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General Terms and Conditions
The parties to this Contract are Destination Fibre Ltd, a company incorporated and registered in
England and Wales with company number 14690520 whose registered office is at 71-75 Shelton St,
London WC2H 9JQ (“DFL”) and the customer (“Customer”) whose details are set out in the Order
Form.
A Contract consists of these General Terms and Conditions together with such Order Form(s) and
Service Terms as the parties may enter into from time to time.
1.Interpretation
The following definitions and rules of interpretation apply in the Contract.
1.1 Definitions
Affiliate In relation to a Party to a Contract (at the relevant time) any company which is a
Subsidiary or Holding Company or which is a Subsidiary of any such Holding Company from time to
time (where ‘Subsidiary’ and ‘Holding Company’ have the meanings given in section 1159 and
Schedule 6 of the Companies Act 2006).
Ancillary Charges Any third-party charges as set out in the Order Form incurred by DFL relating to
the provision of a Services that are not Installation Charges, Recurring Charges or Usage Charges.
Ancillary Equipment Any equipment, apparatus, Service (hardware/software), systems and cabling
provided by or on behalf of, DFL to provide a Service at a Site. The Ancillary Equipment does not
include the DFL Network.
Ad Hoc Expenses Any further costs, expenses, charges or fees for goods or services provided by
DFL or incurred following a request by the customer for a change, additional and/or services or
requirements be it under Service Terms or otherwise and including to assist or facilitate customer
compliance with its obligations under a Contract.
Best Industry Practice The standards which fall within the upper half in the relevant industry for
the provision of comparable services which are substantially similar to the Services or the relevant
part of them, having regard to factors such as the nature and size of the parties, the Term, the
pricing structure and any other relevant factors.
Beyond Use As specified in accordance with the guidelines issued by the Information
Commissioner’s Office from time to time.
Business Day A day which is not Saturday, Sunday or a public holiday in England and Wales.
Charges The Installation Charges, the Recurring Charges, the Non-Recurring Charges, the Usage
Charges (whether or not incurred fraudulently), purchase price for Purchased Equipment and the
Ancillary Charges.
Confidential Information All business and trade secrets, methods of doing business, customer lists,
tariffs and pricing information and all other confidential information and material disclosed by
obtained by a Party in connection with a Contract.
Connection Date The date DFL specifies that a Service is ready for use or where earlier, the date
upon which the Customer first uses the Service.
Contract An Order Form and any terms set out in it together with the General Terms and
Conditions and the applicable Service Terms.
Contract Term The period commencing on the date of the Contract as stipulated in the Order Form
and continuing until terminated in accordance with the General Terms and Conditions.
Credit Limit A monthly financial limit on the Charges which may be incurred under all Contracts.
Customer Equipment Any equipment, apparatus, software, systems and cabling provided by
Customer and used to access the Services.
Customer Manager The individual stipulated in the Order form, the details of which the Customer will
ensure remains up to date, and whose decision and agreement will be binding on the customer for the Services
rendered under the Contract.
Data Protection Legislation GDPR and any national implementing laws, regulations and secondary
legislation, as amended or replaced from time to time, in the UK and then any successor legislation
to GDPR and the Data Protection Act 2018.
Data Subject As defined in the Data Protection Legislation.
Employment Regulations The Transfer of Undertakings (Protection of Employment) Regulations
2006 (SI 2006/246) as amended or replaced from time to time or any other regulations
implementing the European Council Directive 77/187/EEC.
End User Any person who must be an employee of or contractor to Customer or an Affiliate,
authorised by Customer to use the Service.
Force Majeure Event An event beyond the reasonable control of a Party which is not attributable
to its fault or negligence, including acts of God, expropriation or confiscation of facilities, any form
of government intervention, war, threat or preparation for war, hostilities, rebellion, terrorist
activity, local or national emergency, civil commotion, strikes or other industrial action (other than
affecting the Party seeking to rely on such event) imposition of sanctions, embargo, sabotage or riots, floods, fires, explosions or other catastrophes, natural disasters, nuclear or chemical or biological contamination, epidemic or pandemic, interruption or failure of utility service, power
failures, non-availability of any third party communication services or the public Internet.
GDPR The General Data Protection Regulation (EU) 2016/679.
Installation Charges The charges, as set out in the Order Form, incurred as a result of or arising
from the installation and/or implementation of the Services.
Intellectual Property Rights Patents, rights to inventions, copyright and related rights, trademarks
and service marks, business names and domain names, rights in get-up, goodwill and the right to
sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality
of, Confidential Information, 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 rights or
forms of protection which subsist or will subsist now or in the future in any part of the world.
DFL Network The public electronic communications network operated by DFL, its Affiliates or its or
their third-party providers from time to time.
Legislation Any applicable laws and regulations relating to the provision of the Services.
Minimum Term The minimum term stipulated in the Order Form of a Contract which commences on
the Service Commencement Date.
Non-Recurring Charges The charges for a Service that are incurred from time to time, as set out in
the Order Form.
Order Form Each request for a Service including any subsequent Updated Order Forms, in the
format provided by DFL from time to time, issued by DFL.
Personal Data As defined in the Data Protection Legislation.
Personal Data Breach Unauthorised or unlawful Processing of Personal Data or accidental loss or
destruction of or damage to Personal Data.
Phone-paid Services Authority The UK regulatory body for premium rate phone services and its
successors in law from time-to-time.
Processing As defined in the Data Protection Legislation and the word “Process” shall be construed
accordingly.
Processor As defined in the Data Protection Legislation.
Purchased Equipment Any equipment, apparatus, software, systems, cabling purchased by
Customer from DFL.
Recurring Charges The regular charges for a Service that are incurred periodically, such as line
rental, as set out in the Order Form.
Service Any service, Ancillary Equipment and Purchased Equipment provided by DFL to Customer
pursuant to a Contract as more particularly described in the applicable Service Terms, and
“Services” will be construed accordingly.
Service Commencement Date: The date stated in the Order Form when the Service commences
and if none is stated, the Connection Date.
