Standard Terms and Conditions for the provision of Services
1 Interpretation
1.1 The following definitions and rules of interpretation apply in these conditions.
1.2 Definitions
Acceptable Use Policy: Veritas Clouds policy for the use of Internet-related services, as set out on its website and as may be revised by Veritas Cloud from time to time. Should this also say and telecommunication service or all licenced services
Acceptance Tests: the acceptance tests, as set out in or referred to in the Contract. ????
Affiliates: a subsidiary or holding company (both as defined in section 1159 and Schedule 6 of the Companies Act 2006) of any party to this Contract from time to time.
Ancillary Equipment: any equipment, apparatus, software, systems and cabling provided by Veritas Cloud to provide a Service to the Customer.
Applicable Law: all applicable laws, statutes, regulations and codes from time to time in force.
Authorisation: Veritas Cloud’s authorisation to provide communications networks and services pursuant to the OFCOM general authorisation regime.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Cancellation Charge: the charge payable by the Customer to Veritas Cloud if the Customer cancels the contract in accordance with clause 23, as set out in the relevant Service Schedule.
Charges: the charges, including Usage Charges, Recurring Charges, Installation Charges and Ancillary Charges (as set out in the Order), payable by the Customer for the supply of the Services in accordance with clause 14.
Commencement Date: has the meaning given in clause 2.3.
Conditions: these terms and conditions as amended from time to time in accordance with clause 27.8.
Contract: the contract between Veritas Cloud and the Customer for the supply of Services in accordance with clause 2, which includes these Conditions, the PID and any Service Terms.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control will be construed accordingly.
Customer: the person or firm who purchases Services from Veritas Cloud.
Customer Equipment: any equipment or other thing used in connection with the Services including (but without limitation) telecommunications apparatus which is already owned or provided by the Customer and not by Veritas Cloud under the Contract.
Customer’s Premises: the address of the Customer’s premises where Services are to be provided, as set out in the Order.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time including the Data Protection Act 2018 (and any regulations made thereunder), the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/2426), the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by any Data Protection Supervisory Authority which are applicable to a party.
Dispute: has the meaning given to it by clause 16.1.
Dual Running: the simultaneous running (for the duration of the Implementation Period unless otherwise mutually agreed) of the existing Customer telecommunications equipment and/or services alongside the Equipment and/or Services to be delivered by Veritas Cloud under the Contract.
Early Termination Charge: unless otherwise defined in the Service Terms or Order, the termination charge will be 100% of all charges due until the expiry of the Initial Term or Renewal Term of the contract. This being equal to a reasonable pre-estimate of our administration costs, expenses, lost revenue to include average call expenditure and any other loss Veritas Cloud may suffer as a consequence of the cancellation prior to the end of the initial or renewal term.
Equipment: has the meaning given to it by clause 5.1.
Force Majeure Event: has the meaning given to it in clause 25.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Group: in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.
Implementation Period: the period following Commencement date but prior to the Start Date, has the meaning given to it by clause 8.
Initial Term: the minimum period during which the Customer contracts with Veritas Cloud for the provision of the Equipment and/or Services. The period from and including the Start Date for the duration as set out in the Order which shall not be less than 36 months unless otherwise stated or, if not specified in the Order, a default period of 36 months.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Network: Veritas Cloud’s telecommunications network and equipment used to provide the Services.
Order: the Customer’s order for the supply of Services, as set out in the Veritas Cloud Service Agreement.
Personal Data: the personal data provided by the Customer to Veritas Cloud for the purposes of providing the Services (including your name, contact details, and banking details).
PID: a project initiation document (if any) signed by Veritas Cloud and the Customer setting out the additional details of the methodology for the Implementation Services.
Previous Service Provider: a third party that provides the Customer with telecommunications equipment and/or services prior to Veritas Cloud.
Rate of CPI: the consumer price index percentage change over 12 months announced by the Office for National Statistics (or similar body or measure).
Renewal Term: each period following the Initial Term and equal in duration to the Initial Term during which this Contract continues as provided in clause 3.2.
Rental Equipment: any equipment, apparatus, software, systems and cabling provided by Veritas Cloud and rented by the Customer for the duration of the Services to which such equipment, apparatus, software, systems and cabling relate.
Sale Equipment: any equipment, apparatus, software, systems and cabling sold by Veritas Cloud to the Customer.
Services: the services, including the provision of Ancillary Equipment (if applicable), supplied by Veritas Cloud to the Customer as set out in the Service Order.
Service Terms: means Veritas Clouds terms and conditions for specific products and/or services that are to be provided by Veritas Cloud to the Customer pursuant to the Customer Agreement;
Site(s): means the Customer’s premises set out in the Contract, at which the Equipment and/or Services are to be provided, and such other premises as may be added from time to time, with the written agreement of the parties
Start Date: the final date on which the supply of Services commences upon completion of the Implementation Period.
Supplier: means the supplier from whom Veritas Cloud obtains the Equipment and/or facilities to provide the Services from time to time pursuant to a licence, contract or otherwise;
Supplier Materials: has the meaning given in clause 13.1.18.
1.3 Interpretation
1.3.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.3.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.3.4 Any words following the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3.5 A reference to writing or written includes email.
2 Basis of Contract
2.1 All Orders for Services concluded under these Conditions will be on a business-to-business basis and all Services purchased hereunder are for business purposes only.
2.2 The Order constitutes an offer by the Customer to purchase Services and/or Equipment in accordance with these Conditions.
2.3 The Order will only be deemed to be accepted by Veritas Cloud on the earlier of: (i) Veritas Cloud issuing written acceptance of the Order either by electronic e-sign or signed by a Veritas Cloud authorised signatory; or (ii) Veritas Cloud’s commencement or execution of work pursuant to the Order , at which point the Contract shall come into existence in accordance with these Conditions (“Commencement Date “).2.4 It is the Customer’s responsibility to evaluate the Services and/or Equipment being purchased and to satisfy itself that the Services and/or Equipment referred to in the Contract meets the Customer’s requirements, prior to submitting an Order to Veritas Cloud. Upon Veritas Cloud’s acceptance of the Order the Contract is formed and the Customer will be bound to purchase the Services and/or Equipment referred to in the Order .For the avoidance of any doubt, a Contract is formed once an Order has been accepted by Veritas Cloud without the need for the Customer to sign anything as just by submitting an Order shall be deemed an undisputable intention on the part of the Customer to be bound by these Conditions. Verbally or written service use constitutes acceptance of service
2.5 Any descriptive matter or advertising issued by Veritas Cloud and any illustrations or descriptions of the Services contained in Veritas Clouds catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They do not constitute contractual offers capable of acceptance and will not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. These Conditions are the only terms and conditions upon which Veritas Clouds is prepared to deal with Customers and they shall govern the Contract to the entire exclusion of all other terms and conditions. For the avoidance of doubt, the Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Order shall not govern the Contract. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Veritas Cloud unless in writing and signed by a duly authorised representative of Veritas Cloud.
2.7 Where the Order includes Equipment to be procured by Veritas Cloud from the Supplier, the Customer agrees that the terms and conditions of the Supplier shall apply Mutatis Mutandis as if between the Customer and Veritas Cloud. In the event of a conflict between these Conditions and those of the Supplier, then these Conditions shall prevail save in the event that the conditions in conflict pertain specifically to obligations to the Supplier or relate to the Equipment being provided by the Supplier. Subject to the above in the case of conflict or ambiguity, the order of precedence for the Contract and any documents attached to or referred to in it will be as following, in descending order of importance:
– 2.7.1 the Order or addendums, including, but not limited to, the PID;
– 2.7.2 any Special Conditions;
– 2.7.3 these Terms and Conditions; and
– 2.7.4 any documents attached or referred to in the Contract.
