Standard Terms and Conditions

 

TABLE OF CONTENTS.                                                                                                                                                              

  1. GENERAL.
  2. SERVICES.
  3. BILLING AND PAYMENT.
  4. TERM AND RENEWAL.
  5. TERMINATION AND SUSPENSION.
  6. EQUIPMENT AND SHIPPING.
  7. CONFIDENTIALITY.
  8. DATA PROTECTION AND SECURITY.
  9. SERVICE LIMITATIONS.
  10. USE RESTRICTIONS AND CUSTOMER RESPONSIBILITIES.
  11. CHANGES TO SERVICES AND TERMS.
  12. INTELLECTUAL PROPERTY RIGHTS AND LICENSES.
  13. REPRESENTATIONS AND WARRANTIES.
  14. LIABILITY.
  15. DISPUTES.
  16. MISCELLANEOUS.
  17. DEFINED TERMS.

 

 

EQUITY BUSINESS TERMS AND CONDITIONS.

1. GENERAL

  • APPLICATION OF TERMS.

These Equity Business Terms and Conditions form part of the Service Agreement entered into between Equity Network Limited, company number 07458661 (“Equity”), and the “Customer” as identified in the Service Agreement (“Customer”). These Equity Business Terms and Conditions and all other documents, web pages or other content expressly incorporated by reference herein are referred to throughout as the collective “Terms”. The Terms, together with the Service Agreement and its schedules, exhibits, and similar attached documents, and all Service Orders and SoWs entered into by the parties under the Service Agreement, constitute the “Customer Agreement”, which governs the acquisition and use of Services and Equipment from Equity, by or on behalf of the Customer.

  • SERVICE ORDERS.

Customer may order Services or Equipment from time to time by entering into Service Orders with Equity.  Each Service Order shall:  (a) be subject to the Terms, and any other terms of the Service Agreement intended to apply to such Service Order, (b) become effective as of the date that Equity and Customer enter into such Service Order (or such other effective date expressly set forth in the Service Agreement) and (c) continue in effect until the expiration of the “Initial Term” defined in the Service Agreement (the “Initial Term”) (i.e., each Service Order shall be coterminous with the Customer Agreement), unless earlier terminated as set forth herein.  Service Orders entered into subsequent to the parties’ entering into the Service Agreement shall be deemed to amend and become part of the Customer Agreement.

Unless otherwise permissible and stated clearly in writing, termination of one Service Order shall not result in the termination of or otherwise affect any other Service Order, or the Parties’ rights or obligations thereunder, and termination of particular Services under a Service Order shall not result in the termination of or otherwise affect the other Services ordered under such Service Order (or the Services ordered under any other Service Order) or the Parties’ rights or obligations with respect to such other Services.  However, termination or expiration of the Customer Agreement shall result in the immediate termination or expiration, as applicable, of all Service Orders and all Services ordered thereunder.

 

2. SERVICES

    Equity shall, itself or through one or more of its Affiliates, vendors, subcontractors or other service-providers (each, a “Partner” of Equity), provide the Services ordered by Customer from time to time in accordance with the terms and subject to the conditions of the Customer Agreement.  For avoidance of doubt, nothing in these Terms shall prohibit Equity from subcontracting with its Affiliates or Partners for the performance or delivery of Services or performance of its obligations or duties under the Customer Agreement, provided that Equity shall remain responsible for performance of such obligations or duties.

    • SUBSCRIPTION SERVICES
      • Equity hereby grants Customer the non-exclusive, non-transferable (except as provided herein) right to access and use the Services ordered by Customer during the term of the applicable Service Order (or Service Agreement under which the applicable Service Order is made), for Customer’s own internal business purposes, subject to the terms and conditions of the Customer Agreement.
      • User Limits. Customer’s use of Subscription Services is subject to limitations on the number of Agents authorised to use the Services. Unless the Customer Agreement provides otherwise: (a) a specified quantity of Subscription Services in a Service Order limits the number of Agents and corresponding account logins to the specified quantity; (b) an Agent’s login credentials may be used only by the designated Agent until his or her account is reassigned; and (c) an Agent’s account login may be reassigned to a new individual only when replacing a previously authorised Agent who will no longer use the Services. Customer may designate as Agents only individuals (such as employees and consultants) over whom Customer has sufficient control (contractual or otherwise) to ensure compliance with these Terms.
      • Customer Requirements. Customer shall be responsible for ensuring that its Internet connection, any local network equipment, hardware and software used in connection with the Services, and all related configurations (collectively, “Environment”), adhere to the minimum standards and technical requirements specified in applicable Documentation. Customer agrees to: (a) grant Equity access to Customer’s personnel, facilities and other resources under Customer’s control as Equity may reasonably request in order to perform its obligations under the Customer Agreement; (b) allow Equity, upon reasonable request and subject to compliance with Customer’s reasonable security policies, to conduct an initial assessment of Customer’s network; and (c) make any adjustments to Customer’s Environment that Equity reasonably determines necessary to satisfy the minimum technical prerequisites specified in the applicable
    • IMPLEMENTATION SERVICES

