Interpretation
The following definitions and rules of interpretation apply in these One2Call Terms and Conditions.
1.1 Definitions:
Agreement: the agreement between the parties, which consists of the Master Services Agreement (including the Agreement Details, these One2Call Terms and Conditions, the Service Schedules published at the One2Call Website, and any other Schedules) and all Orders agreed under it.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier, or which the Customer requires the Supplier to use, in connection with the Services.
Customer Systems: any systems, software, equipment, tools, cabling or facilities, provided or made available by the Customer which is used directly or indirectly in the supply of the Services including any such items specified in an Order or Order Request.
Deliverables: any deliverables which are expressly set out in an Order for Services.
Delivery Location: has the meaning given in clause 5.2.
Force Majeure Event: has the meaning given to it in clause 23.
Goods: the goods (or any part of them) agreed in an Order.
Goods Specification: any written specification for the Goods incorporated into an Order.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, 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.
Minimum Term: in respect of any Services, means the duration of the minimum term for such Services, as set out in the relevant Order, or in the absence of any information in the Order, 12 months.
One2Call Website: the URL(s) at which the Supplier publishes its Service Schedules, being https://one2call.net/serviceschedules or such other URL(s) as the Supplier may notify to the Customer from time to time.
Order: a contract between the Supplier and the Customer for the supply of the Goods and/or Services specified in the Order which is agreed in accordance with these One2Call Terms and Conditions.
Order Request: a non-binding request made by the Customer for the supply of Goods and/or Services.
Pass-through Costs: means an increase in purchase price of Goods paid by the Supplier, any pass-through charges from the Supplier’s suppliers or any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, change in legislation, increases in labour, materials and other manufacturing costs, any increase in licensing costs imposed on the Supplier by a third-party provider or increased costs imposed on the Supplier by upstream network providers);
Quotation: a written quotation issued by the Supplier to the Customer which specifies Goods and/or Services, their charges and any other relevant terms and conditions and which the Customer may accept via the method and within the timescales communicated to the Customer at the time.
Renewal Term: in respect of any Services, means the duration of the renewal term for such Services, as set out in the relevant Order, or in the absence of any information in the Order, the same duration as the Minimum Term.
Services: the services to be provided by the Supplier as agreed in an Order and otherwise in accordance with the relevant Service Specification and Service Schedule(s)
Service Schedule: any additional terms and conditions which are specific to particular categories of Services, as published by the Supplier at the One2Call Website from time to time.
Service Specification: any written specification for the Services incorporated into the Order.
Services Start Date: means the date the relevant Services shall commence, as agreed in the Order or otherwise agreed in writing between the parties.
Supplier Materials: has the meaning given in clause 12.1(k).
Third-Party System/Service/Software: means any systems, software, equipment or facilities, which is provided, made available by or relies on a third-party and which the Customer requires the Supplier to use directly or indirectly in the supply of the Services including any such items specified in an Order.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes:
(i) its personal representatives, successors and permitted assigns; and
(ii) that party’s agents, subcontractors, consultants and any other person acting on behalf of that party.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes, email and Microsoft Teams.
(f) Any reference to a clause in these One2Call Terms and Conditions is to a clause within these One2Call Terms and Conditions unless the context dictates otherwise.
(g) A reference to a paragraph is to a paragraph of the relevant Schedule.
(h) Clause, Schedule and paragraph headings shall not affect the interpretation of the Agreement, including these One2Call Terms and Conditions or any Order.
2. Order process
2.1 The Customer may issue any number of Order Requests for Goods and/or Services from the range of Goods and Services listed in the Master Services Agreement using the methods set out in the Agreement Details. The Customer’s Order Requests are not binding. The Customer shall ensure that its Order Requests are complete and accurate.
2.2 Upon receipt of an Order Request:
(a) if the Order Request is for Goods and/or Services of a type which have already been supplied under a previous Order, and the price and specification has not changed since that Order, the Supplier may accept the Order Request and commence performance of the Order; or
(b) the Supplier may issue a Quotation which:
(i) specifies to the Goods and/or Services which the Supplier is able to deliver, the charges for such Goods and/or Services and any other key terms regarding the performance of the potential Order; and
(ii) the Customer may accept via the method and within the timescales communicated to the Customer at the time.