2.8 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract will be binding on Veritas Cloud unless in writing and signed by a duly authorised representative of Veritas Cloud.
2.9 Any error or omission in any sales literature, Order, quotation, price list, acceptance of offer, invoice or other document or information issued by Veritas Cloud will be subject to correction without any liability on the part of Veritas Cloud.
2.10 Any quotation given by Veritas Cloud will not constitute an offer and is only valid for a period of 30 days from its date of issue unless stated otherwise in writing on the quotation. Prices shown in any such materials may be subject to change at any time prior to the entry by Veritas Cloud and the Customer into a binding Contract. Veritas Cloud may adjust the prices of Services and/or Equipment in line with the Consumer Price Index (CPI) rate of inflation and the Customer agreed to such prices adjustment.
2.11 All quotations shall be in Pounds Sterling (GBP), unless the parties have agreed in writing that the quotation will be provided in US Dollars (USD) or in Euros (EUR). Veritas Cloud may subsequently adjust the quoted charges in the event of any fluctuations in the GBP-USD or the GBP-EUR or the USD-EUR exchange rate at the point of concluding the Contract.
2.12 Veritas Cloud reserves the right to withdraw or amend any quotation prior to the Contract.
2.13 Veritas Cloud reserves the right to withdraw or amend any quotation following the Contract where:
- Equipment and/or Services are withdrawn or discontinued by the Supplier;
- the Supplier increases the charges for Equipment and/or Services to Veritas Cloud;
- specifications of Equipment and/or Services are varied by the Supplier; or
- in order to comply with any applicable laws, regulations or safety requirement.
3 Commencement and Duration
3.1 This Contract will commence on the date on which Veritas Cloud accepts the Customer’s Order in accordance with clause 2.3 (“Commencement Date “) and will continue unless terminated earlier due to Force Majeure Event or in accordance with clause 22, for the Initial Term.
3.2 The Contract will automatically renew at the end of the Initial Term and each Renewal Term for a further period equal to Initial Term unless otherwise terminated by either party on giving at least thirty (30) Business Days’ written notice to the other before the expiry of the then current Term or in accordance with clause 22, 23 or 27.8.
4 Additional Services and Revised Charges
4.1 The Customer may at any time request additional Services from Veritas Cloud or request a review of the Charges payable in respect of the Services.
4.2 Should Veritas Cloud agree to provide additional Services or revise the Charges payable, such additional Services and/or revised Charges will be set out in a new Order. The new Order will form a new Contract with Veritas Cloud, will be subject to these terms and conditions and will supersede the previous Contract.
4.3 The new Contract will commence on the Start Date of such additional Services and shall continue in respect of all existing and new Services in accordance with clause 3.1.
4.4 Once an Order has been accepted by Veritas Cloud, no amendment shall be made to it unless Veritas Cloud has given express verbal or written consent to the change and the change is in writing and signed by the parties (or their authorised representatives).
4.5 If, after an Order has been accepted by Veritas Cloud, the Customer wishes to change the Order, the Customer shall notify Veritas Cloud in writing of such by submitting details of the requested change to Veritas Cloud. Veritas Cloud may, at its sole discretion, accept changes to an Order after it has been agreed. For the avoidance of doubt, Veritas Cloud has no obligation to accept changes to an Order after it has accepted the Order. Veritas Cloud may charge for the time it spends assessing a request for change to an Order from the Customer on a time and materials basis. The Customer acknowledges and agrees that in the event the Customer wishes to change an Order after it has been accepted by Veritas Cloud, such change will be subject to the Customer reimbursing Veritas Cloud of all costs, charges and expenses incurred by Veritas Cloud in respect of the supply of Equipment and/or performance of Services or any part thereof up to the date of receipt by Veritas Cloud of the written notification of change from the Customer. Any change to an Order is subject to a minimum charge of 6% of the total Charges of the Order which amount the Customer agrees to represent a genuine estimate of Veritas Cloud’s loss together with Veritas Cloud’s costs of recovering Equipment delivered or in transit where applicable.
5 Equipment
5.1 Any Ancillary Equipment, Rental Equipment, Sale Equipment and/or Trial Equipment and for the avoidance of doubt excluding Customer Equipment (together “Equipment “) required for the provision of the Services will be set out in the Order.
5.2 Veritas Cloud reserves the right to amend or substitute the Equipment if required by any applicable statutory or regulatory requirement or to improve the provision of the Services, and Veritas Cloud will notify the Customer in any such event.
5.3 The Customer will:
– 5.3.1 use the Equipment only in connection with the Services, and for no other purpose;
– 5.3.2 use reasonable endeavours to keep the Equipment free from any loss or damage;
– 5.3.3 promptly notify Veritas Cloud of any malfunction, loss or damage to the Equipment;
– 5.3.4 not sell or loan the Equipment to any person or create any charge, lien or other encumbrance over the Equipment; and
– 5.3.5 insure the Equipment against loss or damage caused by accident or negligence of the Customer, or that of its employees, agents or subcontractors, with a reputable insurance firm to the full replacement value of the Equipment.
6 Surveys
6.1 Prior to the delivery of the Equipment, Veritas Cloud may, in its sole discretion, conduct a survey of the Customer’s Premises.
6.2 The survey will be based on the information available to Veritas Cloud at the time it conducts the survey and will:
– 6.2.1 confirm whether, in Veritas Cloud’s opinion, Veritas Cloud can provide the Equipment and/or Services in accordance with the Contract or whether any changes to the Contract will be required (including, without limitation, any changes to Customer Equipment, Equipment, Services and/or Charges); and
– 6.2.2 specify any technical requirements and any associated Charges.
6.3 Upon receipt of Customer’s approval of the results of the survey, which shall be deemed given if the Customer does not reject the results within 3 Business Days of the date they are issued by Veritas Cloud, the changes to the Contract set out in the survey results will apply and Veritas Cloud will issue confirmation of those changes in writing to the Customer.
6.4 Where the Customer rejects the results of the survey, the original Contract will be cancelled and will not be binding upon either party.
6.5 The Customer will bear all costs arising from or in connection with any surveys carried out pursuant to this clause 6.
7 Delivery of Equipment
7.1 Veritas Cloud will ensure that:
– 7.1.1 the Equipment is delivered to the Customer’s Premises in time for its scheduled installation or, if Veritas Cloud is not installing the Equipment, prior to the Start Date of the Services for which such Equipment is required;
– 7.1.2 each delivery of the Equipment is accompanied by a delivery note which shows the date of the Order and the type and quantity of Equipment. Veritas Cloud shall not be liable for any shortfalls in delivery or variation from Equipment specifications on delivery unless a claim in writing is made by the Customer within three (3) days of delivery.
7.2 Veritas Cloud will deliver the Equipment to the location set out in the Order or such other location as the parties may agree in writing (“Delivery Location“) after Veritas Cloud notifies the Customer that the Equipment is ready.
7.3 Delivery of the Equipment will be completed on the completion of unloading of the Equipment at the Delivery Location.
