FUEL CARD SERVICES LIMITED
TELE-GENCE Trade TERMS AND CONDITIONS
The following Terms and Conditions govern the use of the Products and related Services provided by Fuel Card Services Limited.
- DEFINITIONS
1.1 In these Terms and Conditions the following words, terms or expressions have the following meanings:
“Agreement” means the contract between the parties for the supply of the Services which incorporates these Terms and Conditions.
‘’Additional Charges’’ means the charges set out in the Charges Schedule.
‘’Agreement’’ means these Terms and Conditions of Supply.
“Application Form” means the Supplier’s standard application form completed by the Customer and submitted by the Customer to the Supplier;
‘’Confidential Information’’ means information of commercial, proprietary or other value disclosed by one Party to the other Party which is identified as confidential or might reasonably be considered to be confidential and that has not come into the public domain or been independently developed. “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
‘’Charges Schedule’’ means the charges set out at www.fuelcardservices.com/tariffs
‘’Commencement Date’’ means the beginning of the first billing period.
‘’Contract’’ means a contract between the Parties for the sale or rent of Products and/or the Services entered into between the Customer and Supplier in accordance with clause 2.
‘’Customer’’ means the entity purchasing or renting the Products (as applicable) and/or the purchaser of Services.
“Customer Data” means the data controlled by or otherwise passed to the Supplier by the Customer under the Agreement
‘’Data Collection Device’’ means an electronic device that can be used for obtaining, capturing and transmitting Location Data, asset operations and asset performance via satellite tracking and for sending and receiving such data.
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Protection Documentation” means the relevant data protection documentation applicable to the specific Services purchased by Customer, as updated from time to time, and accessible via The Supplier’s webpage (accessible via [ link ]), or as otherwise made reasonably available by The Supplier.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“DCC Group” means the Supplier and other members of DCC PLC engaged in the Processing of Personal Data.
‘’Fleet’’ means the Customer’s vehicles or assets to be tracked via the Services.
‘’Flexible Pay Customer’’ means a customer who purchases the Hardware and then avails of the Services on a rolling monthly basis and who pays monthly in advance by direct debit. ‘’Force Majeure Event’’ means an event, or a series of related events, that is outside the reasonable control of the Party affected (including power failures, industrial disputes, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
‘’Hardware’’ means vehicle tracking equipment and associated peripherals which may or may not include SIM card and network airtime and data collection device.
‘’Initial Term’’ the first time period of a grant of a licence to use the Product and paid for by the Customer as set out in the Application Form.
‘’Installation’’ means fitting the Hardware into the Fleet.
‘’Intellectual Property’’ means any patent, registered or unregistered design right, trade mark or other proprietary rights inherent in the Products any copyrights and database rights, all other similar or equivalent intellectual or commercial rights or property subsisting under the laws of each and every jurisdiction throughout the world whether registered or not, and whether vested, contingent or future and all reversions, renewals, revivals and extensions of any of the foregoing, and all rights under licences, consents, orders, statutes or otherwise in relation to any of the foregoing.
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
‘’Location Data’’ means data on the geographical position of the Fleet and other messages sent to or by the Fleet.
‘’Mobile Communication Services’’ means the mobile electronic communication services used for transmitting Location Data.
‘’Prices’’ means the price:
a) for the Products and the Services set out in the Application Form; or
b) as agreed between the Customer and the Supplier; or
c) as published on the Supplier’s website from time to time; or
d) as set out in the Charges Schedule from time to time;
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
‘’Products’’ – means the Hardware which is purchased or rented by the Customer and where applicable the Software.
‘’Services’’ – means the services as agreed with the Customer from time to time and set out in the relevant Application Form.
‘’SIM’’ – means Subscriber Identity Module card providing network airtime.
‘’Software’’ – means the Supplier’s proprietary application software and third party licensed software where applicable in existence at the commencement of the Contract or developed as a product of the Services.
“Sub–processor” means any Processor engaged by the Supplier or a member of the DCC Group.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
‘’Supplier’’ means Fuel Card Services Limited, a limited company incorporated in England and Wales having its registered office at Alexandra House, Redvers Close, Lawnswood Business Park, Leeds, LS16 6QY Registration number 2107821
‘’Tele-gence’’ is a brand of the Supplier.
‘’Tele-gence Platform’’ means the IT system that runs the Service
‘’Terms’’ means this Agreement along with the Application Form (as approved by the Supplier) and any documents incorporated into this Agreement by reference such as the Charges Schedule.