2.3 The Order shall only become binding on the parties:
(a) in the circumstances described in clause 2.2(a), when the Supplier commences performance of the Order or provides written confirmation that it intends to perform the Order; or
(b) upon acceptance of a Quotation by the Customer via the method and within the timescales set out in the Quotation.
2.4 Acceptance of delivery of any Goods under an Order shall be deemed to be conclusive evidence of the Customer’s acceptance of these One2Call Terms and Conditions.
2.5 Delivery in instalments. The Supplier may deliver the Goods and/or Services in separate instalments. Each instalment shall be treated as a separate Order, invoiced and payable in accordance with the applicable Order. Cancellation or termination of any one instalment shall not entitle the Customer to cancel or repudiate the Order or any other instalment.
2.6 Scope of Orders. If the Customer wishes to place an Order for any goods or services which are not listed in the Master Services Agreement, it should inform the Supplier.
3. Basis of Contract.
3.1 Each Order shall consist of:
(a) the Quotation;
(b) the Agreement Details;
(c) the Service Schedules published at the One2Call Website which are relevant to the Services in the Order; and
(d) these One2Call Terms and Conditions.
3.2 If there is a conflict between any of the provisions of any document listed in clause 3.1, the conflict will be resolved in favour of the document appearing higher (i.e. earlier) in the list.
3.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Order nor have any contractual force.
3.4 These One2Call Terms and Conditions apply to the Order to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these One2Call Terms and Conditions.
3.5 All of these One2Call Terms and Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
4. Goods
4.1 The quantity and description of any Goods shall be as set out in the Goods Specification.
4.2 The Supplier reserves the right to amend the Goods Specification if required by any applicable law or regulatory requirement, and the Supplier shall notify the Customer in any such event.
5. Delivery of Goods, Returns and Cancellations
5.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order.
5.2 The Supplier shall deliver the Goods to the location set out in the agreed in the Order or such other location as the parties may agree (Delivery Location) on or after the day notified by the Supplier that the Goods are ready for delivery.
5.3 The Supplier shall use its reasonable endeavours to arrange delivery of the Goods on an agreed delivery date, but does not guarantee to do so. Time of delivery shall not be of the essence of the contract.
5.4 The Supplier shall not be liable to the Customer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods. If short delivery does take place, the Customer undertakes not to reject the Goods but to accept the Goods delivered as part performance of the Order.
5.5 The Customer shall make all arrangements necessary to take delivery of the Goods on the day notified by the Supplier for delivery.
5.6 If the Customer fails to take delivery of the Goods within five Business Days of the Supplier notifying the Customer that the Goods are ready for delivery, then the Supplier shall be entitled to store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.7 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
5.8 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.9 If the Supplier fails to deliver the Goods, its liability shall be limited to a full refund of the price paid by the Customer for the undelivered Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.10 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.11 Goods ordered by the Customer may only be returned or cancelled with the prior written agreement of the Supplier.
5.12 If the Supplier agrees to accept a return of Goods, the Customer shall:
(a) return the Goods in original packaging, unused and in resaleable condition;
(b) pay any reasonable restocking fee specified by the Supplier;
(c) pay all costs of return carriage.
5.13 Custom-configured Goods or Goods ordered specifically for the Customer may not be returned or cancelled.
6. Acceptance of Goods
6.1 The Customer shall be deemed to have accepted the Goods 48 hours after delivery to the Customer.
6.2 The Customer shall carry out a thorough inspection of the Goods within 48 hours of delivery and shall give written notification to the Supplier within 5 working days of delivery of the Goods of any defects which a reasonable examination would have revealed.
6.3 Where the Customer has accepted, or has been deemed to have accepted, the Goods the Customer shall not be entitled to reject Goods which are not in accordance with the Order.