7.4 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. Veritas Cloud will not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer’s failure to provide Veritas Cloud with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
7.5 If the Customer fails to take delivery of the Equipment then except where such failure or delay is caused by a Force Majeure Event or by Veritas Clouds failure to comply with its obligations under the Contract in respect of the Equipment, the Equipment will be stored by Veritas Cloud and the Customer will be charged for all related costs and expenses lie the cost of the failed delivery in addition to any and all subsequent attempts (including insurance).
7.6 If ten (10) Business Days after Veritas Cloud attempted delivery of the Equipment the Customer has not taken delivery of the Equipment, Veritas Cloud may resell or otherwise dispose of part or all of the Equipment.
8 Implementation Services and Acceptance
8.1 Veritas Cloud will notify the Customer when it (or its supplier) has supplied, installed, configured and/or programmed the Customer Equipment, Equipment and/or Services. If expressly referred to in the Contract, the Customer will then perform the Acceptance Tests.
8.2 If the Customer discovers any material non-conformity in the installation, configuration and/or programming of the Customer Equipment, or the operation of the Equipment and/or Services when performing the Acceptance Tests, the Customer will notify Veritas Cloud of the same.
8.3 To the extent that such non-conformities will have, in Veritas Cloud’s reasonable opinion, a material detrimental effect on the Equipment and/or Services, Veritas Cloud will use reasonable endeavours to remedy such non-conformities.
8.4 Acceptance will take place on the earlier of:
– 8.4.1 The Customer’s written confirmation to Veritas Cloud that the Acceptance Tests have been performed and no material non-conformities have been discovered; or
– 8.4.2 5 Business Days from the date of Veritas Cloud’s notification to the Customer that it has completed the supply, installation, configuration and/or programming of the Customer Equipment, Equipment and/or the Services; or
– 8.4.3 immediately upon Veritas Cloud’s demonstration that any notified non-conformities will not, in Veritas Cloud’s reasonable opinion, have a detrimental effect on the Equipment and/or Services.
8.5 If the Customer when performing the Acceptance Tests notifies Veritas Cloud of a material non-conformity in the installation, configuration and/or programming of the Customer Equipment, or the operation of the Equipment and/or Services Veritas Cloud shall use reasonable endeavours to rectify the non-conformity within a personable time and acceptance shall take place 5 Business Days after the date on which the notified non-conformities were remedied.
9 Quality of Equipment
9.1 To the maximum extent permitted by law, Veritas Cloud’s warranties, conditions and other terms implied by statute or common law are limited to those set out in these Conditions, any documentation provided by Veritas Cloud and the Contract, all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is subject to the limit set out in these Conditions. Veritas Cloud warrants that on delivery the Equipment will work appropriately in conjunction with the related Services.
9.2 Veritas Cloud specifically excludes any implied or express representation, warranty or similar that the Equipment and/or Services supplied by Veritas Cloud will:
– 9.2.1 be fit to operate in conjunction with any hardware, software or systems other than with those that are specifically identified as being compatible in the Contract;
– 9.2.2 operate uninterrupted or error-free;
-9.2.3 be free from minor errors not materially affecting performance; or
– 9.2.4 have any program defects detected and/or corrected.
9.3 Veritas Cloud does not warrant that the Equipment and/or Services will prevent or restrict any fraudulent intrusion, hacking or similar and the Customer shall be responsible for putting in place adequate security measures to prevent the fraudulent use of the Equipment and/or the Services and the Customer’s other systems and processes, including without limitation hacking, toll fraud, rogue dialling or any other form of fraud that results in the Customer to incurring sums in addition to the Charges and/or Fees.
9.4 In respect of Equipment purchased by Veritas Cloud from a Supplier for resale to Customers, such Equipment is supplied by Veritas Cloud on the terms and conditions of use as defined by the relevant Supplier at the time of delivery. Veritas Cloud gives no warranty to the Customer in respect of any Equipment that is purchased by Veritas Cloud from a Supplier for resale to the Customer but shall take reasonable steps to assist Customer in pursuing warranty claims against the relevant Supplier.
9.5 Veritas Cloud will not be liable for the Equipment’s failure to comply with the warranty in clause 9.1 if:
– 9.5.1 the Customer makes any further use of such Equipment after giving a notice in accordance with clause 9.6.1;
– 9.5.2 the defect arises because the Customer failed to follow Veritas Cloud’s oral or written instructions as to the installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;
– 9.5.3 the Customer alters or repairs such Equipment without the written consent of Veritas Cloud;
– 9.5.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
– 9.5.5 the Equipment differs from the Order as a result of changes made to ensure they comply with applicable statutory or regulatory standards or to improve the provision of the Services.
9.6 Subject to clause 9.5, Veritas Cloud will, at its option, repair, replace or refund the price in full of any defective Ancillary Equipment, Rental Equipment or Trial Equipment, if:
– 9.6.1 the Customer gives notice in writing within a reasonable time of discovery that some or all of the Ancillary Equipment, Rental Equipment or Trial Equipment does not comply with the warranty set out in clause 9.1;
– 9.6.2 Veritas Cloud is given a reasonable opportunity of examining the Ancillary Equipment, Rental Equipment or Trial Equipment; and
– 9.6.3 the Customer (if asked to do so by Veritas Cloud) returns such Ancillary Equipment, Rental Equipment or Trial Equipment to Veritas Cloud’s place of business at the Customer’s cost.
9.7 The Customer may reject any Sale Equipment delivered to it that does not comply with clause 9.1, provided that:
– 9.7.1 notice of rejection is given to Veritas Cloud;
– 9.7.1 (a) in the case of a defect that is apparent on delivery, within five (5) Business Days of Delivery;
– 9.7.1 (b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent; and
– 9.7.2 none of the events listed in clause 9.5 apply.
9.8 If the Customer fails to give notice of rejection of the Sale Equipment in accordance with clause 9.7, it shall be deemed to have accepted the Sale Equipment.
9.9 Except as provided in this clause 10.4.2, Veritas Cloud will have no liability to the Customer in respect of the Equipment’s failure to comply with the warranty set out in clause 9.1.
9.10 The terms of these Conditions will apply to any repaired or replacement Equipment supplied by Veritas Cloud.
10 Title and Risk
10.1 The risk in the Equipment will pass to the Customer on delivery or collection by the Customer or Customer’s agent.
10.2 Title to the Ancillary Equipment, Rental Equipment and Trial Equipment will not pass to the Customer at any time.
10.3 Title to the Sale Equipment will not pass to the Customer until Veritas Cloud receives payment in full (in cash or cleared funds) for the Sale Equipment.
10.4 Until title to the Sale Equipment has passed to the Customer, the Customer must hold the Products on a fiduciary basis as Veritas Cloud’sbailee and the Customer will:
– 10.4.1 not remove, deface or obscure any identifying mark or packaging on or relating to the Sale Equipment;
– 10.4.2 maintain the Sale Equipment in satisfactory condition and keep it insured against all risks for its full price on Veritas Cloud’s behalf from the date of delivery. On request the Customer shall produce the policy of insurance to Veritas Cloud;
– 10.4.3 notify Veritas Cloud immediately if it becomes subject to any of the events listed in clause 22.1.2 to clause 22.1.4; and
– 10.4.4 give Veritas Cloud such information relating to the Sale Equipment as Veritas Cloud may require from time to time.
10.5 Until payment is received in full Veritas Cloud may, without prejudice to any other rights it may have, recover or resell any Equipment and/or associated material and may enter upon the Customer’s premises by its servants or agents for that purpose.