‘’Termination Fee’’ means an amount equivalent to the Prices payable by the Customer to the Supplier for the Services for three months or otherwise as set out in the Application Form
‘’Website’’ means the content (including all and any displayed materials and graphics such as databases, maps, photographs, and other images) of the Supplier websites at www.fuelcardservices.co.uk and www.tele-gence.com which shall contain the Data Reports.
2. CONTRACT TERMS
2.1 Each Application Form for Products given by the Customer to the Supplier will be deemed to be an offer by the Customer to purchase or rent Products from the Supplier subject to these Terms. No contract is created between the Customer and the Supplier until the Customer’s Application Form has been approved by the Supplier, such approval to be notified to the Customer in writing (by email).
2.2Use of the Products and/or the Services will, in any event, constitute acceptance of these Terms by the Customer and a Contract will come into force between the Parties on the basis of these Terms.
3. INSTALLATION AND DELIVERY
3.1 Unless otherwise agreed in writing:
3.1.1 All Hardware will be delivered by the Supplier to the Customer’s premises set out on the Application Form or to such other address as may be agreed in writing by the Parties.
3.1.2 Risk in the Hardware will pass from the Supplier to the Customer when the Products are delivered to, or where applicable collected by, the Customer.
3.1.3Where the Customer installs the Hardware or appoints another person to install the Hardware, the Supplier shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of any negligence or failure to comply with the Supplier’s instructions in installing the Hardware.
3.1.4 where the Customer requests Installation of the Hardware by the Supplier an Installation date will be agreed with the Customer and the Installation may be performed by a third party engaged by the Supplier. Without prejudice to the provisions of the Consumer Contracts Regulations (when a sale or provision of a service to a consumer), where the Customer cancels an arranged Installation with less than twenty-four (24) hours’ notice, or otherwise fails to present the vehicle at the agreed date, time or place of Installation the Supplier may charge the Customer a late cancellation charge of one hundred pounds (£100) per vehicle as amended from time to time to cover the Supplier’s reasonable wasted costs in making staff and materials available.
3.2 Where the Customer purchases the Hardware from the Supplier, title to the Hardware (excluding where applicable, the SIM card) will pass from the Supplier to the Customer upon the later of:
3.2.1 delivery of the Hardware; and
3.2.2 receipt by the Supplier of all amounts due from the Customer to the Supplier under any Contract or other agreement.
3.2.3 Until title to the Hardware (excluding where applicable Firmware and SIM card) has passed to the Customer:
3.2.4 the Customer will hold the Hardware as bailee of the Supplier;
3.2.5 the Customer will as applicable: (i) store the Hardware in a secure, safe, dry and clean environment separately from other products and goods; (ii) ensure that the Hardware is easily identifiable as belonging to the Supplier; (iii) not deface, destroy, alter or obscure any identifying mark on the Hardware or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Hardware; and (v) deliver up the Hardware to the Supplier upon demand.
3.2.6 Where a Customer has not paid for the Hardware, the Customer’s right to possession of the Hardware shall terminate immediately in the event of:
3.2.7 the Customer being the subject of a bankruptcy order or it making an arrangement or composition with its creditors, or it entering into any form of liquidation or other form of insolvency as within the meaning of section 123 of the Insolvency Act 1986;
3.2.8 the Customer ceases to trade; or
3.2.9 the Customer seeks to or does encumber in any way the Hardware.
3.3 The Supplier may bring an action for the price of the Hardware, and any other amounts due under a Contract, notwithstanding that title to the Hardware has not passed to Customer.
- CUSTOMER’S USE OF THE PRODUCTS The Customer shall use the Products solely for their intended purpose, in a careful and proper manner in compliance with the Supplier’s instructions and specifications and, in particular, acknowledges the need to familiarise itself with the impact of the use of the Products and Services on Personal Data, for example by way of a data privacy impact assessment and other similar controls required under Data Protection Laws and Regulations.
- CHARGES AND PAYMENT
5.1 The applicable Prices in respect of the Services provided to the Customer by the Supplier shall be as set out in the Application Form.
5.2 Each purchase of Services by the Customer under Application Form shall be subject to these Terms. In the event of a conflict between the provisions of these Terms and any Sales Order Confirmation, these Terms shall prevail.
5.3 The Customer shall pay the Prices, via direct debit, to the Supplier in accordance with this clause and as specified in the Application Form. Unless otherwise specified in the Application Form, payment of all amounts due shall be made by the Customer by direct debit within 14 days of the date of invoice.
5.4 All Prices indicated in marketing material and on price lists or otherwise payable under a Contract are exclusive of all value-added and other taxes and duties applicable to the sale, licensing and supply of the Products or provision of the Services which will be payable by the Customer.