7. Quality of Goods
7.1 The Supplier warrants that the Goods will at the time of delivery correspond to the Goods Specification. Except where the Buyer is dealing as a consumer (as defined in section 12 of the Unfair Contract Terms Act 1977), all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods are excluded.
7.2 Subject to clause 7.3, if:
(a) the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
7.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 7.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 7.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4 Except as provided in this clause 7, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 7.1.
7.5 These One2Call Terms and Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
8. Title and risk
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and all other sums owed by the Customer to the Supplier (whether for other goods or otherwise), including any interest and costs charged under clause 14.14.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 20.2(b) to clause 20.2(d); and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
8.4 Subject to clause 8.5, the Customer may use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods.
8.5 At any time before title to the Goods passes to the Customer, the Supplier may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9. Supply of Services
9.1 Any Services under the Order shall commence on the Services Start Date and::
(a) shall continue for the Minimum Term stated in the Order; and
(b) thereafter, shall automatically renew for successive Renewal Terms unless either party gives the other written notice of its intention to terminate the Services, such notice being effective (after the expiry of relevant notice period) at the end of the Minimum Term or the relevant Renewal Term;
unless terminated earlier in accordance with clause 20 (Termination).
9.2 The relevant notice period referred to in clause 9.1(b) shall be as set out in the Order, or if no such notice period is specified, 90 days.
9.3 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
9.4 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.5 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event of such changes to the Service Specification.
9.6 The Supplier warrants to the Customer that:
(a) the Services will be provided using reasonable care and skill.
(b) any Deliverables will perform substantially in accordance with the Service Specification for a period of 90 days from the date of delivery.
9.7 If any Deliverables do not perform in accordance with the warranty at clause 9.6(b), or the Services are not provided using reasonable care and skill, the Supplier shall, for no additional charge, carry out further work as the Supplier deems necessary in order to ensure that the Services are provided and the Deliverables perform substantially in accordance with the Service Specification for a period of 90 days. The remedies set out in this clause 9.7 shall be the Customer's sole and exclusive remedies for any breach of the warranties in clause 9.6.
9.8 Where the Services and/or Deliverables (or the Customer’s use of them) involve:
(a) the use of any Customer Systems and/or Customer Materials;
(b) the use of communications networks and facilities, including the Internet;
the Supplier is not responsible for any problems, delays, data transfer failures, or any other loss or damage resulting from such use and the warranty set out in clause 9.6(b) and the remedies set out in clause 9.7 shall not apply to the extent that any failure of the Deliverables to perform substantially in accordance with the Service Specification is caused by such use.
9.9 The Supplier shall comply with all applicable laws and regulations with respect to the provision of the Services.
9.10 If the Supplier delivers less than the full quantity of Goods ordered, the Customer shall accept such Goods as are delivered as part performance of the Order and shall not be entitled to reject any Goods delivered by reason only of short delivery.
10. Services involving the internet or any third-party network
10.1 The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11. Services which involve any Third-Party System/Service/Software
11.1 Where the Services involve any Third-Party System/Service/Software:
(a) the Customer acknowledges that the use of such Third-Party System/Service/Software may be subject to additional terms and conditions which:
(i) the Customer must accept; or
(ii) the Customer must authorise the Supplier to accept on behalf of the Customer (which may be implied by the Order or the Customer’s instructions);
(b) the Parties shall each provide all reasonable co-operation to facilitate the use of such Third-Party System/Service/Software;
(c) the Supplier shall use commercially reasonable endeavours to integrate with service providers of the Third-Party System/Service/Software for the purpose of providing the Services;
(d) the Supplier shall not be liable for any inability to provide the relevant Services as a result of:
(i) the Customer failing to agree to or comply with any relevant third-party terms and conditions;
(ii) the willingness of the relevant third-party to allow the Supplier to make use of the Third-Party System/Service/Software in the course of the Services;
(iii) the availability of the relevant Third-Party System/Service/Software; and
(iv) any failure of the relevant third-party to facilitate the use of the Third-Party System/Service/Software in relation to the relevant Services;
(e) the Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party System/Service/Software, or any transactions completed, and any contract entered into by the Customer, with the provider of such Third-Party System/Service/Software; and
(f) the Supplier does not endorse or approve any Third-Party System/Service/Software used in, integrated with or linked to from the Services.