Service Terms The service documents setting out the service description(s) and indicated in the
Order Form as forming part of the Contract.
Service Transition Form A form in the format provided by DFL from time-to-time to be used
during implementation of Services for purposes of capturing and agreeing the required details and
specifications to facilitate successful Service Transition and ongoing delivery of Services.
Service Transition The ITIL process for building and deploying IT services. The Service Transition
lifecycle stage is used to ensure that changes to services and service management processes are
carried out in a coordinated way and to agree all implementation plans, policies, methods, protocols
and principles required for delivery of the Services.
Site Any premises, not owned by DFL, at which a Service is to be provided and stipulated in the
Order From.
Third-Party Operator The operator of any electronic communications network or provider or any
electronic communications services over which or through which DFL may provide Services.
Third-Party Processor List A list of the Third-Party Processors, which is available on request by
Customer from their DFL account manager.
Third-Party Processors DFL’s Third-Party Processors, who may Process Personal Data outside of
the European Economic Area, as detailed on the Third-Party Processor List.
Trial Services Any DFL Service, or service not generally available to DFL’s customers.
Updated Order Form The update to the Order Form DFL may issue following completion of the
required Service Transition Form.
Usage Charges The charges, as set out in the relevant Service Terms, which are incurred based on
use of a Service, such as call charges or bandwidth usage charges. This covers all charges incurred
including where a Service is used without the Customer’s knowledge, consent or otherwise. 1.2 In a Contract:
a) words and phrases used with capital letters have meaning given in the glossary at the end of
these General Terms and Conditions, unless otherwise defined in the glossary at the end of the
applicable Service Terms or in an Order Form;
b) headings shall be for ease of reference only and shall not affect the interpretation of the
Contract;
c) time will not be of the essence and dates given are estimations only;
d) any obligation on a Party not to do something includes an obligation not to allow that thing
e) reference to:
f) in the case of a conflict or ambiguity, the order of precedence for a Contract and any
documents attached to or referred to in it will be as follows, in descending order of importance:
2. Ordering Services
2.1 Customer may from time-to-time purchase Services and Purchased Equipment from DFL. DFL
will issue an Order Form and a Contract will come into existence once the Order Form has been
signed by the Customer and DFL.
2.2 Nothing in these General Terms and Conditions will oblige DFL to accept any Order Form, nor to
provide any Services, until DFL and the Customer sign an Order Form.
3. Installation and Supply
3.1 Upon commencement of a Contract in accordance with Clause 2, DFL will use reasonable
endeavours to provision and as necessary, install the Service and will inform Customer when the
Service is connected and ready for use.
3.2 In providing the Services DFL shall at all times:
a) provide the services in accordance with the Legislation (including the
Telecommunications Regulations 2000 and Code of Practice issued by the Phone-paid
Service Authority where applicable) and Best Industry Practice; and
b) allocate sufficient resources to provide the Services in accordance with the terms of
the Contract.
3.3 DFL cannot, given the nature of the Service, guarantee that the Service will be continuously
available or error free.
3.4 DFL reserves the right to cancel any Service which is specified in a Contract prior to the Service
Commencement Date or within a reasonable period of time thereafter where:
a) the Service cannot be delivered to or installed at a Site, owing to a geographic, practical or
technical restraint; or
b) the cost of providing or installing the Service at a Site is materially higher than the usual
cost of providing the Service to a customer and Customer does not agree to pay any
additional Charges requested by DFL.
3.5 Customer shall provide (and shall make sure that its End Users and any Affiliates shall provide)
all information and complete all documentation and information which is required by DFL in order to
perform its obligations under the Contract.
3.6 Immediately following contract signature DFL will, at its sole discretion, provide Customer with a
Service Transition Form and notification of the dates and times available for a meeting with the
Customer Manager.
3.7 Both parties agree that they will ensure that they provide all reasonable assistance during any
Service Transition so as to ensure that it is completed without undue delay and where a timetable
or implementation plan is agreed that the milestones and other requirements therein are achieved
within the time provided therefore. As such the parties undertake to react, respond and/or accept
or reject as may be required, without delay to any request or requirement for information,
assistance and/or approvals and agree in so far as it is required to accept or reject, that acceptance
will be deemed should a party fail to reject within three (3) Business Days from the date of the
request.
3.8 The Customer will at all times:
a) provide DFL with access to appropriate members of the Customer’s staff, as such access is
reasonably requested by DFL in order for DFL to establish any details required for it to
comply with its obligations under this Contract and for the parties to agree any outstanding
information, project and implementation plans, methods and principles required for
successful rendering of the Services as set out in these Service Terms and discharge its
obligations under this Contract;
b) respond to and provide such documentation, data and other information as DFL reasonably
requests in order for the parties to agree any outstanding points and for DFL to perform its
obligations under this Contract;
c) to the extent that the following are not expressly provided for elsewhere in this Contract,
using all reasonable endeavours, respond to requests for information in a prompt and timely
manner, where such requests are reasonably made by or on behalf of DFL to enable DFL to
comply with its obligations under this Contract.
3.9 The Customer agrees and accepts that DFL will rely on the information disclosed by the
customer prior to and during Service Transition and any delays caused and/or costs, expenses,
claims or penalties etc. DFL may incur as a result of such information not being correct, or as a
result of a failure to provide information requested or obviously relevant, will be for the account of
the Customer and DFL will be entitled to include such costs, expenses, claims, penalties etc in the
next invoice together with an Updated Order Form, at DFL’s sole discretion.
3.10 Both parties will cooperate in good faith and will take all such necessary steps to ensure that
the Service Transition Form together with any project and implementation plans, policies, methods
and principles are agreed and completed within the time period stated in the Order Form or such
other date as both parties may agree to in writing.
3.11 Notwithstanding any provision in this Contract to the contrary, where the Service Transition
Form has not been completed at the time stipulated in it as a result of a failure or delay by the
Customer the Recurring Charges will be invoiced and become payable as set out in the General
Terms and Conditions no later than 4 weeks after the date of Contract signature by the Customer.