5.5 If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract on or before the due date, the Supplier may claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
5.6 Unless agreed otherwise in writing, all Prices can be changed by the Supplier upon giving the Customer 30 days’ written notice.
5.7 The Customer shall make all payments properly due under a Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
6. WARRANTY
6.1.The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (“Warranty Period”), the Products shall:
7.1.1 conform in all material respects with their description;
7.1.2 be free from material defects in design, material and workmanship;
7.1.3 be of satisfactory quality (within the meaning of the Consumer Rights Act 2015); and
7.1.4 be fit for any purpose held out by the Supplier.
7.2 Subject to clause 7.3, if:
7.2.1 the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 7.11;
7.2.2 the Supplier is given a reasonable opportunity of examining such Products; and
7.2.3 the Customer (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Products, or refund the price paid for the defective Products in full (where the Customer has purchased such Products).
7.3 The Supplier shall not be liable for the Products’ failure to comply with the warranty in clause 7.1 if:
7.3.1 the Customer makes any further use of such Products after giving a notice in accordance with clause 7.2;
7.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice;
7.3.3 the Customer alters or repairs such Products without the written consent of the Supplier;
7.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
7.4 The Supplier does not warrant that:
7.4.1 the Customer’s use of the Products will be uninterrupted or error free; nor that the Products or Services will meet the Customer’s requirements;
7.4.2 the Customer’s receipt or use of the Products or Services will ensure its compliance with, or satisfaction of, any regulatory, statutory or any other obligations; and
7.4.3 the Products or Services will be free from any delays, delivery failures, or any other loss of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Products and Services may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities; and
7.4.4 the Products and Services differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
7.5 Except as provided in this clause 7, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in this clause 7.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services or the Products (including the Hardware and Data Reports) shall be owned by the Supplier.
8.2 In respect of any third party Intellectual Property Rights in the Services or the Products, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
9.3 The Supplier owns all data (excluding Personal Data) generated by or related to the operation or performance of the Services (including the Data Reports and Location Data).
8.4 The Customer owns all data provided by or on behalf of the Customer to the Supplier in connection with the Services. The Supplier may use this data as required for the purpose of performing the Services.
8.5 The Customer authorizes the Supplier to retain and use a copy of the data referred to clause 8.4 , in anonymized aggregated form (such that the identity of the Customer and any Data Subject is not ascertainable) for the purpose of carrying out data analytics in relation to the services provided to its customers and otherwise developing new products and services (Statistical Data).
8.6 The Customer hereby grants the Supplier a non-exclusive, royalty free, fully-paid, irrevocable worldwide right and licence to access, review, analyse, use, manipulate, copy, and modify the Statistical Data for its own purposes, including but not limited to using the information to produce and distribute reports, analyses and data based upon the Statistical Data. The Supplier shall not use for its own purposes or disclose to any third parties Statistical Data that identifies the Customer or any its vehicles. The foregoing restriction shall not apply to disclosures of Statistical Data that are:
8.6.1 required by law in response to request from law enforcement authorities;
8.6.2 made in connection with a court order or other similar demand;
8.6.3 made in connection with a contemplated merger, acquisition or similar transaction;
8.6.4 made to the Supplier’s Affiliates or related companies; or
9.6.5 made to the Supplier’s service providers for delivering the Services, on behalf of the Supplier.
- PERSONAL DATA
9.1The parties acknowledge and agree that with regard to the Processing of Personal Data, the Customer is the Controller, the Supplier is the Processor and that the Supplier or members of the DCC Group will engage Sub-processors pursuant to the requirements regarding Sub-processors below.
9.2 Customer shall, in its use of the Services or Products, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. In particular and without prejudice to any other obligations to comply with Data Protection Laws and Regulations, the Customer shall take appropriate steps to ensure that any individual whose data rights may be affected by the Customer’s use of the Products or Services has been made aware of the use of that Personal Data and the grounds under which the Customer uses that Personal Data.
9.3 The Supplier shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Sales Order Confirmation Form(s); (ii) Processing initiated by any authorised users of the Services or Products; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
9.4 The subject-matter of Processing of Personal Data by the Supplier is the performance of the Services and provision of the Products pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to the Agreement.