    Equity shall use commercially reasonable endeavours to perform the Implementation Services ordered by Customer as promptly as practicable following Customer’s placement of an order or (if applicable) in accordance with the applicable schedule specified in the Service Agreement.  Implementation Services shall be provided on-site via Equity’s Technology Services Team.

    • PROFESSIONAL SERVICES

    From time to time, Customer may request, and Equity may agree to perform, work beyond the scope of the Implementation Services and/or Support Services to be provided by Equity under the Customer Agreement. The fees for such additional services (“Professional Services”) shall be based on Equity’s standard consultancy rates, unless the parties agree otherwise in writing.  Professional Services shall be subject to these Terms and such other terms as the parties may agree in a Statement of Work (“SoW”). 

    • TECHNICAL SUPPORT

    Equity provides technical support for Services to its customers via telephone, e-mail and web chat.  Support shall be available during Equity’s regular business hours, which are 8:30am to 5.30pm GMT/BST, unless otherwise specified in the applicable Support Plan.  Equity may charge Customer (at Professional Service rates) for its time and expenses in investigating and attempting to remedy service issues that are (a) related to Unsupported Services or (b) reasonably diagnosed as problems with Customer’s Environment rather than the Services supplied by Equity.

    • UNSUPPORTED SERVICES

    Notwithstanding anything to the contrary herein, neither Equity nor any of its designated Affiliates shall be required to provide technical support for, and Equity disclaims all service level commitments, representations and warranties as to the performance of, Services that are either (a) used for a purpose or in a manner inconsistent with the Documentation, (b) used with Unsupported Devices or with supported equipment that does not comply with Clause 6.5 (Unsupported Devices, etc.) or (c) accessed in an Environment for which the Customer has waived a network assessment or failed to make requested adjustments, as contemplated by Clause 2.2.3 (Customer Requirements) above (the Services described in clauses (a) through (c) are referred to collectively as “Unsupported Services”).

     

     3. BILLING AND PAYMENT

    Except to the extent that the Service Agreement expressly provides otherwise, the monthly Support Fees shall be billed in advance of each month’s Service, and subscription and other usage charges shall be billed in arrears. The billing of fees for Implementation and Professional Services and other one-time Service charges, and the billing of Support Fees and other monthly recurring charges, shall commence on the dates as specified in the Service Agreement. 

    Fees for any additional Subscription Services added during a calendar month shall be pro-rated based on the number of days billed during that month.

    • INVOICE CYCLE.

    An initial order invoice will be made available to the Customer through their Sales Account Manager shortly after execution of the Service Agreement and placing an initial order via a Service Order. Thereafter, invoices shall be made available on a monthly basis on or around the first day of each calendar month and shall be consolidated with any other Service Orders the Customer may have with Equity. 

    • PAYMENT AND CREDIT

    Except to the extent the Service Agreement provides otherwise, all amounts due and payable under the Customer Agreement shall be payable via direct debit.  Payment is due within fourteen (14) days from the invoice date.  All Services provided to Customer on credit shall be subject to Equity’s review and approval of Customer’s credit, and Equity, in its reasonable discretion, may discontinue or limit Customer’s credit at any time, require a deposit or bank guarantee, or place a limit on the amount of charges that Customer can incur before making payment.  By providing a signed direct debit mandate to Equity, Customer authorises its bank to pay Equity for all amounts due and payable hereunder in respect of the Services and Equipment ordered by Customer, and Customer agrees to notify Equity promptly of any change to such information.  Unpaid balances are subject to a late payment charge that accrues from the due date at the rate of 3% per annum above the base rate for the time being of the Bank of England or the maximum amount permitted by applicable Law, whichever is less. 

