(b) not, directly or indirectly, either in private business dealings or in dealings with the public sector, offer, promise or give (or agree to offer, promise or give) any financial or other advantage with respect to any matters which are the subject of any agreement between the Parties and/or for either Party to obtain any benefit from the other Party which would violate any Anti-Corruption Laws.

20.2 If either party becomes aware of any breach or suspected breach of this clause 20, that party shall promptly notify the other party and the non-breaching party may immediately suspend operation of all or part of the Order by giving written notice to the other party, pending an investigation into the breach or suspected breach. Each party shall assist the other party in any such investigation, including by providing access to relevant personnel, documents and systems.

20.3 If, in the reasonable opinion of the non-breaching party, the breach of this clause 20 was directly ordered or authorised by the breaching party, or the breaching party otherwise failed to take reasonable action that would have prevented a breach of the obligations in this clause 20, the non-breaching party may immediately terminate any or all Orders between the parties by giving written notice to the other party.

21/ No Partnership

21.1 Nothing in the Order is intended to create a partnership or joint venture or the relationship of principle and agent between the parties and neither party has the authority to make representations, act in the name or on behalf of, or otherwise to bind, the other in any way.

22/ Waiver

22.1 The rights and remedies of each party under the Order maybe exercised as often as necessary, and are cumulative and not exclusive of rights or remedies provided by law and may be waived only by specific written waiver. Delay in exercising or non-exercise of any such right or remedy does not constitute a waiver of that right or remedy or any other right or remedy.

23/ Severability

23.1 If any provision of the GTC is or becomes illegal, invalid or unenforceable, in respect of:

(a) it shall not affect or impair the legality , validity or enforceability or any other provision of the agreement; and
(b) the parties will use reasonable endeavours to negotiate in good faith with a view to replacing it with a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the illegal, invalid or unenforceable provision but differing from the replaced provision as little as possible.

23.2 If any illegal, invalid or unenforceable provision would be legal, valid or enforceable if some part of it were deleted, such provisions shall apply with minimum modifications necessary to make it legal, valid or enforceable.

24/ Costs

24.1 Except as otherwise agreed or specifically provided in the Order, each party shall pay the legal and other costs and expenses incurred by it in connection with the negotiation, preparation and entering into of the Order.

25/ Counterparts

25.1 The Order may be executed in any number of counterparts and by the parties to it on separate counterparts and each such counterpart shall constitute an original of the Order but all of which together constitute one and the same Order. The Order shall not be effective until each party has executed at least one counterpart. Delivery of an executed counterpart signature page of the Order by e- mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of the Order.

26/ Governing Law

26.1 The Order shall be governed by and construed in accordance with the laws of England and the parties agree, without prejudice to the Dispute Resolution Procedure, to submit to the exclusive jurisdiction of the English courts.

27/ Dispute Resolution Procedure

27.1 This clause 27 sets out the steps to be followed in the event of a dispute between the parties (“Dispute Resolution Procedure”).

27.2 Where a dispute arises a notice of dispute shall be sent by one party to the other setting out the material particulars of the dispute and why the person serving the notice believes the dispute has arisen. In such an event, the parties shall continue to comply with their respective obligations under the Order regardless of the nature of the dispute and notwithstanding the referral to the Dispute Resolution Procedure.

27.3 The parties to this Order will attempt in good faith to resolve any dispute or claim arising out of or relating to this Order promptly through negotiations between the respective senior executives of the parties who have authority to settle the same.

27.4 If the matter is not resolved through negotiation within 30 calendar days from the date of the notice, the parties will attempt in good faith to resolve the dispute using a procedure such as mediation or executive tribunal or other dispute resolution technique recommended to the parties by the Centre for Dispute Resolution (“ADR Procedure”).

27.5 The fees and the costs of such ADR Procedure shall be borne equally by the parties.

27.6 Nothing in this clause 27 shall prevent either party from seeking injunctive relief and/or applying for summary judgement at any time.

27.7 Except in relation to matters referred to in clause 27.6 neither party shall be entitled to institute court proceedings in respect of a dispute unless and until they have attempted to resolve the dispute in accordance with clause 27.3.

28/ NON-SOLICITATION OF STAFF

28.1 Except in the event of any staff transfer under the Transfer Regulations (where applicable), each party agrees not to solicit the employees or the sub-contractors of the other, whether as an employee or in any other capacity, during the Initial Term or any Annual Extension Period and for a period of six months after its expiry or termination.

28.2 The restriction in clause 28.1 shall not apply to offers of employment or engagement made further to a good faith response to an openly advertised job vacancy.

28.3 A party in breach of the terms of this clause shall pay to the other by way of liquidated damages a sum equal to the annual salary of the employee concerned.