12. Customer's obligations
12.1 The Customer shall:
(a) ensure that the Order Request and any information it provides is complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information, materials and access as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services, including in relation to the use of all Customer Materials and the use of the Customer Systems, in all cases before the date on which the Services are to start;
(g) comply with all applicable laws;
(h) comply with any acceptable use policy provided by the Supplier or any third-party supplier in relation to the Services; or
(i) ensure that the Services are not used for any unlawful or fraudulent activity;
(j) ensure the accuracy, suitability and completeness of any Customer Materials and Customer Systems;
(k) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
(l) comply with any additional obligations as set out in the Service Specification and/or the Goods Specification;
at its own cost unless expressly agreed otherwise.
12.2 Subject to clause 19 (Force Majeure), if the Supplier's performance of any of its obligations under the Order is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of, and access to, 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 the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 12.2;
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default; and
(d) the Customer Default shall not affect the Customer’s obligations to pay all amounts due for any Services provided to it.
12.3 The Customer shall not access, store, distribute or transmit any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) promotes unlawful violence;
(d) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
(e) is otherwise illegal or causes damage or injury to any person or property;
(f) breaches any acceptable use policy provided by the Supplier or any third-party supplier in relation to the Services; or
(g) breaches any third-party terms and conditions or licence terms;
and the Supplier reserves the right, without liability to the Customer, in addition to any other right or remedy the Supplier may have, to disable the Customer's access to any material that breaches the provisions of this clause or that the Supplier, in its reasonable opinion, otherwise considers appropriate to do so.
12.4 The Customer shall ensure that its employees, agents and representatives treat the Supplier's personnel with respect. If any employee, agent or representative of the Customer subjects any employee, contractor or representative of the Supplier to verbal abuse, physical abuse, threatening behaviour or any other form of harassment or misconduct, the Supplier may, without liability to the Customer, immediately suspend the Services until the matter is resolved to the Supplier's reasonable satisfaction. Repeated or serious incidents shall entitle the Supplier to terminate the Agreement or any Order(s) with immediate effect by written notice.
12.5 The Customer shall be responsible for obtaining all necessary consents (including landlord consent, wayleave agreements, and rights of access) for the installation of Equipment or the delivery of Services at the Customer's premises. The Customer shall bear the cost of obtaining such consents and shall indemnify the Supplier against any claims arising from the Customer's failure to obtain required consents.
12.6 The Customer shall ensure that the Supplier's personnel have a safe working environment when attending the Customer's premises to provide the Services. The Customer shall notify the Supplier in advance of any applicable health and safety rules, site induction requirements, or access restrictions. The Supplier's personnel shall comply with reasonable site rules notified to them in advance.
12.7 The Customer shall maintain appropriate backup and disaster recovery arrangements for its own systems and data. The Customer acknowledges that (subject to the Supplier’s obligations under Applicable Data Protection Laws and the Data Protection Schedule) the Customer is solely responsible for such arrangements and that these fall outside of the scope of the Services.
13. Non-solicitation and employment
13.1 The Customer shall not, without the prior written consent of the Supplier, at any time from the date on which any Services commence to the expiry of 12 months after the completion of such Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of such Services.
13.2 Any consent given by the Supplier in accordance with clause 13.1 shall be subject to the Customer paying to the Supplier a sum equivalent to 30% of the then current annual remuneration of the Supplier's employee, consultant or subcontractor or, if higher, £10,000.
14. Charges and payment
14.1 Charges. The price for the Goods and/or Services shall be:
(a) the price agreed in the Order;
(b) if no price is agreed in the Order, the price set out in the Supplier's published price list as at the date the Order is agreed; or
(c) if no price is published:
(i) the price for the relevant Services shall be as set out in clause 14.2 (time and materials); and
(ii) the price for the relevant Goods shall be as notified by the Supplier prior to delivery.