    • Customer is responsible for paying all taxes, levies, imports, duties, charges, fees or similar governmental assessments, including value-added tax (“VAT”), sales, use, withholding, public utility or universal service taxes or fees, assessed or assessable by any governmental, fiscal or other authority, or recoverable by Equity, relating to the sale and provision of Services to Customer and Customer’s use of Services (collectively, “Taxes”), other than those assessable against Equity based solely on its income. 

    Equity shall invoice Customer for all such Taxes that Equity reasonably believes it has a legal obligation to collect and remit under applicable Law, and Customer shall pay all Taxes so invoiced.  Any Taxes set forth in a quote or Service Order shall be calculated by Equity in good faith based on the service address or addresses provided by Customer, but shall be non-binding estimates only.  If Customer asserts an exemption from any Taxes, Customer shall deliver to Equity a valid tax exemption certificate authorised by the appropriate taxing authority, and Customer shall be liable for any Taxes assessed prior to such delivery.  In no event shall Customer make any deduction to any amount payable under the Customer Agreement for or on account of any Taxes and/or withholdings of any nature imposed by any governmental, fiscal or other authority, except as required by law.  If Customer is required by Law to make any such deduction, it will (a) first notify Equity of such obligation, (b) furnish Equity with receipts evidencing remittance of the money, and (c) pay such additional amounts as are necessary to ensure receipt by Equity of the full amount that Equity would have received but for the deduction. 

    • DISPUTED AMOUNTS.

    Customer agrees to pay all amounts invoiced under the Customer Agreement without counter-claim, withholding, set-off or deduction, other than as set forth in this Clause 3.5 (Disputed Amounts).  If Customer believes in good faith that an invoiced amount was not actually incurred under the Customer Agreement, then Customer may dispute such invoiced amount by providing notice by email to accounts@equitynetworks.co.uk within thirty (30) days of the date of the first invoice in which the amount was invoiced, and such notice shall set forth the amount in dispute and the basis of the dispute in reasonable detail.  Failure to so dispute an invoiced amount within such 30-day period shall constitute a complete and irrevocable waiver of Customer’s right to dispute the amount. The parties shall attempt to resolve the dispute in good faith for a period of 30 days from the notice, in accordance with the procedures set forth in Clause 17.1.  If any charges remain in dispute at the end of the 30-day period, Customer shall pay the full amount due within 10 days, otherwise Equity may exercise any available remedies for breach (without regard to any further notice requirement or opportunity for cure under these Terms, which shall be deemed waived).

    • THIRD-PARTY

    Equity may offer to bill and collect payment for services (such as broadband, hosted VoIP, etc.) provided to Customer by a third-party provider pursuant to a separate service contract between Customer and such third-party (“Third-Party Services”).  Customer authorises Equity to bill, collect and remit to the Third-Party Service provider any amounts chargeable for Third-Party Services in accordance with the procedures applicable to Services under this Clause 3 (Billing and Payment).  Customer acknowledges that: (a) Equity makes no representations or warranties regarding, and shall have no responsibility or liability whatsoever for, Third-Party Services; (b) Equity shall not be deemed a reseller of Third-Party Services; and (c) Customer shall look solely to the Third-Party Service provider for any remedies relating thereto.

    • SERVICE FEE RATES; PRICING

    When Equity and Customer enter into a Service Order for Customer’s initial order of Subscription Services, the Service Fee rates specified in that Service Order establish the pricing for those Subscription Services, and Equity shall be entitled to increase such rates and any other recurring charges (other than for Equipment) on each anniversary of the Commencement Date, provided such increase is not greater than the percentage increase in the Retail Prices Index during the previous 12 months. Equity may increase Service Fee rates during any Renewal Term, but by no more than five percent (5%) above the rates in effect at the end of the preceding Term, provided that Equity may increase such Service Fees during any Renewal Term by more than five percent (5%) in the event that (a) Equity provides Customer notice of such increase at least sixty (60) days prior to the commencement of that Renewal Term or (b) Customer materially reduces its quantity of Subscription Services.  If Customer is on Month-to-Month Service (pursuant to an election under Section 4.2 (Renewal), then Equity may increase the Service Fees at any time, up to the then-applicable list prices.  Except as provided in this Clause 3.7 (Service Fee Rates; Pricing Changes), the rates and pricing for Services and Equipment ordered in a Service Order shall not constitute a commitment of Equity to offer such rates and pricing for future orders.