9.5 The Supplier shall, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject to access, correct or delete that person’s Personal Data or if a Data Subject objects to the Processing thereof (“Data Subject Request”). The Supplier shall not respond to a Data Subject Request without Customer’s prior written consent except to confirm that such request relates to Customer to which Customer hereby agrees. To the extent Customer, in its use of the Services or the Products, does not have the ability to address a Data Subject Request, The Supplier shall upon Customer’s request provide commercially reasonable assistance to facilitate such Data Subject Request to the extent The Supplier is legally permitted to do so and provided that such Data Subject Request is exercised in accordance with Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from the Supplier’s provision of such assistance.
9.6 The Supplier shall, to the extent legally permitted, promptly notify Customer if the Supplier receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, The Supplier shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services or the Products, does not have the ability to address a Data Subject Request, The Supplier shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent The Supplier is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from the Supplier’s provision of such assistance.
9.7The Supplier shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. The Supplier shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
9.8The Supplier shall take commercially reasonable steps to ensure the reliability of any the Supplier’s personnel engaged in the Processing of Personal Data.
9.9 The Supplier shall ensure the Supplier’s access to Personal Data is limited to those personnel performing Services or providing Products in accordance with the Agreement.
9.10 Customer acknowledges and agrees that (a) the Supplier’s Affiliates may be retained as Sub-processors; and (b) the Supplier and the Supplier’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services or Products. The Supplier or the Supplier Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Services or Products provided by such Sub-processor.
9.11 The Supplier shall make available to Customer the current list of Sub-processors for the Services or Products. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location (“Infrastructure and Sub-processor Documentation”). Customer may find on the Supplier’s webpage (also accessible via [link])Data Protection Documentation. The Supplier shall provide notification of a new Sub-processor(s) before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the applicable Services.
9.12 Customer may object to the Supplier’s use of a new Sub-processor by notifying the Supplier promptly in writing within ten (10) business days after receipt of the Supplier’s notice in accordance with the mechanism set out in Section 5.2. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, the Supplier will use reasonable efforts to make available to Customer a change in the Services or Products or recommend a commercially reasonable change to Customer’s configuration or use of the Services or Products to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If The Supplier is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Sales Order Confirmation Form(s) with respect only to those Services or Products which cannot be provided by the Supplier without the use of the objected-to new Sub-processor by providing written notice to the Supplier. The Supplier will refund Customer any prepaid fees covering the remainder of the term of such Sales Order Confirmation Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
9.13The Supplier shall be liable for the acts and omissions of its Sub-processors to the same extent the Supplier would be liable if performing the services of each Sub-processor directly under the terms of the Agreement, except as otherwise set forth in the Agreement.
9.14 The Supplier shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the Data Protection Documentation. The Supplier regularly monitors compliance with these measures. The Supplier will not materially decrease the overall security of the Services during a subscription term.
9.15 The Supplier has obtained the third-party certifications and audits set forth in the Data Protection Documentation. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, the Supplier shall make available to Customer that is not a competitor of the Supplier (or Customer’s independent, third-party auditor that is not a competitor of the Supplier) a copy of the Supplier’s then most recent third-party audits or certifications, as applicable.
9.16 Upon Customer’s request, the Supplier shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services or Products, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to the Supplier. The Supplier shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 11.2 of the Agreement, to the extent required under the GDPR.
9.17 The Supplier maintains security incident management policies and procedures specified in the Data Protection Documentation and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by the Supplier or its Sub-processors of which the Supplier becomes aware (a “Customer Data Incident”). The Supplier shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as the Supplier deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within the Supplier’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s authorised users.
9.18. The Supplier shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in the Data Protection Documentation.
9.19 The parties agree that the Customer shall, when carrying out an on-site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on the Supplier and its Sub-Processors.
- CONFIDENTIALITY Each Party agrees that for the duration of this Contract and for a subsequent period of three years they will at all times keep any Confidential Information of the other Party as confidential and shall not permit the same to be copied, used, disclosed or disposed of except in accordance with this Contract. The provisions of this clause 14 shall not apply to Confidential Information which is already in the public domain or becomes so at a future date other than by breach of this Contract.
- LIMITATION OF LIABILITY
11.1 Nothing in this Agreement or any Contract shall be deemed to exclude or limit the Supplier’s liability in respect of:
11.1.1 death or personal injury resulting from negligence;
11.1.2 fraud or fraudulent misrepresentation; or
11.1.3 loss or damage caused by wilful intent or gross negligence of the Supplier or its officers, employees, agents, or contractors.
11.2 Subject to clause 11.1, in no event, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Contract, shall the Supplier be liable for any loss of profits, income, revenue, use, production or anticipated savings, loss of business, contracts or commercial opportunities, loss of or damage to goodwill or reputation, any loss or corruption of any data, database or software or in respect of any special, indirect or consequential loss or damage whatsoever.