10.6 Within fourteen (14) calendar days of the date of termination, the Equipment must be returned in good working condition to the office of Veritas Cloud at the cost and risk of the Customer. If the Customer fails to return the Equipment when required to do so, Veritas Cloud reserves the right to charge the Customer a daily rental fee of £25 (or such other amount as may be notified to the Customer by the Company) this will be added to the monthly invoice until the Equipment is returned.
10.7 The Customer’s right to possession of the Ancillary Equipment, Rental Equipment and Trial Equipment shall terminate immediately if:
- the Customer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
- the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract or any other contract between Veritas Cloud and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Client ceases to trade; or
- the Customer encumbers or in any way charges any Equipment.
10.8 Veritas Cloud shall be entitled immediately after giving notice of Veritas Cloud’s intention to repossess, to enter upon Customer’s premises with such transport as may be necessary and repossess any Equipment to which Veritas Cloud has title.
11 Dual Running
11.1 The Customer will bear all costs arising from or in connection with Dual Running including failure to comply with clause 11.2.
11.2 The Customer hereby undertakes to notify and instruct the Previous Service Provider to cease the provision of any equipment and/or services which are replaced by the Equipment and/or Services at the end of the Implementation Period or such other period as the parties agree.
11.3 For the avoidance of doubt, Veritas Cloud excludes all loss, damage, costs, expenses and any other liability suffered or incurred by the Customer arising from or in connection with any delay in the provision of the Equipment and/or Services (including any need for the Previous Service Provider to continue providing any equipment and/or services which are to be replaced by the Equipment and/or Services) beyond the end of the Implementation Period (or such other period as the parties agree) to the extent that it is a delay caused directly or indirectly by:
– 11.3.1 failure by the Customer to comply with any of its obligations under the Contract;
– 11.3.2 an event falling under clause 25;
– 11.3.3 third party providers and/or local authorities due to any issues over rights of access for installation or with the supply of Equipment and/or Services;
– 11.3.4 any suspension of the provision of the Equipment and/or Services in accordance with the Contract;
– 11.3.5 any act or omission of the Customer, any member of the Customer’s Group or any of its or their employees, sub-contractors, agents and/or end-users;
– 11.3.6 any changes including any additions to the scope of the Equipment and/or Services to be provided; or
– 11.3.7 the execution of any contingency actions and/or changes to the Customer Agreement which are made in accordance with any change control procedure set out in the Contract.
12 Supply of Services
12.1 The Customer confirms that it has read the Order and has satisfied itself that the Services will meet its requirements.
12.2 Veritas Cloud will:
– 12.2.1 use all reasonable endeavours to supply the Services from the Start Date but time will not be of the essence for the performance of the Services. If Veritas Cloud, having used its reasonable endeavours fails to perform the Services within the agreed dates or timescales, such failure shall not constitute a breach of the Contract and the Customer shall not be entitled to treat the Contract as thereby repudiated or to rescind it, or claim compensation for such failure or for any consequential loss or damage resulting therefrom.
– 12.2.2 supply the Services using the reasonable care and skill to be expected from a competent provider of services of the same kind as the Services; and
– 12.2.3 supply Services to the Customer in accordance with the Order in all material respects.
12.3 Veritas Cloud reserves the right to withdraw or amend one of the Services provided under the Order if necessary to comply with Applicable Law or to take into account the withdrawal of or a significant change to the technology used to provide the Services, provided the amendment will not materially affect the nature or quality of the Services and provided Veritas Cloud notifies the Customer.
12.4 The Customer will obtain any third party or other consent required to allow Veritas Cloud to provide the Services.
12.5 If Veritas Cloud re-programmes any Customer Equipment in response to the Customer’s request, its costs of doing so will be paid by the Customer.
12.6 Veritas Cloud reserves the right to cancel a Contract prior to the Start Date or within a reasonable period of time thereafter where:
– 12.6.1 the Services cannot be supplied to, or installed at, a Site due to a geographic, practical or technical restraint; or
– 12.6.2 the cost of supplying or installing the Services at a Site is materially higher than the usual cost of providing the Services and the Customer does not agree to pay any additional charges requested by Veritas Cloud.
12.7 Veritas Cloud shall not be liable for any delay or failure to perform the Services that is caused by Force Majeure Event or the Customer’s failure to provide adequate instructions that are relevant to the performance of Services. If performance of the Contract is suspended at the request of or delayed through default of the Customer including, but without prejudice to the generality of the foregoing, refusal to accept performance of the Services, for a period of seven (7) days, Veritas Cloud shall be entitled to payment at the then prevailing rates for the Services already performed or ordered and any other additional costs thereby incurred and the Customer shall pay such sums immediately upon invoice. If Veritas Cloud’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay Veritas Cloud on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to Veritas Cloud confirming such costs, charges and losses to the Customer in writing.
13 Customer’s Obligations & Use of the Services
13.1 The Customer will:
– 13.1.1 ensure that the terms of the Order and any information it provides in the Order are complete and accurate;
– 13.1.2 co-operate with Veritas Cloud in all matters relating to the Services;
– 13.1.3 promptly notify Veritas Cloud providing Veritas Cloud with all information Veritas Cloud reasonably requires if the Customer experiences any problem or issue with the Services and where such problem or failure results from a failure or defect in the Services, the Customer will allow Veritas Cloud every opportunity to rectify the same and the Customer further agrees that it will not make or permit to be made any statement in any manner or on any medium or broadcast channel, which will or is reasonably likely to be detrimental to Veritas Cloud’s name or reputation or that of any products or services which Veritas Cloud sells or markets;
– 13.1.4 use the Services in accordance with all Applicable Laws (including health and safety laws), the Order, Veritas Cloud’s Acceptable Use Policy and any reasonable operating instructions provided by Veritas Cloud;
– 13.1.5 promptly install all upgrades, bug fixes, patched and other corrections relating to the Services made available from time to time;
– 13.1.6 provide Veritas Cloud, its employees, agents, consultants and subcontractors, with safe access to the Customer’s premises, office accommodation and other facilities as reasonably required by Veritas Cloud to provide the Services and ensure that working conditions at its premises are safe, secure and suitable;
– 13.1.7 provide Veritas Cloud with such information and materials as Veritas Cloud may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
– 13.1.8 prepare the Customer’s premises for the supply of the Services at the Customer’s expense;
– 13.1.9 if the Customer or any third party not under Veritas Cloud’s control does or omits to do anything (including allowing Veritas Cloud access to premises, parts thereof or any facilities), Veritas Cloud will have no liability for any resultant delay and the Customer will reimburse Veritas Cloud for any costs and losses which it incurs as a result.