    • REFUNDS AND REACTIVATION FEES.

    All prepaid fees and other payments by Customer under these Terms are non-refundable and non-creditable.  Equity may charge Customer a reasonable fee (not to exceed two times (2X) the monthly Service Fees for the reactivated Services) in order to reactivate Customer’s account following Customer’s termination of Services or Equity’s termination or suspension of Services due to Customer’s breach.

     

    4. TERM AND RENEWAL.

    • INITIAL TERM.

    The Customer Agreement shall commence on the Effective Date, and shall remain in effect until the expiry of the Initial Term, subject to automatic renewal or continuation under and shall remain in effect through the last day of the Initial Term, subject to automatic renewal or continuation under Clause 4.2 (Renewal), and earlier termination pursuant to Clause 5.1 (Termination).

    • At the end of the Initial Term and each Renewal Term (as defined below), the Customer Agreement (including all Service Orders then in effect) shall be renewed automatically and continue in effect for an additional term (each, a “Renewal Term”) of twelve (12) months, unless (a) either party provides written notice of its election not to renew the Customer Agreement or any of the Services thereunder (in which case the Customer Agreement or the Services specified for non-renewal, as applicable, shall expire at the end of the then-current Term) or (b) Customer provides written notice of its election to continue the Services on a month-to-month basis (i.e. for automatically renewing, successive, one-month Renewal Terms) at the list price for such Services (“Month-to-Month Service”), with notice in each case provided at least thirty (30) days prior to the end of the then-current Term.  Service Fee rates are subject to increase after the Initial Term as provided in Clause 3.7 (Service Fee Rates; Pricing Changes).

    5. TERMINATION AND SUSPENSION.

    Except as otherwise provided in the Customer Agreement or prohibited by law, a party may terminate the Customer Agreement or any or all Services thereunder by providing written notice to the other party as provided at Clause 4.2, or in the following circumstances:

    • Month-To-Month Service. If Customer is on Month-to-Month Service (pursuant to an election under Section 4.2 (Renewal)), then either party may terminate the Customer Agreement or any Services thereunder at any time on the provision of written notice.  The termination shall be effective on the last day of the calendar month following the month in which the notice was provided, or such later date as may be specified in the  
    • Material Breach. Either party may immediately terminate the Customer Agreement and all Services thereunder on written notice in the event of a material breach of the Customer Agreement by the other party, provided such breach (if capable of cure) is not cured by the other party within thirty (30) days of receiving written notice from the non-breaching party, requesting such breach to be cured.  For avoidance of doubt, (a) the circumstances giving rise to Customer’s right to terminate the Customer Agreement for chronic problems under the Service Level Agreement (as defined below) shall be considered a material breach of the Customer Agreement by Equity for purposes of this Clause 5.1.2 (Material Breach) and (b) Customer’s failure to make timely payment (subject to Clause 3.5 above) of any amount due under the Customer Agreement and Customer’s breach of any representation, warranty or covenant under Clause2 (Compliance with Law and Other Requirements) shall each be considered a material breach of the Customer Agreement by Customer.
    • For Bankruptcy, etc. Either party may immediately terminate the Customer Agreement if the other party has a receiver or administrative receiver appointed or passes a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or if a court of competent jurisdiction makes an order to that effect, or if the other becomes subject to an administration order or enters into any composition or voluntary arrangement with its creditors, or has a receiver or manager or provisional liquidator or administrator appointed over the whole or a substantial part of its business or undertaking, or circumstances arise which would enable a court of competent jurisdiction or a creditor to appoint the same, or if the other ceases or threatens to cease to carry on business.
    • Compliance with Law. Equity may terminate Services provided to a Customer if Equity determines, in good faith, such termination is necessary to comply with a court order or other Law applicable to Services at that Customer Location, provided Equity shall refund any unused prepaid Service Fees in respect of the terminated
    • For Convenience. Customer may terminate the Customer Agreement or any Services thereunder, for any reason or for no reason, at any time during the Initial Term or a Renewal Term by giving thirty (30) days’ written notice, provided Customer shall be liable for any early termination charges under Clause2 (Early Termination and Related Charges) below.
    • EARLY TERMINATION AND RELATED CHARGES.
      • All payment obligations under the Customer Agreement are non-cancellable, and quantities ordered cannot be decreased during the relevant Term, except as expressly provided in this Clause 5 (Termination) or elsewhere in the Customer Agreement.
      • Early Termination Charges. If the Customer Agreement and/or any of the Services ordered thereunder are cancelled or terminated by Customer for convenience, or by Equity due to Customer’s breach, before the end of the then-current Term, Customer shall pay Equity immediately upon termination an early termination charge equal to the monthly recurring charges associated with the terminated Service(s) (including Service Fees and applicable Taxes, but excluding any Regulatory Fees, if applicable) with a 5% discount, multiplied by the number of months then remaining in the terminated Term.  Any reduction in the number of lines, seats or other units of Service or downgrading of Services (for example, to a Service Plan with a reduced monthly Service Fee base rate) shall be treated as a termination of Service for purposes of this paragraph, unless otherwise agreed in the Customer Agreement (such as bursting rights), and the early termination charge shall be calculated based on the reduction in monthly recurring charges attributable to such reduction or downgrading.  CUSTOMER ACKNOWLEDGES THAT THE SERVICE FEE RATES OFFERED TO CUSTOMER ARE BASED UPON CUSTOMER’S AGREEMENT TO PAY EARLY TERMINATION CHARGES HEREUNDER AND WOULD HAVE BEEN SUBSTANTIALLY HIGHER ABSENT SUCH AGREEMENT.
    • SUSPENSION OF SERVICS