14.2 Time and materials. Where the charges for Services are calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier's fee rates, as provided to the Customer from time to time;
(b) the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days;
(c) the Supplier shall be entitled to charge for any reasonable expenses incurred in the performance of the Services.
14.3 Delivery costs. Unless otherwise agreed in writing, the price for any Goods shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
14.4 Expenses. The Supplier shall be entitled, subject to the Customer’s prior written approval, to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
14.5 Ad hoc Services. The Customer shall pay the Supplier for any ad hoc or additional work not covered by the Order, provided that such work has been agreed in writing by the parties in advance. Such work shall be charged on a time and materials basis as set out in clause 14.2.
14.6 Cancellation charges. If the Customer cancels a site visit by, or on behalf of, the Supplier with less than 48 hours' written notice, the Supplier shall have the right to charge the Customer, and the Customer shall pay, a minimum call out charge of not less than one day's labour at the rate applicable at the time of cancellation.
14.7 Increases. The Supplier reserves the right to:
(a) increase the price for the Goods and/or charges for the Services by giving the Customer at least 30 days’ written notice, to reflect any increase in the cost of the Goods and/or Services to the Supplier that is due to:
(i) any Pass-Through Costs;
(ii) any change in delivery dates, quantities or specifications which is requested by the Customer;
(iii) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions; or
(iv) any other material increase in cost incurred which is outside of the control of the Supplier;
(b) in addition to the circumstances in clause 14.7(a), increase the charges for any Services no more than once in any 12-month period by giving not less than thirty days’ written notice;
provided that if any single increase of any part of an Order is greater than 30%, the Customer shall be entitled to terminate the relevant part of the Order by providing written notice to the Supplier within 14 days of receipt of the Supplier’s notice.
14.8 Invoicing after delivery of Goods. In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery.
14.9 Invoicing for Services. In respect of Services, the Supplier shall invoice the Customer monthly in respect of any new Orders or renewals which took place within the previous month.
14.10 Payment terms. The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) time for payment shall be of the essence of the Order.
14.11 Payment in instalments. The charges shall be payable in any instalments set out in the Order, or otherwise monthly in advance.
14.12 Direct debit. Unless otherwise agreed in the Order, the Customer agrees to pay all charges via direct debit. The Customer shall complete and maintain a valid direct debit mandate in favour of the Supplier. Payments shall be collected automatically on or around the due date stated on the relevant invoice or as otherwise agreed. The Customer shall ensure that sufficient funds are available to meet each payment.
14.13 VAT. All amounts payable by the Customer under the Order are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Order by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods or both, as applicable, at the same time as payment is due for the supply of the Services or Goods.
14.14 Interest If the Customer fails to make a payment due to the Supplier under the Order by the due date, then, without limiting the Supplier's remedies under clause 20, the Customer shall pay interest and the Supplier's reasonable costs of recovery on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 14.14 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%. The Supplier's reasonable costs of recovery shall include (but not be limited to) legal costs, debt collection agency fees, and administrative costs reasonably incurred in pursuing the overdue sum.
14.15 No withholding. All amounts due from the Customer under the Order shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may at any time, without notice to the Customer, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Order.
14.16 Deposits and guarantees. The Supplier may require a deposit or parent company guarantee as a condition of providing the Services. The Customer agrees to enter into any guarantee or security agreement reasonably required by the Supplier.
14.17 Aborted visits. If the Supplier attends the Customer's premises to perform any work and is unable to complete that work due to any act or omission of the Customer (including failure to provide access, the site not being ready, the Customer breaking or rescheduling an appointment at short notice, or the Customer's failure to prepare the site in accordance with the Supplier's instructions), the Supplier may charge the Customer a reasonable aborted visit fee. Any rescheduled appointment shall be subject to the Supplier's then-current lead times.
14.18 Credit checks. The Customer consents to the Supplier conducting credit checks on the Customer before entering into or during the term of any Order. The Supplier may decline to provide Services, or require a deposit or other security, if the results of such checks are not satisfactory.