3.12 During transition of the Services at the end of a Contract DFL will provide for a period of thirty
(30) days (or such longer period as the parties may agree to in writing) following termination (other
than for termination under Clause 8.4 f) ), such assistance as is reasonably required to facilitate in
so far as reasonably possible uninterrupted transfer subject to acceptance of DFL’s reasonable
additional service charges and ongoing payment of the Charges.
3.13 The Customer agrees and accepts that DFL may record calls where a Service provides for such
facility and DFL agrees and undertakes not to keep call recordings for purposes other than as
allowed in law (network, services and incident performance monitoring and management) and for
no longer than allowed in law.
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4. Use of the Services
4.1 The Services are provided for use by Customer and End Users in the course of Customer’s
business and on the condition that Customer does not resell or otherwise make the Services
available to any other person.
4.2 The Customer undertakes to use the Services, and to procure that each End User uses the
Services, in accordance with the following:
a) the terms and conditions of the Contract, the Legislation and any laws and regulations
applicable to Customer’s use of the Services;
b) any supplier and/or vendor terms and conditions referred to in the Service Terms (the
Customer accepts and agrees that direct access to these terms and conditions will be
provided upon written request, and a failure by the Customer to request such will not relief
the Customer form complying with these terms and conditions) as legally binding under a
Contract; and
c) any reasonable operating instructions as may be notified to Customer by DFL from time to
time.
4.3 Without prejudice to DFL ’s obligations to provide a particular Service, Customer is responsible
for the security of the Customer and End User’s use of the Services including protecting all
passwords, backing-up all data, employing appropriate security devices, including virus checking
software and having suitable disaster recovery processes in place. As such, the Customer remain
responsible for all Charges incurred as a result of a failure to comply with the provisions of this
clause, including fraud and dishonesty.
4.4 Without limiting Clause
4.2, Customer will not and will procure that each End User will not use a
Service to:
a) 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;
b) download, possess or transmit in any way, illegal material;
c) engage in criminal, illegal or unlawful activities;
d) violate or infringe the rights or property of any person, including rights of copyright and
any other Intellectual Property Rights, privacy or confidentiality;
e) 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;
f) send, communicate, knowingly receive, upload or download data or make any calls in such a
way or in such amount that Customer knows or ought reasonably to know will have a
material adverse effect on the DFL Network (or any part of it) or the provision of the
Services or DFL’s customers; and
g) send any ‘significant volume’ of data across the DFL Network without providing DFL with at
least five (5) Business Days’ written notice. For the purposes of this Clause, ‘significant
volume’ means more than five thousand (5,000) calls in fifteen (15) minutes delivered to
one number or the aggregate of calls to non-geographical numbers pointing to one number.
4.5 Where DFL provides telephone numbers to the Customer as part of an inbound solution, such
numbers can only be used for purposes of the inbound solutions and any other use (for outbound
calls for example) will be regarded as a material breach of the relevant Contract.
4.6 The Customer furthermore agrees that it will under no circumstances use telephone numbers
provided by DFL (if any) to make automated outbound calls, and such use will be regarded as
material breach of the relevant Contract.
4.7 Where the Customer receives any telephony Services from DFL, it will ensure that it at all times
keep installation addresses and other relevant details which will have an impact on emergency
services, up to date including postal addresses for telephone numbers validated by the Royal Mail
postcode and address finder and correct any discrepancies forthwith without delay. The Customer
will furthermore fully and without delay cooperate with any audits by DFL to ensure compliance.
4.8 The Customer hereby indemnifies and keep DFL and its Affiliates indemnified and harmless
against all losses, damages, costs or expenses and other liabilities (including all legal costs and
expenses) incurred by, awarded against or agreed to be paid by DFL and any of its Affiliates arising
out of or in connection with any claim made or threatened against DFL or an Affiliate of DFL by a
third party arising out of or in connection with Customer’s or End User’s breach of this Clause 4.
4.9 Where the Customer or an End User uses a Service to access the internet, other networks,
websites or content, the Customer accepts that DFL shall have no responsibility for the same and
that the Customer shall access the same at its own risk. The Customer shall be responsible for all
charges arising from such access.
5. Service Management
5.1 Subject to Clause 5.2 a) DFL will have the right to withdraw or change a Service and to
terminate or vary any affected Contracts for all customers to:
a) comply with any law, regulation or safety requirement; or
b) take into account the withdrawal of or a significant change to the technology used to
provide the Service.
5.2 In relation to any withdrawal or change under Clause 5.1, DFL will:
a) give the Customer not less than three (3) months’ notice, unless made to comply with a
regulatory or mandatory change when DFL shall give as much notice as reasonably
practicable; and
b) use reasonable endeavours to avoid any material adverse impact on the nature or quality
of the Service.
5.3 If Ancillary Equipment is required to be installed, used or maintained at a Site, then the
Customer shall:
a) provide DFL with all necessary assistance, documentation and access to premises and
property to enable DFL to carry out the installation or maintenance on time;
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b) carry out all preparatory work notified by DFL to allow DFL to carry out the installation or
maintenance on time; and
c) at its own cost and expense provide:
6. Charges, Payments and Rebates
6.1 DFL will invoice the Customer electronically for the Charges and Ad Hoc Expenses, payable
under a Contract and the Customer agrees that it will pay invoices by direct debit within seven (7)
days of the date of the invoice.
6.2 All Monthly Recuring Charges will be invoiced monthly in advance, the first invoice to be issued
after Contract conclusion, unless a specific go-live date is agreed as part of implementation of
Services in the Service Transition Form, in which event the agreed go live date will be the date of
invoice of the first Monthly Recurring Charge.
6.3 All Installation Charges will be invoiced in full immediately after Contract conclusion unless
agreed otherwise in an Order Form; and
1) All other Charges and Ad Hoc Expenses will be invoiced monthly in arrears.
6.4 Customer may pay an invoice by a payment method other than direct debit, subject to DFL’s
written agreement.