    Without limiting Equity’s rights or remedies under the Customer Agreement, Equity may suspend some or all Services if Equity determines, in its reasonable judgement, that the Services are being used (a) in a fraudulent or illegal manner, (b) in breach of the Customer Agreement or (c) in a manner that is likely to (i) disrupt or compromise the integrity or security of Equity, the network of Equity or any Equity Partner, or the privacy of any Equity customers or (ii) cause imminent and material damage to Equity or any Equity Partner, but only for as long as reasonably necessary to mitigate the risk of such harm.  Equity shall notify Customer in advance of such suspension, if practicable, and otherwise promptly thereafter.  Suspension of Services shall not release Customer from its obligations under the Customer Agreement; provided, Customer shall receive credit for the full suspension period if Customer is determined not to have breached the Customer Agreement. 

     

     

     6. EQUIPMENT AND SHIPPING.

    • GENERAL; SHIPPING.

    Customer may order Equipment from Equity from time to time for use with the Services by entering into Service Orders with Equity.  Customer shall pay all shipping and related charges for Equipment.  All Equipment shipments are F.C.A. (free carrier), and title and risk of loss or damage shall pass to Customer upon delivery to the carrier.  Customer shall be deemed the importer of Equipment for all purposes, and shall be liable for any applicable customs, import/export duties, clearance charges and other Taxes (including VAT), in connection with international shipments. 

    • WARRANTY AND RETURNS.

    Equity shall pass through to Customer a twelve (12) month warranty on Equipment (or, if applicable any extended warranty procured by Equity), if permitted by the manufacturer. Equity will replace defective Equipment covered by warranty at no charge and will pay the return shipping costs, provided Customer returns the Equipment in its original packaging or equivalent and ensures that any warranty returns are correctly recorded with Equity, by obtaining a service ticket reference number prior to returning Equipment.

    • LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT.

    During the term of the Customer Agreement, Customer shall not modify the Equipment in any manner without the express written consent of Equity and shall only use the Equipment in connection with the Services.  Customer shall be responsible for all lost, stolen or broken equipment (except to the extent covered by warranty) and shall promptly notify Equity of any such loss or theft and cooperate with Equity as reasonably requested to prevent unauthorised use of lost or stolen Equipment.

    • UNSUPPORTED DEVICES, ETC.