15. Changes to Services
15.1 The Customer may request changes to the scope or nature of the Services. The Supplier shall respond within a reasonable time and may propose revised Charges or timelines. Changes shall not be effective unless agreed in writing.
16. Intellectual property rights
16.1 All Intellectual Property Rights in or arising out of or in connection with the Services and/or any Deliverables (excluding the Customer Materials) shall be owned by the Supplier or its licensors.
16.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Order to access and use the Services and the Deliverables for its internal business purposes.
16.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 16.2.
16.4 The Customer shall not at any time make any unauthorised use of the Intellectual Property Rights in the Deliverables, nor authorise or permit any of its agents, contractors or any other person to do so.
16.5 The Customer shall not resell, share, or permit third-party use of the Services or any bandwidth provided under any Order, except with the Supplier's prior written consent.
16.6 In relation to the Customer Materials:
(a) the Customer and its licensors shall retain ownership of all IPRs in the Customer Materials and Customer Systems; and
(b) the Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to use the Customer Materials and Customer Systems for the term of the Order for the purpose of providing the Services to the Customer.
17. Indemnities
17.1 Subject to rest of this clause 17, the Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
(a) the Customer’s failure to maintain adequate backup or disaster recovery arrangements in accordance with clause 12.7;
(b) any failure to purchase, implement or appropriately rely on backup services offered by the Supplier; and/or
(c) the Customer's use of the Services and/or Deliverables and the Supplier’s use of the Customer Materials and Customer Systems;
provided that:
(d) the Customer is given prompt notice of any such claim;
(e) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(f) the Customer is given sole authority to defend or settle the claim.
17.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Deliverables in accordance with the Order infringes any third party intellectual property right, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
17.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
17.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Deliverables by anyone other than the Supplier; or
(b) the Customer's use of the Services or Deliverables in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer's use of the Services or Deliverables after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or
(d) the Customer Materials or Customer Systems; or
(e) the Customer's breach of this agreement.
17.5 The foregoing and clause 19 state the Customer's sole and exclusive rights and remedies, and the Supplier's entire obligations and liability, for infringement or alleged infringement of any third party patent, copyright, trade mark or database right by the Supplier.
18. Data protection
18.1 Both parties will comply with all applicable requirements of Applicable Data Protection Laws.
18.2 Where the Services involve the Supplier processing personal data on behalf of the Customer, the Data Protection Schedule (published at the One2Call Website) shall apply.
19. Limitation of liability
19.1 References to liability in this clause 19 include every kind of liability arising under or in connection with the Agreement, the Order and any Goods or Services, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
19.2 Nothing in the Agreement or any Order limits any liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) defective products under the Consumer Protection Act 1987; or
(e) any liability that legally cannot be limited.
19.3 Neither party shall have any liability for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
19.4 Subject to clause 19.2 and clause 19.3, the Supplier's total liability to the Customer (including under any indemnities) shall not exceed the higher of (i) the price paid by the Customer under the relevant Order(s) in respect of the period of 12 months leading up to the event giving rise to the liability; and (ii) £100,000.
19.5 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 7 and clause 9. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
19.6 This clause 19 shall survive termination of the Agreement and the relevant Order.
20. Termination
20.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement and any or all Order(s) by giving the other party not less than 12 months' written notice.
20.2 Without affecting any other right or remedy available to it, either party may terminate any or all Order(s) with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Agreement or any Order and (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;
(b) the other party 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), obtaining a moratorium, 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;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement or any Order is in jeopardy.
20.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement or any or all Order(s) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement or any Order on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment.
20.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Agreement or any Order(s) or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Agreement or any Order on the due date for payment, the Customer becomes subject to any of the events listed in clause 20.2(b) to clause 20.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
21. Consequences of termination
21.1 On termination of any Order(s):
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods and Services supplied under the relevant Order(s) but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Agreement or any Order(s).
21.2 Termination or expiry of the Agreement or any Order(s) shall 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 Agreement or any Order(s) which existed at or before the date of termination or expiry.