6.5 The Customer may request a paper invoice, subject to payment of a reasonable administrative
charge. A request for a paper invoice does not suspend the Customer’s obligation to pay the
Charges.
6.6 All amounts payable by the Customer under Contract are exclusive of Value Added Tax which
will be charged in addition
6.7 If the Customer in good faith disputes an invoice or any part thereof and wishes to withhold the
disputed sum, the Customer must notify DFL in writing of the dispute not more than one (1) month
after the date of the invoice and make payment of any undisputed amount in accordance with the
terms of the Invoice. The Customer may still dispute an invoice in good faith more than one (1)
month after the date of the invoice, but the Customer must make payment in full of the invoice
notwithstanding the dispute raised. In each case, the Customer must provide reasonable details of
the dispute to allow DFL to investigate. When the dispute is resolved a Party will settle any amount
owing to the other immediately upon resolution.
6.8 Without limiting any other right or remedy of DFL:
a) if the Customer fails to make any payment due to DFL under a Contract by the due date for
payment, DFL will have the right to charge interest on the overdue amount at the rate of
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8% per cent per annum above the then current Bank of England base rate, accruing on a
daily basis from the due date until the date of actual payment of the overdue amount,
whether before or after judgment and compounding quarterly;
b) if a direct debit is dishonoured or cancelled, DFL will have the right to make a reasonable
administration charge;
c) DFL may set off any amount owing to it or its Affiliates by the Customer against any
amount payable by DFL to the Customer; and
d) if the Customer has not paid an invoice by the due date DFL shall be entitled to suspend
any further deliveries of any Ancillary Equipment or the provision of any Services until DFL
has been paid in full.
6.9 All Charges payable by the Customer to DFL will be paid free from set off or retention of any
amounts due by DFL or any of its Affiliates to the Customer under any Contract, this agreement or
any other agreement.
6.10 Subject to Clause 8.2 c) DFL may vary the Charges at any time by giving the Customer one (1)
month’s notice to reflect changing arrangements with any Third-Party Operator or changing legal,
regulatory or business requirements. The revised Charges will apply to all Services provided after
the effective date of the notice of change.
6.11 Following completion of the Service Transition Form, the Supplier may, at its sole discretion,
provide the Customer with an Updated Order Form that reflects any changes in the Charges and
Services for any additional equipment, software and services identified during Service Transition
and captured in the Service Transition Form or other agreed documentation, as to be included
under the Services.
6.12 DFL may increase the Charges on an annual basis, typically during April, in line with the Retail
Price Index and the Consumer Price Index and other inflationary measures.
6.13 Upon expiry or termination of a Contract, should the Customer be required to vacate (including
the removal of Customer Equipment) any premises and/or Site owned or leased by DFL or DFL’s
third party used in the delivery of the Service, the Customer must immediately make good any
damage to any premises and/or Site caused by them vacating the premises and/or Site and the
Customer must carry this out to DFL’s satisfaction.
6.14 If the Customer fails to carry out the necessary work in compliance with clause 6.13, it must
pay DFL on demand and as a debt any and all costs and expenses, Charges and Ad Hoc Expenses
incurred by DFL in making good such damage caused.
7. Credit Limit
7.1 DFL may perform a credit check on the Customer if the Customer’s financial circumstances
change subsequent to acceptance of an Order Form and may impose a Credit Limit on the Customer’s account. Any Credit Limit imposed can be amended on notice. If the Customer exceeds
such Credit Limit:
a) DFL may demand immediate payment of all unpaid Charges; and
b) the Customer will remain responsible for all Charges incurred, including those exceeding the
Credit Limit.
8. Term and Termination
8.1 A Contract will commence on the Service Commencement Date and continue for the Minimum
Term whereafter it may be terminated by either party on no less than three (3) months’ written
notice, such notice to expire no earlier than the last day of the Minimum Term. Where the Customer
purchases Service that has a shorter roll and notice period, the provisions contained in the relevant
Service Terms will override this clause 8.1 in so far as it contradicts this clause 8.1.
8.2 The Customer may terminate a Contract by giving notice in writing to DFL:
a) as provided for in clause 8.1;
b) if DFL is in material breach of the Contract which, if capable of remedy, has not been
remedied within thirty (30) days of receipt of written notice specifying the breach in
reasonable detail and requiring its remedy;
c) on thirty (30) days’ notice if any changes made to the Services pursuant to Clause 6.10 are
to Customer’s material detriment; or
d) forthwith if the circumstances in Clause 13.4 arise.
8.3 Where a Contract comprises multiple Services, the Customer’s right of termination will be
construed in relation to the affected Service only.
8.4 DFL may terminate any or all Contracts (or part thereof at DFL’s sole discretion) by giving
notice to the Customer:
a) as provided for in clause 8.1;
b) if the Customer is in material breach of a Contract, which if capable of remedy, has not
been remedied within thirty (30) days of written notice specifying the breach in reasonable
requiring its remedy;
c) forthwith, if the Customer makes any voluntary arrangements with its creditors or becomes
subject to an administration order or goes into liquidation, whether voluntary or
compulsory (other than for the purpose of a solvent reconstruction or amalgamation) or an
encumbrancer relevant details which will have an impact on emergency services, up to date
including postal addresses for telephone numbers validated by the Royal Mail postcode and
address finder and correct any discrepancies forthwith without delay. The Customer will
furthermore fully and without delay cooperate with any audits by DFL to ensure
compliance. takes possession of or receiver is appointed in respect of its assets;
d) under Clause 3.4;
e) forthwith if the circumstances in Clause 13.4 arise; or
f) f) forthwith if the Customer fails to pay any invoice within fourteen (14) days of date of
invoice.