– 13.1.10 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the Start Date;
– 13.1.11 ensure that the Customer Equipment is:
– 13.1.11 (a) in good working order; and
– 13.1.11 (b) compliant with Applicable Law,
– 13.1.12 be responsible for the security of their use of the Services, including:
– 13.1.12 (a) protecting all passwords following good practice from time to time in doing so and use its best endeavours to prevent unauthorised use of or access to the Services;
– 13.1.12 (b) the backing up of all data;
– 13.1.12 (c) employing appropriate security devices (including, but not limited to, virus checking software); and
– 13.1.12 (d) ensuring it has appropriate disaster recovery procedures in place,
– 13.1.13 not do or omit to do anything that will or might reasonably be expected to:
– 13.1.13 (a) disrupt or compromise the integrity of the Services, any network, or any other customer of Veritas Cloud;
– 13.1.13 (b) compromise the security of Veritas Cloud’s Network, the Equipment or the Services by accessing, storing, distributing or transmitting any viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
– 13.1.13 (c) cause Veritas Cloud to lose or breach its Authorisation; or
– 13.1.13 (d) cause damage to Veritas Cloud or either of their respective customers,
– 13.1.14 not use or access the Services:
– 13.1.14 (a) to send, communicate, knowingly receive, upload, download or use any material or make any calls that are offensive, abusive, indecent, defamatory, obscene, menacing, cause annoyance, inconvenience, needless anxiety or are intended to deceive;
– 13.1.14 (b) for any fraudulent, criminal, defamatory, harassing or tortious purpose, or to participate in or promote any other illegal activity;
– 13.1.14 (c) to breach, violate or infringe intellectual property, privacy or other rights, or misappropriate Veritas Cloud’s property or that of any third party;
– 13.1.14 (d) in a way which (in Veritas Cloud’s reasonable opinion) brings the name of Veritas Cloud into disrepute, or which places Veritas Cloud in breach of any Applicable Laws;
– 13.1.14 (e) to intentionally impair or attempt to impair, without authorisation, the operation of any computer, prevent or hinder access to any program or data held in any computer or to impair the operation of any such program or the reliability of any such data; or
– 13.1.14 (f) to transmit or broadcast unsolicited, or “junk” or “spam”, marketing or promotional materials or messages in breach of any Applicable Law;
– 13.1.15 not inspect, possess, use, copy, reverse engineer, or attempt to discover the source code of or used to create any program or other component of the Services, except as expressly permitted by Applicable Law;
– 13.1.16 not attempt to hack or gain unauthorised access to any network, environment, system or any network;
– 13.1.17 permit, allow or encourage an alternative supplier of the Services to override or bypass Veritas Cloud’s Services by any means; and
– 13.1.18 keep all materials, equipment, documents and other property of Veritas Cloud (“Supplier Materials “) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to Veritas Cloud, and not dispose of or use the Supplier Materials other than in accordance with Veritas Cloud’s written instructions or authorisation.
13.2 If Veritas Cloud’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default “):
– 13.2.1 without limiting or affecting any other right or remedy available to it, Veritas Cloud will have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Veritas Clou’s performance of any of its obligations;
– 13.2.2 Veritas Cloud will not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Veritas Cloud’s failure or delay to perform any of its obligations as set out in this clause 13.2; and
– 13.2.3 the Customer will reimburse Veritas Cloud on written demand for any costs or losses sustained or incurred by Veritas Cloud arising directly or indirectly from the Customer Default.
13.3 The customer will indemnify Veritas Cloud against all claims, proceedings or threatened proceedings from third parties and against any loss or damage suffered by us arising from any breach by the Customer of its obligations under the Contract, and for all costs and expenses reasonably incurred by Veritas Cloud in investigating and defending any such claims, proceedings or threatened proceedings.
- The Customer represents and warrants that:
- it has obtained all necessary approvals, consents and authorisations of third parties and governmental authorities, to the extent necessary, to enter into the Contract and to perform and carry out its obligations hereunder;
- the persons executing the Contract on its behalf have express authority to do so, and, in so doing, to bind the Customer;
- the execution, delivery, and performance of the Contract does not violate any provision of any law, charter, regulation applicable to it; and
- the execution, delivery and performance of the Contract has been duly authorised by all necessary corporate actions and the Contract is a valid and binding obligation of the Customer enforceable in accordance with its terms.
14 Charges and Payment
14.1 The Customer will pay the Charges for the Services as described in the Order as well as all other charges agreed between Veritas Cloud and the Customer or charged in accordance with these Conditions from time to time.
14.2 Veritas Cloud shall render to the Customer an invoice or series of invoices in Pounds Sterling, unless otherwise agreed that they shall be invoiced in GBP or other currencies if agreed, pursuant to the supply of Equipment and/or Services. The Customer will pay all invoices by direct debit within fourteen (14) days of the date of the invoice.. Invoices shall be payable in Pounds Sterling, unless otherwise agreed that they shall be payable in GBP or other currencies if agreed, by the due date of payment as stated on the invoice, which in any event shall be no later than fourteen (30) days unless uless outher terms have been agreed of the invoice date unless otherwise agreed in writing. The time stipulated for payment shall be of the essence of the Contract and failure to pay within the period specified shall, in the absence of a written explanation from the Customer that has been duly accepted by Veritas Cloud, render the Customer in material breach of the Contract. If the Customer cancels an active direct debit instruction following the Start Date, an additional administration fee of £6 (or such other amount as may be notified to the Customer by the Veritas Cloud from time to time) will be added to the monthly invoice until the direct debit instruction is reinstated.
14.3 Unless stated otherwise in the Contract, all Equipment shall be invoiced on the date of despatch to the Customer or collection by the Customer or his agent; and all Services shall be invoiced in full and in advance. Installation Charges shall be invoiced on or shortly after the Start Date. Recurring Charges shall commence from the Start Date and shall be payable in advance as set out in the Order.
14.4 Where the Services are comprised of more than one Service, the Charges in respect of each Service will become payable in accordance with this clause 14 with effect from the Start Date notwithstanding that other Services may not have reached their particular Start Date.
14.5 If the Customer’s payment is late, cancelled or dishonoured Veritas Cloud will charge the Customer a reasonable administration fee and the Customer will be responsible for such administration costs as well as all reasonable costs and expenses incurred by Veritas Cloud and its debt collection agents in seeking payment from the Customer.
14.6 All amounts payable to Veritas Cloud under the Contract:
– 14.6.1 are exclusive of VAT, which, if applicable, shall be added at the rate in force at the time of supply and the Customer will in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
– 14.6.2 will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
14.7 If the Customer in good faith disputes an invoice and wishes to withhold the disputed sum, the Customer must notify Veritas Cloud in writing of the dispute no more than 7 days after the date of the invoice and make payment of any undisputed amount in accordance with this clause 14. Any dispute of the kind referred to in this clause 14.7 will be resolved in accordance with clause 16
14.8 If the Customer fails to make a payment due to Veritas Cloud under the Contract by the due date, then, without limiting any other remedies available to Veritas Cloud whether hereunder or otherwise the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 14.8 will accrue each day at the greater of 4% a year above Bank of England Libor rate, and the rate from time to time applicable to High Court judgment debts. An additional administration charge of £100 may be applied.
14.9 Except where otherwise agreed in the Contract, Veritas Cloud may vary the Charges at any time upon 30 days verbal or written notice to the Customer.
14.10 Notwithstanding Clause 14.9 Veritas Cloud may increase the charges each year following the Commencement Date by the increase (if any) in the Rate of CPI plus 3.9%.
15 Disclaimer
15.1 Save for the warranties and conditions expressly set out in these Conditions, Veritas Cloud gives no warranty or condition regarding the Services and specifically gives no condition or warranty that the Services will be uninterrupted or timely, secure or error free.
15.2 The Customer acknowledges that Veritas Cloud accepts no responsibility or liability to the Customer or any third party for:
– 15.2.1 any pre-existing defects at the Customer’s Premises or of the Customer’s property;
– 15.2.2 any loss or corruption of data;
– 15.2.3 any computer viruses affecting the Customer’s computers or equipment including (but without limitation) Trojan horses or malware;
– 15.2.4 any failure of any third party system or machinery including (but without limitation) broadband, ISP or telephony connections or systems;
– 15.2.5 any failure by the Customer to maintain, duplicate or back-up copies of its computer systems and/or files (it being expressly agreed that it is the Customer’s responsibility to maintain such duplicate or back-up copies); or
– 15.2.6 the disposal of any computer systems, computer products or any waste product associated with the Services (save where Veritas Cloud expressly agreed to the contrary in writing upon payment of an agreed additional fee).