11.3 Subject to clauses 11.2 and 11.3, the Supplier’s maximum aggregate liability under the Contract or otherwise shall be limited to the net price paid by the Customer in the twelve month period (or such lesser number of months that have expired if the liability arises in the first twelve months of the Contract) preceding the date on which the loss or damage occurred.
11.4 If a Party is prevented or delayed in the performance of any of its obligations under the Contract by a Force Majeure Event, then that Party will be excused from the performance or punctual performance, as the case may be, of its obligation, to the extent that such Force Majeure Event continues and agrees to use all reasonable endeavours to overcome or work around the Force Majeure Event so as to be able to perform its obligations under the Contract.12. TERM AND TERMINATION
12.1 The Contract will come into force on the Commencement Date, and will continue in force until:
12.1.1 for a fixed term Contract including the supply of Products and Services, the later of completion of: (i) performance of all Services and supply of all Products as set out in the Application Form; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract;
12.1.2 for a fixed term Contract for rental of the Products and the supply of Services, the later of completion of: (i) the relevant rental period as set out in the Application Form; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract; or
12.1.3 for a Flexible Pay Customer Contract, when terminated by either Party and, in the event of termination by the Customer, payment of the Termination Fee.
12.2 For any fixed term contract , if neither party terminates the Contract, the Contract shall automatically continue from the expiry of the original fixed term until the next following anniversary of the Commencement Date until terminated be either party on three months prior written notice such notice to expire no earlier than the expiry date of the fixed term set out in the Application Form.
12.3 The Supplier may, without prejudice to any of its other rights arising under this Contract, on giving written notice, terminate the Contract:
12.3.1 on not less than 28 calendar days’ notice, such notice to expire on the last day of any calendar month; or
12.3.2 with immediate effect, if:
12.3.2.1 the Customer fails to observe or perform any material term or condition hereof, including in any event non-payment, and such default or breach (if capable of remedy) shall not be remedied within 14 calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; or
12.3.2.2 any of the following events occur: (i) the presentation of a petition for winding up of the Customer; (ii) the Customer is the subject of an order or an effective resolution is passed for winding up the Customer; (iii) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the Customer; (iv) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking of the Customer; (v) the Customer making a composition or arrangement with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (vi) the Customer goes into liquidation; (vii) the Customer becoming unable to pay its debts or otherwise becoming insolvent, or (viii) the Customer ceasing, or threatening to cease, to carry on business; or
12.3.2.3 there has been any delay or failure in performance under the Contract resulting from any event of Force Majeure, which delay or failure shall have continued for a period of three months.
12.4 In the event of termination in accordance with clause 12.3, the Customer shall pay any unpaid fees covering the remainder of the Initial Term and any subsequent Renewal Period.
12.5 In event that a Flexible Pay Customer gives notice to terminate its Contract with the Supplier, the Flexible Pay Customer shall pay the Supplier the Termination Fee in accordance with the payment terms set out in clause 5.
12.6 Upon the expiry of the Term where Products are rented, however arising, the Customer will continue to be charged for the Services until the Hardware is returned to Supplier. In the event that a Customer confirms that they are not able to return the Hardware to the Supplier within sixty (30) calendar days of the expiry or termination of the Services, the Customer shall be liable pay the Supplier for the value of the Products.13. GENERAL
13.1 If any provision of these Terms or the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of these Terms or the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provision will be deemed to be deleted).
13.2 Contracts or this Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.
13.3 The Supplier shall be entitled to amend these Terms by publication on the Supplier’s website, which amendments shall enter into force on the date that the Customer is notified thereof and apply to all Contracts entered into after that date.
13.4 The Supplier may freely assign its rights and obligations under these Terms or the Contract without the Customer’s consent. Save as expressly provided in a Contract, the Customer may not without the prior written consent of the Supplier assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under these Terms or the Contract.
13.5 Each Contract is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party save for any third party software sub-licensing provisions. The right of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to a Contract is not subject to the consent of any third party.
13.6 The Contract constitutes the entire agreement between the Parties in relation to its subject matter, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of that subject matter, provided always that the usage of the Website by the Customer shall be governed by the Website Terms and Conditions.
13.7 Failure or delay by either Party in enforcing or partially enforcing any provision of this Contract will not be construed as a waiver of any of its rights under this Contract. Any waiver by one Party of any breach of, or any default under, any provision of the Contract by the other Party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the Parties submit to the exclusive jurisdiction of the English courts.
May 2018