9. Suspension
9.1 DFL may, without prejudice to any other right which it might have, elect to suspend forthwith
the provision of all or part of a Service under any or all Contracts until further notice on notifying
the Customer either orally (confirming such notification in writing) or in writing if:
a) DFL is entitled to terminate a Contract;
DFL has reasonable grounds to believe that the Customer or an End User is using the
Service in breach of Clause 4;
c) DFL or any third-party providing equipment or services to DFL in connection with the
provision of the Services is obliged to suspend the same in order to comply with any
legislation, an order, instruction or request of government, regulatory authority, emergency
services organisation or other competent authority;
d) d) the Customer exceeds the Credit Limit under Clause 7.1 and has not remedied this
situation within five (5) Business Days of receiving written notice from DFL requiring
Customer to do so.
9.2 If DFL exercises its rights under:
a) Clause 9.1 as a consequence of the breach, fault, act or omission of the Customer or an End
User, the Charges will continue to be payable and the Customer will pay to DFL all
reasonable costs and expenses incurred by the implementation of such suspension and any
recommencement of the provision of Services; or
b) Clauses 9.1 b) or 9.1 c), DFL will limit the suspension to the Service in respect of which the
breach has occurred or to which it is obliged to so suspend.
10. Liability
10.1 Nothing in a Contract will exclude or limit a Party’s liability arising from or in connection with:
a) any death or personal injury caused by the negligence of such Party, its agents, subcontractors, officers, directors or employees;
b) any fraudulent acts or omissions of or fraudulent representations made by such Party, its
agents, sub-contractors, officers, directors or employees;
c) any breach of statutory implied terms as to title;
d) any other liability which cannot be excluded or limited by law;
e) any indemnity given by such Party in a Contract unless otherwise expressly agreed in
writing with specific reference to the applicable indemnity clause number;
f) any breach of Clauses 16 or 17; and
g) any liability to pay the Charges.
10.2 Subject to Clause 10.1, a Party will not be liable to the other Party in contract, tort (including
negligence) breach of statutory duty or otherwise for:
10.3 Subject to Clauses 10.1 and 10.2, a Party’s total aggregate liability under or in connection with
all Contracts to the other is as follows:
a) for damages to fixed property caused by the negligence of its employees and agents in
connection with a Contract shall not exceed five-hundred-thousand pounds (£500,000) for
any event or series of connected events; and
b) for all other loss or damage which does not fall within sub-clauses (a), shall not exceed
twice the Recurring Charges paid by the Customer under all Contracts during the contract
year in which the claim arises, subject to a maximum of five-hundred-thousand pounds
(£500,000).
10.4 Where service credits are provided for in Service Terms, the service credits will be the
Customer’s sole remedy for the relevant failure and/or breach.
10.5 Except as expressly set out in a Contract and to the extent permissible by law, all other
warranties, terms and conditions, guarantees as to quality or fitness for a particular purpose of the
Services or any other conditions or guarantees, whether express or implied by law, custom or
otherwise are excluded.
10.6 The Customer accepts and agrees that due to the nature of software, equipment and
telephone services, the compatibility and uninterrupted or undegraded functioning thereof cannot
be guaranteed and as a result, DFL will under no circumstances be liable for any damages, losses,
penalties or claims whatsoever (subject to Clause 10.1 as a result of incompatibility, interruption or
degradation for reasons that are not within DFL’s control.
Equipment, Risk and Title
11.1 Property in and ownership of the:
a) Ancillary Equipment remains with DFL or its suppliers at all times;
b) Customer Equipment remains with Customer at all times; and
c) Purchased Equipment remains with DFL or its suppliers until the Customer has paid DFL the
Charges for the Purchased Equipment in full, when property and ownership will pass to the
Customer;
11.2 The Customer must clearly identify any Ancillary Equipment at the Sites as DFL’s property.
11.3 Risk in and liability for Ancillary Equipment and Purchased Equipment passes to the Customer
on delivery of each item thereof. The Customer must insure the Ancillary Equipment in respect of
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all relevant risks from delivery. The Customer will provide a copy of the insurance policy to DFL
upon request.
11.4 The Customer must:
a) not, nor permit any other person, to sell, let, transfer, dispose of, mortgage, charge, modify,
repair, service, tamper with, remove or interfere with the Ancillary Equipment or suffer any
distress, seizure or execution to be levied against any Ancillary Equipment;
b) keep the Ancillary Equipment at the Site, with the exception of mobile devices;
c) house, keep and use any Ancillary Equipment in accordance with any written instructions
notified to the Customer by DFL from time-to-time or, in the absence of instructions, to
the same standard as a reasonable owner of the Ancillary Equipment would if it were their
property;
d) in the case of an emergency, take whatever steps as are reasonably necessary to safeguard
the Ancillary Equipment and notify DFL as soon as possible the circumstances of such
emergency;
e) ensure the Ancillary Equipment is kept safe and not damaged;
f) not remove, tamper with or obliterate any words or labels on the Ancillary Equipment or
any part thereof; and
g) permit DFL or its agent to inspect, test and maintain the Ancillary Equipment at all
reasonable times and on reasonable notice.
1) 11.5 The Customer must immediately notify DFL of any loss or damage to any Ancillary
Equipment. Without prejudice to DFL’s other rights and remedies, where the Customer
breaches the provisions of this Clause 11 :
a) the Customer indemnifies and promises to pay on demand DFL for the costs of repairing or
replacing any Ancillary Equipment damaged by Customer’s or End User ’s breach of this
Clause 11; and
b) DFL will not be liable to the Customer for any failure to provide the Service as a result
thereof.
11.6 DFL will replace Ancillary Equipment where DFL is satisfied that there is a fault with it. Under
such circumstances the Customer is required to immediately return the faulty Ancillary Equipment
to DFL.
11.7 DFL does not provide any warranty in respect of any Purchased Equipment but, where
possible, will provide the Customer with the benefit of any manufacturer’s warranty.
11.8 DFL will be entitled, after termination (for any reason whatsoever) of a Contract by giving
notice of its intention to repossess the Ancillary Equipment, to:
a) require the Customer (at the Customer’s cost and risk) to immediately return the Ancillary
Equipment to DFL; or
b) enter upon any premises with such transport as may be necessary and repossess any
Ancillary Equipment.