15.3 In respect of Equipment purchased by Veritas Cloud from a Supplier for resale to Customers, such Equipment are supplied by Veritas Cloud on the terms and conditions of use for such Equipment as defined by the relevant Supplier at the time of delivery. Veritas Cloud gives no warranty to the Customer in respect of any Equipment that is purchased by Veritas Cloud from a Supplier for resale to the Customer but shall take reasonable steps to assist Customer in pursuing warranty claims against the relevant Supplier.
16 Dispute Resolution Procedure
16.1 If a dispute arises out of or in connection with the Contract or its performance, validity or enforceability (Dispute), then, except as expressly provided in these Conditions , the parties will follow the procedure set out in this clause 16:
– 16.1.1 either party may give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, Veritas Cloud and the Customer will attempt in good faith to resolve the Dispute;
– 16.1.2 if Veritas Cloud and the Customer are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute will be referred to the Chief Executive Officer/ Chief Operating Officer of Veritas Cloud and Managing Director/ CEO of the Customer who will attempt in good faith to resolve it; and
16.2 if the Chief Executive Officer/ Chief Operating Officer of Veritas Cloud and Managing Director/ CEO of the Customer are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties agree that the Customer has the right to refer their dispute to the Communications and Internet Services Adjudication Scheme under the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 60 days of service of the Dispute Notice, the mediator will be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. Unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the ADR notice.
16.3 The commencement of mediation will not prevent the parties commencing or continuing court proceedings in relation any undefended debt or obligation and will not prevent the parties seeking injunctive or other emergency or interim relief from the Courts.
16.4 If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or ceases to participate in the mediation before the expiry of that 30 day period, or the mediation terminates before the expiry 60 days from the date of the Dispute Notice, the Dispute will be finally resolved by the courts of England and Wales.
17 Credit Limit/Security
17.1 Veritas Cloud reserves the right to carry out a credit check on the Customer at any time prior to or following acceptance of the Order.
17.2 Veritas Cloud reserves the right to impose a monthly financial limit on the Charges incurred by the Customer under the Contract (“Credit Limit “) on the Customer’s account proportionate to the amount of Charges payable under the Contract.
17.3 Veritas Cloud may amend the Credit Limit at any time upon written notice to the Customer.
17.4 If the Customer exceeds the imposed Credit Limit:
– 17.4.1 Veritas Cloud reserves the right to demand immediate payment of all unpaid Charges (whether invoiced or not); and
– 17.4.2 The Customer will remain responsible for all Charges incurred, including those exceeding the Credit Limit.
17.5 Veritas Cloud reserves the right to require the Customer to provide it with a deposit or other security as a condition of providing the Services. Veritas Cloud may retain this deposit or security until the Customer has paid all sums due to Veritas Cloud under the Contract.
17.6 No interest will be payable on any deposit or security held by Veritas Cloud.
18 Intellectual Property Rights
18.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) will be owned by Veritas Cloud and its Affiliates, save to the extent that any of the same contain Intellectual Property Rights owned by third parties.
18.2 Subject to clause 18.6, Veritas Cloud grants to the Customer, a non-exclusive, royalty-free, non-transferable licence to use Veritas Cloud’s Intellectual Property Rights within the United Kingdom, to such extent as is necessary to enable the Customer to receive and use the Services during the Contract in accordance with the terms of the Contract and any usage guidelines that Veritas Cloud may provide from time to time. If the Contract is terminated, this licence will automatically terminate.
18.3 The Customer will not sub-license, assign or otherwise transfer the rights granted by clause 18.2.
18.4 The Customer grants Veritas Cloud a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Veritas Cloud for the term of the Contract for the purpose of providing the Services to the Customer.
18.5 Notwithstanding clause 18.2, the Customer will not be entitled to use the name, trademark, trade name or any other proprietary identifying marks or symbols of Veritas Cloud or its Affiliates without Veritas Cloud’s prior written consent.
18.6 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services and/or Equipment and any associated documentation, the Customer’s use of any such Intellectual Property Rights is conditional on Veritas Cloud obtaining a written end-user licence (or sub-licence) from the relevant licensor on such terms as will entitle Veritas Cloud to license such rights to the Customer. In the event that the Services contain Intellectual Property Rights owned by third parties which Veritas Cloud is not entitled to sub-licence to the Customer, Veritas Cloud will use its reasonable endeavours to assist the Customer, at the Customer’s expense, in obtaining a licence to use those Intellectual Property Rights owned by third parties on terms that are acceptable to the Customer.
18.7 The Customer will not, and will procure that its personnel and subcontractors, do not do anything (whether by omission or commission) during the Contract or at any time thereafter to affect or imperil the validity of any Intellectual Property Rights owned, used or enjoyed by Veritas Cloud or its Affiliates.
18.8 The Customer agrees that Veritas Cloud may refer to the Customer as a customer of the Veritas Cloud in any of the Veritas Cloud’s marketing materials or on the Supplier’s website. The Customer hereby grants the Supplier a licence to use any of the Customer’s trade names and trademarks solely in connection with such marketing. The Supplier shall comply with any trademark usage guidelines in respect of such trademarks notified to the Supplier by the Customer in writing.
19 Data Protection and Data Processing
19.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 19 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
19.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Veritas Cloud is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
19.3 Without prejudice to the generality of clause 19.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to Veritas Cloud for the duration and purposes of the Contract.
19.4 Without prejudice to the generality of clause 19.1, Veritas Cloud will, in relation to any Personal Data processed in connection with the performance by Veritas Cloud of its obligations under the Contract:
– 19.4.1 process that Personal Data only on the written instructions of the Customer unless Veritas Cloud is required by UK law applicable to Veritas Cloud to process Personal Data (Applicable Data Processing Laws). Where Veritas Cloud is relying on UK law as the basis for processing Personal Data, Veritas Cloud will promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit Veritas Cloud from so notifying the Customer;
– 19.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
– 19.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
– 19.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
– 19.4.4 (a) the Customer or Veritas Cloud has provided appropriate safeguards in relation to the transfer;
– 19.4.4 (b) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
– 19.4.4 (c) Veritas Cloud complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
– 19.4.4 (d) Veritas Cloud complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
– 19.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
– 19.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach;
– 19.4.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
– 19.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 19; and
– 19.4.9 allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer, provided that the Customer gives Veritas Cloud at least [30] days’ prior written notice of each such audit and that each audit is carried out at the Customer’s cost, during business hours, so as to cause the minimum disruption to Veritas Cloud’s business and without the Customer or its auditor having any access to any data belonging to a person other than the Customer. Any materials disclosed during such audits and the results of and/or outputs from such audits will be kept confidential by the Customer and the provisions of clause 20 will apply to them.
19.5 The Customer authorises Veritas Cloud to engage Sub-Processors, Veritas Cloud will inform the Customer of any intended changes concerning the addition or replacement of Sub-Processors, thereby giving the Customer the opportunity to object to such changes. If the Customer objects to such a change the objection will act in good faith to find an alternative solution. If the parties fail to resolve the dispute within [60] days of referral the Customer will be entitled to terminate this Agreement by giving not less than [90] days’ written notice to that effect to Veritas Cloud.