21.3 Any provision of the Agreement or any Order that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
22. Confidentiality
22.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 22.2 or with the written consent of the other party.
22.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement or the relevant Order(s). Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 22; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
22.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement or the relevant Order(s).
22.4 The obligations of confidentiality under this clause 22 will not apply to any confidential information which:
(a) was known to the recipient before its receipt from the disclosing party;
(b) is lawfully in the public domain or possession of a third party other than by reason of breach; or
(c) is independently developed without access to the other party’s confidential information.
23. Force majeure
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 60 days, the party not affected may terminate the Agreement and/or any relevant Order(s) by giving not less than 14 days' written notice to the affected party.
24. General
24.1 Assignment and other dealings
(a) The Supplier 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 Agreement or any Order(s).
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement or any Order(s) without the prior written consent of the Supplier.
24.2 Notices.
(a) Any notice given to a party under or in connection with the Agreement or any Order(s) shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the addresses specified in the Agreement Details (or an address substituted in writing by the party to be served).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) 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.
24.3 Severance. If any provision or part-provision of the Agreement or any Order(s) is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement or the relevant Order(s). If any provision or part provision of the Agreement or any Order(s) is deemed deleted under this clause 24.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
24.4 Waiver.
(a) A waiver of any right or remedy under the Agreement or any Order(s) or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Agreement or any Order(s) or by law shall not constitute a waiver of that or any other right or remedy, nor shall 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 Agreement or any Order(s) or by law shall prevent or restrict the further exercise of that or any other right or remedy.
24.5 No partnership or agency. Nothing in the Agreement or any Order(s) is intended to, or shall 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.
24.6 Entire agreement.
(a) The Agreement (including the Order(s)) constitutes the entire agreement between the parties.
(b) Except as expressly set out in the Agreement and any Order(s), any and all conditions and warranties or terms of equivalent effect which might have effect between the parties or be implied or incorporated into the Agreement, the relevant Order(s) or any collateral contract, whether by statute, common law or otherwise, including any implied warranties as to quality or merchantability, accuracy and fitness for a particular purpose, are excluded to the fullest extent permitted by law.
(c) Each party acknowledges that in entering into the Agreement and any Order(s) it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement or the relevant Order(s). Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement or any Order(s).
24.7 Third party rights.
(a) The Agreement (including any Order(s)) does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement or any relevant Order(s).
(b) The rights of the parties to rescind or vary the Agreement (including any Order(s)) are not subject to the consent of any other person.
24.8 Variation. Except as set out in these One2Call Terms and Conditions, no variation of the Agreement (including any Order(s)) shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
24.9 Anti-bribery. Each party shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including the Bribery Act 2010. Neither party shall 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. Either party may terminate the Agreement or any Order(s) with immediate effect by giving written notice to the other party if the other party breaches this clause.
24.10 Anti-slavery. Each party shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes, including the Modern Slavery Act 2015. Each party shall have and maintain throughout the term of the Agreement its own policies and procedures to ensure compliance with the Modern Slavery Act 2015 and shall notify the other party immediately if it becomes aware of any actual or suspected slavery or human trafficking in any part of its business or supply chain.
24.11 Dispute resolution. If any dispute arises out of or in connection with the Agreement or any Order(s), the parties shall first attempt to resolve the dispute through good faith negotiations between senior representatives of each party. If the dispute is not resolved within 30 days of the first written notice of the dispute, either party may then commence proceedings in accordance with clause 24.14.
24.12 Marketing consent. The Customer consents to the Supplier:
(a) using the Customer's name and logo in the Supplier's marketing materials as a reference customer; and
(b) sending the Customer information about the Supplier's products and services by email or other means, provided that the Customer may withdraw either consent by written notice to the Supplier, such withdrawal to take effect after the completion of any marketing campaign already in progress at the date of the Customer's notice.
24.13 Governing law. The Agreement (including any Order(s)) 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 shall be governed by and construed in accordance with the law of England and Wales.
24.14 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement (including any Order(s)) or its subject matter or formation.