11.9 The Customer agrees and accepts that it will not receive ownership of any telephone numbers,
dialling codes and/or static IP addresses and that DFL can, on written notice, remove it from the
Customer or charge for retention where it has been inactive for six consecutive months or usage
amounted to 5 minutes or less during any calendar month, unless DFL has been notified in advance
in writing that it is part of a disaster recovery plan.
12. Sites and Access
12.1 The Customer must procure at its own expense all permissions, licenses, waivers, consents,
registrations, Site access and approvals necessary for DFL to deliver, install and provide the
Services at the Sites.
12.2 Where Ancillary Equipment is required to be installed at a Site, the Customer must prepare the
Site in accordance with DFL’s reasonable instructions.
12.3 Where Ancillary Equipment is required to be installed at a Site, the Customer must prepare the
Site in accordance with DFL’s reasonable instructions.
12.4 The Customer will provide or procure a safe working environment at the Site for DFL
employees and anyone acting on DFL’s behalf. DFL’s employees or anyone acting on DFL’s behalf
will observe the reasonable regulations affecting the Site as previously advised in writing to DFL.
13. Force Majeure
13.1 A party will not be liable for any delay in performing or failure to perform any of its obligations
under a Contract (other than the Customer’s obligation to pay the Charges) which occurs as a
result of a Force Majeure Event.
13.2 If either party is delayed or prevented from or hindered in performing its obligations under a
Contract by a Force Majeure Event, such party shall:
a) give notice in writing of such delay or prevention to the other party as soon as reasonably
possible;
b) use all reasonable endeavours to mitigate the effects of such delay or prevention on the
performance of its obligations under the Contract; and resume performance of its
obligations as soon as reasonably possible after the removal of the cause of the delay or
prevention;
13.3 A party cannot claim relief if the Force Majeure Event is attributable to that party’s wilful act,
negligence or failure to take reasonable precautions against the relevant Force Majeure Event.
13.4 In the event that a Force Majeure Event continues for a period of sixty (60) days, the Party not
subject to the Force Majeure Event will have the right to terminate in accordance with Clauses 8.2
and 8.4.
14. Dispute Resolution
14.1 If a dispute arise out of or in connection with a Contract or the performance, validity or
enforceability of it, then (except for the recovery of Charges, equitable, interim, interlocutory or
urgent relief including injunctions) the disputing party will give the other written notice of the
dispute setting out the nature and full particulars together with supporting documents. On service
of the dispute notice both parties shall attempt in good faith to resolve the dispute.
14.2 No party may commence any court or alternative dispute resolution proceedings in relation to
the whole or part of the dispute (other than as provided for in Clause 14.1) until thirty (30) days
after service of the dispute notice.
15. Warranties and Representations
15.1 Each party warrants, represents and undertakes that:
a) it has full capacity and authority to enter into and perform a Contract;
b) Contracts(s) will be executed by duly authorised representatives of that party;
c) there are no actions, suits or proceedings or regulatory investigations pending or, to that
party’s knowledge, threatened against or affecting that party before any court or
administrative body or arbitration tribunal that might affect the ability of that party to
meet and carry out its obligations under this agreement; and
d) it has and will continue to hold at its own expense all permissions, licences, waivers,
consents, registrations and approvals necessary for DFL to deliver, install and provide the
Services at the Sites.
15.2 DFL warrants, represents and undertakes that:
a) it will perform and procure the performance of its obligations under Contracts in
compliance with the Legislation;
b) it has and will continue to hold, all consents and regulatory approvals necessary to provide
the Services; and
c) it shall discharge its obligations under Contracts using personnel of required skill,
experience and qualifications and with all due skill, care and diligence.
d)
15.3 The Customer warrants that any information which it (or any End User or Affiliate) provides to
DFL in connection with the Contract or the provision of Services is and will be complete and
accurate.
16. Confidentiality
16.1 Neither Party will disclose to any third party without the prior written consent of the other
Party any Confidential Information which is received from the other Party as a result of a Contract.
Both Parties agree that any Confidential Information received from the other Party will only be
used for the purposes of performing its obligations under a Contract. These restrictions will not
apply to any information which:
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a) is or becomes generally available to the public other than as a result of a breach of an
obligation under this Clause 16; or
b) is acquired from a third party who owes no obligation of confidence in respect of the
information; or
c) is or has been independently developed by the recipient without use of the other Party ’s
Confidential Information.
16.2 Notwithstanding Clause
16.1, either Party will be entitled to disclose the Confidential
Information of the other Party to:
a) a third party to the extent that this is required by any court of competent jurisdiction or by
a governmental or regulatory authority or where there is a legal duty or requirement (other
than a contractual duty or requirement) to disclose Confidential Information;
b) another party solely where it is necessary to discharge an obligation under a Contract. Prior
to disclosing any Confidential Information pursuant to this Clause 16.2 b), the disclosing
Party shall ensure that any recipient is subject to obligations of confidentiality of a nature
equivalent to those set out in this Clause 16. Each Party shall remain liable to the other
Party for any breaches of this Clause 16.2 b) by any recipient.
16.3 The Customer shall keep all passwords and other security codes (“Codes”) issued by DFL
confidential and only disclose them to persons within the Customer’s business on a need-to-know
basis and to no other third parties except as otherwise permitted under the Contract. DFL shall be
entitled to change the Codes from time to time after first providing where reasonably practicable
written notice to Customer detailing the change.
16.4 The Customer shall DFL immediately if the Customer suspects that the confidentiality of the
Codes has been prejudiced and DFL shall assist the Customer to change all affected Codes. The
Customer remains responsible for all actions committed by any person whilst logged on using
Codes.
17. Intellectual Property
17.1 All Intellectual Property Rights in the Services will be owned by DFL, its licensors and its
Affiliates.
17.2 DFL grants to the Customer a non-exclusive, royalty-free licence to use such within the United
Kingdom, for the sole purpose of utilising the Services in accordance with the terms of the Contract
and any usage guidelines that DFL may provide from time to time. The Customer shall not
reproduce any software provided by DFL, save that the Customer may make a single back-up copy
of such software for security purposes only. The Customer shall not modify, adapt, translate,
reverse engineer or disassemble such software.