19.6 If Veritas Cloud appoints a Sub-Processor, Veritas Cloud will put a written contract in place between Veritas Cloud and the Sub-Processor that specifies the Sub-Processor’s processing activities and imposes on the Sub-Processor the same (in substance) terms to those imposed on Veritas Cloud in this clause 19.
19.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 19 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which will apply when replaced by attachment to the Contract).
20 Confidentiality
20.1 It is expected that the parties will disclose to each other information relating to a party which is of a confidential and proprietary nature and each party recognises the value and importance of the protection of the other’s Confidential Information. All Confidential Information of a disclosing party disclosed to the recipient party shall remain the sole property of the disclosing party. Except as expressly allowed in these Conditions, both parties agree to protect the Confidential Information of the other party. The receiving party shall not disclose Confidential Information to any third party without the express written consent of the disclosing party.
20.2 Notwithstanding the above, each party may disclose the other party’s confidential information:
– 20.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party will ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 20; and
– 20.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
20.3 Neither party will use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
20.4 The terms of the Contract, the existence of, circumstances, facts and documents relating to any Dispute and the substance of all negotiations in connection with the Contract or any Dispute, are confidential to the parties and their advisers, who shall not disclose them to, or otherwise communicate them to, any third party other than:
– 20.4.1 to the parties’ respective auditors, insurers and lawyers on terms which preserve confidentiality; and
– 20.4.2 pursuant to an order of a court of competent jurisdiction, or pursuant to any proper order or demand made by any competent authority or body where they are under a legal or regulatory obligation to make such a disclosure; and
– 20.4.3 as far as necessary to implement and enforce any of the terms of the Contract. .
- The prohibitions contained in this clause shall not apply to information that:
- the parties have agreed in writing to disclose;
- is in the public domain other than as a result of a breach of this clause;
- is rightfully received by the receiving party from a third party not in breach of an obligation of confidentiality;
- was already known to the receiving party prior to the time of disclosure.
20.4.5 Subject to the above, the receiving party agrees to cease using any and all materials embodying Confidential Information of the disclosing party, and to promptly return such materials to the disclosing party upon request or to destroy it. This clause shall survive termination of the Contract.
21 Limitation of Liability
21.1 Nothing in the Contract limits any liability which cannot legally be limited, including (but not limited to) liability for:
– 21.1.1 death or personal injury caused by negligence; and
– 21.1.2 fraud or fraudulent misrepresentation.
21.2 Subject to clause 21.1, the following provisions set out the entire financial liability of Veritas Cloud (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
– 21.2.1 any breach of the Contract howsoever arising; and
– 21.2.2 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation, negligence) arising out of or in connection with the Contract.
21.3 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
21.4 Subject to clause 21.1 Veritas Cloud will not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) breach of statutory duty or otherwise, for any loss of profits, loss of business, loss of anticipated savings, loss of goodwill, loss of contract, loss or corruption of data or information, or any type of special, indirect or consequential loss whatsoever arising under or in connection with the Contract even if such loss was reasonably foreseeable or if the party has been advised of the possibility of incurring the same.
– 21.5 Subject to clause 21.1 and clause 21.4, Veritas Cloud’s total liability to the Customer under the Contract (whether in contract, tort (including negligence), breach of statutory duty or otherwise) will not exceed 50% of the total Charges paid or payable by the Customer to Veritas Cloud under this Contract during the preceding twelve months prior to the claim.
– 21.6 This clause 21 will survive termination of the Contract.
22 Termination
22.1 Without affecting any other right or remedy available to it, Veritas Cloud may terminate the Contract, or any one or more of the Services, with immediate effect by giving written notice to the Customer if:
– 22.1.1 the Customer commits a material breach of its obligations under the Contract, or breaches the terms of any one or more of the Services, and such breach is irremediable, or if such breach is remediable, fails to remedy that breach within thirty (30) days after receipt of notice in writing to do so;
– 22.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
– 22.1.3 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
– 22.1.4 the Customer’s financial position deteriorates to such an extent that in Veritas Cloud’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
– 22.1.5 the Customer fails to pay any amount due under the Contract on the due date for payment and fails to make payment within fourteen (14) days of notice requiring payment being served on the Customer;
– 22.1.6 there is a change of Control of the Customer;
– 22.1.7 the Customer does or allows to be done anything which in Veritas Cloud’s reasonable opinion will or may have the effect of jeopardising the operation of the Services, Equipment or any of Veritas Cloud’s or its Supplier’s other systems, equipment, services and/or the telecommunications network;
– 22.1.8 Veritas Cloud is unable to perform a material obligation under the Contract for six (6) months or more due to a Force Majeure Event;
– 22.1.9 Veritas Cloud reasonably suspects the Equipment and/or Services are being used for any illegal, improper, immoral, fraudulent or unlawful purpose, or in a manner prejudicial to the interests of the Customer and/or Veritas Cloud, or the Customer acts in a threatening or abusive manner; or
– 22.1.9 the Customer is in breach of clause 26.
22.2 Where the Contract is terminated by Veritas Cloud under any of the circumstances set out in clause 22.1 and Veritas Cloud has not completed the supply of Equipment and/or the performance of Services pursuant to the Contract, the Customer is nevertheless under the obligation to pay the full Charges for the Services and/or Equipment as if they have been fully provided.
22.3 Either party may terminate the Contract by giving the other party no less than thirty (30) days’ prior written notice. For the avoidance of doubt, the termination date is calculated thirty (30) days from the postmark date, email receipt date or facsimile receipt transmission date. If the Customer terminates the Contract under this clause it acknowledges and agrees that termination can only occur after and not before the end of the Initial Terms (which is minimum contract length), hence, it agrees to pay Veritas Cloud the full Charges for the Services and/or Equipment up to the end of the applicable Initial Terms and any non-cancellable costs actually incurred by Veritas Cloud. For the avoidance of doubt, Veritas Cloud shall be under no obligation to provide the Services and/or the Equipment until full payment has been received by Veritas Cloud in accordance with this clause.
22.4 If the Contract is terminated by the Customer due to Force Majeure or because Veritas Cloud commits a material breach of the Contract which is incapable of remedy, the total sums payable by the Customer shall be subject to any non-cancellable costs actually incurred by Veritas Cloud, including but not limited to set-up charges and any contracted Supplier and any other third party services or goods, and shall thereafter be equitably prorated for actual Services performed and/or Equipment supplied up to the date of termination with any unexpended funds previously paid by the Customer to Veritas Cloud being refunded to the Customer on condition that the Customer has provided a written request for any refundable amount within seven (7) days of the termination date. Veritas Cloud reserves the right not to refund any outstanding amount if the Customer fails to comply with these Conditions.
23 Cancellation
23.1 The Customer shall not be entitled to cancel an Order after it has been accepted by Veritas Cloud, unless Veritas Cloud has agreed to the cancellation in writing. The Customer may cancel the Contract or any individual Service subject to the Contract at any time after the Initial Term provided it gives at least thirty (30) Business Days’ written notice to Veritas Cloud before the expiry of the Initial Term or Renewal term (as the case may be). Notice should be given in writing using billing@veritascloud.co.uk only and, save for any cancellation pursuant to Clause 27.8, cannot be accepted more than 365 days before the end of the Initial Term or Renewal term.