17.3 The Customer grants to DFL and its Affiliates a non-exclusive, royalty-free licence to use, copy
and interface with any Intellectual Property Rights within the United Kingdom in any Customer
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Equipment and the information and data in the Services or the purpose of performing DFL’s
obligations under the Contract.
17.4 Notwithstanding Clause 16.2, Customer will not be entitled to use the name, trademark, trade
name or other proprietary identifying marks or symbols of DFL or its Affiliates without DFL’s prior
written consent.
17.5 The Customer will not and will procure that its personnel and where used, its sub-contractors
and their personnel, 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 in the
Services.
17.6 The Customer will not obtain any rights in respect of any of Intellectual Property Rights in the
Services by virtue of the Contract.
18. Data Protection
18.1 This Clause 18 applies only to the extent that DFL is Processing Personal Data on behalf of the
Customer.
18.2 Both Parties will comply with all applicable requirements of the Data Protection Legislation.
18.3 The Parties acknowledge that for the purposes of the Data Protection Legislation, the
Customer is the Controller and DFL is the Processor.
18.4 Clause 18.8 sets out the scope, nature and purpose of Processing by DFL, the duration of the
Processing, the types of Personal Data and the categories of Data Subject.
18.5 Without prejudice to the generality of Clause 18.2:
a) the Customer will ensure that it has all necessary appropriate consents and notices in place
to enable lawful transfer of the Personal Data to DFL for the purposes of the Contract; and
b) DFL will:
iii. ensure that it has in place appropriate technical and organisational
measures designed to protect against a Personal Data Breach,
appropriate to the harm that might result from such Personal Data
Breach and the nature of the Personal Data to be protected. DFL shall
have regard to the state of technological development and the cost of
implementing any measures, including, where appropriate
A. pseudonymising and encrypting Personal Data;
B. ensuring confidentiality, integrity, availability and resilience of its systems and services;
C. ensuring that the availability of and access to Personal Data can be restored in a timely
manner after an incident; and
D. regularly assessing and evaluating the effectiveness of the technical and organisational
measures adopted by it;
c) notify the Customer without undue delay if it becomes aware of a Personal Data Breach;
d) assist the Customer in responding to any requests from Data Subjects 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, save that if this is not within the reasonable remit of the Services ,
this will be at Customer’s cost;
e) at the Customer’s written direction, delete (or put Beyond Use) or return Personal Data to
Customer once provision of the Services has ceased, unless required by a legal obligation to
store Personal Data; and
f) maintain records and information to demonstrate its compliance with Clauses 18.5, 18.6 and
18.7 and where this is not sufficient, allow for audits by the Customer or the Customer’s
auditor solely to demonstrate compliance, at the Customer’s cost, provided that:
i. the Customer:
A. will not exercise its audit rights more than once in any three-year period save where the
Customer reasonably believes that owing to a Personal Data Breach a further audit is required;
B. gives at least thirty (30) days’ written notice of its intention to audit, including specific details on
the scope of the audit and any required evidence;
C. conducts its audit during normal business hours and limits its audit to a maximum of two (2)
Business Days; and
D. takes all reasonable measures to prevent material business interruption to DFL
ii. such audit is subject to the confidentiality provisions of the Contract; and
DFL may demonstrate its compliance with Clauses 18.5 b) and 18.7 by
complying with an approved code of conduct or by obtaining an approved
certification.
18.6 The Customer consents to DFL appointing the Third-Party Processors to assist it in providing
the Services. If DFL intends to change any of the Third-Party Processors, it will notify Customer by
updating the Third-Party Processor List, thereby giving the Customer the opportunity to object to
such change.
18.7 DFL shall ensure that all agreements with the Third-Party Processors will incorporate terms
that are substantially similar to those set out in this Clause 18. If a Third-Party Processor fails to fulfil its data protection obligations to the Customer, DFL will remain fully liable to the Customer for
such Third-Party Processor’s obligations.
18.8
a) Scope of Processing – DFL Processes Personal Data to enable it to provide, manage,
enhance, review the Services and to discharge any legal obligation imposed upon it.
b) Nature and Purpose of Processing – DFL Processes the Personal Data to provide the
Services.
c) Categories of Personal Data – Email addresses, internal phone numbers and data stored
within call recordings.
d) Categories of Data Subject – the Personal Data Processes shall concern only the
following categories of Data Subjects:
e) Duration of Processing – during the provision of the Services, DFL shall Process Data for
no longer than is necessary for the purposes for which it is Processed.
19. Trial Services
19.1 From time-to-time DFL may invite the Customer to try Trial Services. The Customer may
accept or decline any such trial. Trial Services are provided for evaluation purposes “as is” and
not for live or commercial use, are not supported, may contain defects, and may be subject to
additional terms.
19.2 Trial Services are not considered “Services” and the exclusions set out in Clause 9.4 shall
apply to all Trial Services. DFL may terminate any Trial Service at any time in its sole discretion
and is under no obligation to make any Trial Service commercially available.
20. Severance
20.1 If any provision of a Contract (or part of any provision) is found by any court or other
authority of competent jurisdiction to be invalid, illegal or unenforceable:
a) the provision shall apply with the minimum modification necessary to make it legal, valid
and enforceable; or
b) to the extent that modification under Clause 20.1
a) cannot be implemented, such
provision or part-provision shall, to the extent required, be deemed not to form part of
such Contract, and the validity and enforceability of the other provisions of such
Contract shall not be affected.
21. Assignment and Subcontracting
21.1 The customer will not assign, transfer, mortgage, charge, declare a trust over or deal in any
other manner with any or all of its rights and obligations under a contract without the prior written
consent of DFL, which consent will not be unreasonably withheld.
21.2 DFL will be entitled to make use of sub-contractors in the rendering of the Services and supply
of Purchased Equipment but will remain fully liable for provision of the Services and supply of the
Purchased Equipment as set out in the Contract.
22. Waiver
22.1 A waiver of any right or remedy under a Contract or by law is only effective if given in writing
and expressed to be a waiver and will not be deemed a waiver of any subsequent breach or default.
22.2 A failure or delay by a Party to exercise any right or remedy provided under a 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 a Contract or by law will prevent or restrict the further exercise of that
or any other right or remedy.
22.3 The Customer may not bring any dispute or claim arising out of or in connection with a
Contract or its subject matter or formation (including non-contractual disputes or claims) after the
date twelve (12) calendar months after the date it first became aware or ought reasonably to have
become aware of the facts giving rise to the liability or alleged liability or within the relevant
statutory limitation period, whichever is the earlier.
23. Third Party Rights
23.1 The Phone-paid Service Authority may directly enforce the provisions of a Contract under the
Contract (Rights of Third Parties) Act 1999 in so far as such provisions relate to regulation of a
Service by the Phone-paid Services Authority.
23.2 Each Contract will ensure for the benefit of DFL and its Affiliates from time to time.
23.3 Except as expressly provided in Clauses 23.1 and
23.2, a person who is not a party to a
Contract will not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce
any term of a Contract.
23.4 The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement
under a Contract are not subject to the consent of any other person.
24. Notices
24.1 All contractual notices for a Contract must be in writing and be sent either by letter or email as
follows:
a) In the case of DFL:
b) in the case of Customer:
24.2 Operational correspondence should be sent to a Party’s usual operational contact(s).
24.3 A Party may change the details recorded for it in this Clause 24 by notice to the other in
accordance with Clause 24.1.
24.4 Notices are effective where:
a) delivered by hand, at the time of signature of a delivery receipt or at the time the notice is
left at the relevant address;
b) sent by guaranteed next Business Day delivery service providing proof of postage, at 09:00
am on the second Business Day after the posting date;
c) sent by email, on the sending date in the sender’s time zone where sent before 5 pm in the
recipient’s time zone on a Business Day or on the next Business Day where sent after 5pm,
in each case as verified by written or automated notification or by electronic log.
25. Non-Solicitation and TUPE
25.1 Neither party shall (except with the prior written consent of the other party) directly or
indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the
other party any person employed or engaged by such other party in the provision of the Service or
(in the case of the Customer) in the receipt of the Services at any time during the Contract Term or
for a further period of 6 months after the termination of this agreement other than by means of a
national advertising campaign open to all comers and not specifically targeted at any of the staff of
the other party.
25.2 If either DFL or the Customer commits any breach of Clause 25.1, the breaching party shall, on
demand, pay to the claiming party a sum equal to one year’s basic salary or the annual fee that was
payable by the claiming party to that employee, worker or independent contractor plus the
recruitment costs incurred by the claiming party in replacing such person.
25.3 The Customer warrants that the commencement or rendering of the Services by DFL will not
be or cause a relevant transfer to which TUPE or the Directive will apply in relation to any
employees of the Customer or any of its suppliers, agents or sub-contractors and the Customer hereby agrees to indemnify and hold DFL harmless on demand against any costs, expenses, losses,
damages or other pecuniary impacts that may be claimed or ordered against DFL or that it may
incur as a result of any individual(s) claiming that its employment transferred to DFL or any of its
suppliers, agents or sub-contractors as a result of the provisions of TUPE or the Directive.
26. Variations
26.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties
(or their authorised representatives).
26.2 Without prejudice to the generality of the foregoing, DFL may amend Contracts as a
consequence of:
a) any legal or regulatory change, or where required by a regulator of DFL or a Third-Party
Operator; or
b) where required to ensure that DFL complies with any amended terms and conditions upon
which a Third-Party Operator makes a Service available to DFL.
26.3 DFL reserves the right at any time to make a change to the Third-Party Operator.
27. Entire Agreement
27.1 Each Contract constitutes the entire agreement between the Parties and supersedes and
extinguishes all previous agreements, promises, assurances, covenants, indemnities, commitments,
warranties, representations, statements and understandings between them howsoever made,
whether express or implied and whether made innocently or negligently (“Statements”) relating to
its subject matter.
27.2 Each Party acknowledges that in entering into a Contract it does not rely on and shall have no
remedies in respect of any Statements that are not expressly stated in the applicable Contract.
27.3 Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or
negligent misstatement based on any Statements or terms of a Contract.
28. Survival of Clauses
28.1 The expiry or termination of a Contract will not affect any provisions of it as are expressed to
operate or have effect after its termination and will be without prejudice to any right of action
already accrued to either Party in respect of any breach of a Contract by the other Party.
29. Anti-Bribery
29.1 Both Parties shall:
a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anticorruption including but not limited to the Bribery Act 2010;
b) have and shall maintain in place and enforce throughout the term of all and any Contract(s)
its own policies and procedures, including adequate procedures under the Bribery Act 2010,
to ensure compliance with the Bribery Act 2010 and any guidance thereunder; and
promptly report to the other party any request or demand for any undue financial or other
advantage of any kind received or offered to the reporting party in connection with the
performance of any Contract.
30. Announcements
30.1 The parties can make, or permit a person to make, a public announcement concerning the
existence of a Contract and relationship between the parties. The parties will furthermore provide
such reasonable assistance as the other may require for purposes of preparing and agreeing case
studies for public discloser from time-to-time.
30.2 Other than as provided for in Clause 30.1, no party shall make, or permit any person to make a
public announcement concerning the specific terms of any Contract or any wider transaction
contemplated without the prior written consent of the other party, except as required by law, any
governmental or regulatory authority, any court or other authority of competent jurisdiction.
31. Governing Law and Jurisdiction
a) 31.1 Contracts shall be governed by and constructed in accordance with law of England and
Wales, and the courts in England and Wales shall have exclusive jurisdiction to handle any
disputes or claim (including non-contractual disputes and claims) arising out of or in
connection with a Contract or its subject matter or formation