23.2 Cancellation notice received other than specified in Clause 23.1 will not be accepted as written notice.
23.3 The Customer agrees and acknowledges that termination of the Contract or individual Services by the Customer before the end of the Initial Term or any Renewal Term (as applicable), is subject to early termination charges in respect of the Services to which the termination notice refers to be determined at the sole discretion by Veritas Cloud on a case-by-case basis, and depending on when the cancellation took place taking in to account the efforts already employed by Veritas Cloud for the delivery of the Equipment and/or performance of the Services at the time of receipt by Veritas Cloud of the written notification of cancellation from the Customer.
23.4 On termination of the Contract:
- 4.1 the Customer will immediately pay to Veritas Cloud all of Veritas Cloud’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Veritas Cloud will submit an invoice, which will be payable by the Customer immediately on receipt;23.4.2 the Customer will at its own cost return all of the Equipment except Sale Equipment which has been fully paid for. If the Customer fails to do so, then Veritas Cloud may enter the Customer’s premises and take possession of such Equipment. Until they have been returned, the Customer will be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
– 23.5 Termination or expiry of the Contract will not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
– 23.6 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry will continue in full force and effect.
23.7The Customer will be liable for any call charges, Monthly Charges and other charges incurred in the event of the Customer’s continued use of the Services after the date of cancellation.
24 Suspension
24.1 Without affecting any other right or remedy available to it, Veritas Cloud may suspend the supply of all or part of the Services under the Contract or any other contract between the Customer and Veritas Cloud if:
– 24.1.1 Veritas Cloud is entitled to terminate the Contract, or any one or more of the Services;
– 24.1.2 Veritas Cloud has reasonable grounds to believe that the Customer is in breach of its obligations under the Contract, or any one or more of the Services;
– 24.1.3 suspension is necessary to comply with Applicable Law;
– 24.1.4 repair or maintenance is required;
– 24.1.5 suspension is, in Veritas Cloud’s reasonable opinion, necessary in the event of an emergency; or
– 24.1.6 suspension is, in Veritas Cloud’s reasonable opinion, necessary for security purposes;
– 24.1.7 the Customer fails to pay any amount due under the Contract on the due date for payment (for the avoidance of any doubt such interruption does not relieve the Customer from paying any amount overdue and payable under the Contract);
– 24.1.8 the Customer becomes subject to any of the events listed in clause 22.1.2 to clause 22.1.4, or Veritas Cloud reasonably believes that the Customer is about to become subject to any of them.
25 Force Majeure
Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations(including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Suppliers or subcontractors). Inability to pay is not Force Majeure. Neither party shall be in breach of the Contract nor shall be liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations provided that it promptly notifies in writing the other party of the Force Majeure Event and its expected duration; and uses reasonable endeavours to minimise the effects of that event.
If the period of delay or non-performance continues for a period of six (6) months or more, the party not affected may terminate the Contract by giving written notice to the affected party.
26 Anti-bribery and Anti-corruption
26.1 The parties shall each:
– 26.1.1 comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
– 26.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
– 26.1.3 have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;
– 26.1.4 promptly report to the other of them any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this agreement;
– 26.1.5 immediately notify the other of them (in writing) if a foreign public official becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier and the Supplier warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of this agreement);
– 26.1.6 Within 3 months of the date of the Contract, and annually thereafter, certify to the other of them in writing signed by an officer of the party so certifying that such party is in compliance with this clause.
26.2 Breach of this clause 26 shall be deemed a breach of the Contract entitling immediate termination by the party not in breach pursuant to clause 22.1.9.
27 General
27.1 Assignment and other dealings
– 27.1.1 Veritas Cloud 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 under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. For the avoidance of doubt, Veritas Cloud may delegate any of its obligations or responsibilities arising out of the Contract to any of its business associates, and performance by such business associates shall be deemed to be performance by Veritas Cloud.
.– 27.1.2 The Customer will not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
– 27.1.3 At the written request of the Customer Veritas Cloud may, at its sole discretion, agree to novate the Contract. Such agreement must be evidenced in writing.
27.2 Notices
– 27.2.1 Any notice given to a party under or in connection with the Contract will be in writing and will be sent by email to support@veritascloud.co.uk
– 27.2.2 Any notice will be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 27.2.2, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
– 27.2.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of the Contract.
27.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law will prevent or restrict the further exercise of that or any other right or remedy.
27.5 No partnership or agency. Nothing in the Contract is intended to, or will be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
27.6 Entire agreement.
– 27.6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
– 27.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
– 27.6.3 Nothing in this clause will limit or exclude any liability for fraud.
27.7 Third parties’ rights.
– 27.7.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
27.8 Variation. We may vary these terms and conditions of business from time to time. By continuing to use Veritas Cloud Services after we post any such changes the Customer accepts the terms and conditions as modified. Within 30 days of variation the Customer may cancel this Contract upon 30 days’ written notice if Veritas Cloud changes any terms of this Contract and those changes are of material detriment to the Customer or the Service(s) Veritas Cloud provides. The Early Termination Charges detailed in Clause 23.3.1 will not be payable by the Customer where the Customer cancels this Contract in accordance with this clause 27.8.
27.9 Complaints and dispute resolutions. Details of Veritas Cloud’s complaints and dispute handling procedures for Domestic and Business Customers can be provided on request
27.10 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.
27.11 Domain Customers. Customers who take domains from Veritas Cloud agree to the terms and conditions of UK domain registrar Nominet. These terms and conditions can be found at http://www.nominet.uk/go/terms.27.12 Non-circumvention. The parties hereby irrevocably agree not to circumvent or attempt to circumvent the provisions of the Contract, and affirm that in every case they will act with the highest standards of ethics in their dealings with each other. At any time during the Contract, it is expressly agreed that the identities of any individual or entity and any other third parties (including without limitation, Suppliers, manufacturers and consultants) engaged in the provision of Services and/or Equipment on behalf of Veritas Cloud to the Customer constitute Confidential Information and the Customer shall not, without the prior written consent of Veritas Cloud:
- directly or indirectly initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertakings with any such third party identified or introduced by Veritas Cloud; or
- seek to by-pass, compete, avoid or circumvent Veritas Cloud from any business opportunity that relates to the Contract by utilising any Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information.
27.12.1 The Customer covenants that it will pay Veritas Cloud by way of liquidated damages a lump sum equivalent to any financial gains made by it from a breach of clause 27.12 (i.e. the difference between all amounts it would have paid Veritas Cloud but for the breach of clause 27.12 and the actual amounts paid for the Services and/or Equipment as a result of the breach of clause 27.12), the above does not affect Veritas Cloud’s ability to also sue for damages should the covenants in this clause 27.12 be violated in any way.
27.13 Non-solicitation. The Customer shall not, without the prior written consent of Veritas Cloud, during the Contract and for a period of twelve (12) months after its termination, either directly or indirectly, solicit or entice away from Veritas Cloud or employ or attempt to employ any person who is, or has been, engaged in the supply of Equipment and/or Services to the Customer as an employee or sub-contractor of Veritas Cloud. Without prejudice to any other rights and remedies Veritas Cloud may have, in the event the Customer breaches this clause, the Customer acknowledges that it amounts to a material breach of the Contract and agrees to pay Veritas Cloud, by way of liquidated damages, a lump sum equivalent to 50% of the annual remuneration (including all benefits and emoluments) to be paid by the Customer to such employee or sub-contractor and the Customer hereby agrees that such sum is a genuine and reasonable pre-estimate of Veritas Cloud’s loss. For the avoidance of doubt, general employment advertising for open positions not targeted to the other party’s employees shall not constitute solicitation.