    Customer shall be responsible for ensuring that any equipment acquired from a third-party vendor is in reasonable working condition and configured in accordance with Equity’s technical requirements.  Customer shall not access or use the Services with any equipment or devices other than supported Equipment, without Equity’s consent.  Equity shall have no liability whatsoever for Customer’s access or use of the Services with any equipment or device that is not supported by Equity (an “Unsupported Device”), even if Equity has consented to Customer’s use of such device.

     

    7. CONFIDENTIALITY.

    • DEFFINITION

    Either party may, directly or through its Affiliate, Partner, or advisor, or any Representative of any of the foregoing, disclose or otherwise make available to the other party or its Representatives (collectively, the “Recipient”) trade secrets and/or pricing, product, business, or technical information (but excluding Customer Data which is addressed in Clause 8 Data Protection and Security) of or concerning the disclosing party (the “Discloser”) or its Affiliates or Partners which the Discloser indicates is confidential or proprietary, or which, by its nature, would reasonably be expected to be confidential or proprietary (“Confidential Information”).  For avoidance of doubt, the pricing and other terms of the Customer Agreement shall be deemed the Confidential Information of each party.  Notwithstanding the foregoing, Confidential Information shall not include any information that the Recipient can demonstrate: (a) is already or later becomes disclosed to the general public other than through the fault or negligence of Recipient or (b) is lawfully obtained by Recipient from a third party which has the right to transfer or disclose it, (c) is already known to Recipient at the date of receipt of the information pursuant to the Customer Agreement, provided such prior knowledge can be substantiated by appropriate evidence or (d) is independently developed by Recipient without the use of any Confidential Information, provided such independent development can be substantiated by documentary evidence.

    • CONFIDENTIALITY OBLIGATIONS.

    The Recipient agrees:  (a) to keep the Discloser’s Confidential Information confidential and disclose it only (i) to its Representatives, Affiliates, Partners and advisors to whom such disclosure is reasonably necessary to accomplish the purpose for which the Confidential Information was disclosed to the Recipient and who are bound to reasonable confidentiality obligations with respect to such Confidential Information, (ii) in response to a judicial order or other lawful process, as and to the extent required by such order or process or (iii) as approved in writing by the Discloser; (b) not to use Discloser’s Confidential Information except for the purpose(s) for which the Confidential Information was disclosed or as approved in writing by the Discloser; and (c) to protect the confidentiality of the Discloser’s Confidential Information with the same degree of care as Recipient uses to protect its own Confidential Information of like kind, but in no event less than reasonable care.  Each party shall use reasonable efforts to ensure that its Representatives observe these obligations as if they were parties to the Customer Agreement.

    • EQUITABLE RELIEF.

    Each party acknowledges that its breach of Clause 7.2 (Confidentiality Obligations) may result in immediate and irreparable harm to Discloser, for which there may be no adequate remedy at law, and Discloser shall be entitled to equitable relief to compel Recipient to cease and desist all unauthorised use and disclosure of Discloser’s Confidential Information in addition to monetary damages and such other relief as the courts may determine is appropriate.

    • SURVIVAL

    Each party’s obligations under this Clause 7 (Confidentiality) shall survive any termination or expiration of the Customer Agreement and remain in effect for three (3) years thereafter or, in the case of trade secrets, as long as permitted by applicable Law.  The parties agree that this Clause 7 (Confidentiality) replaces and supersedes any non-disclosure or confidentiality agreement (an “NDA”) previously entered into by the parties, and this Section 7 (Confidentiality) shall govern as to disclosures from and after the effective date of the Customer Agreement.

     

    8. DATA PROTECTION AND SECURITY.

    • PRIVACY

    Customer acknowledges that it has read and understood Equity’s Privacy Policy Covering Customers (the “Privacy Policy”).

    • GENERAL

    Equity shall maintain commercially reasonable administrative, physical and technical safeguards designed to protect the confidentiality and integrity of Customer Data.  To the extent any Customer Data includes Personal Data, Equity shall comply with any applicable data protection Laws and any other specific data protection legislation.

    • PERSONAL DATA.

    When processing Personal Data under or in connection with this Agreement, Equity will do so:

    • for the purposes and in the manner as described in Equity’s Privacy Policy; and
    • in accordance with applicable Data Protection Legislation, the terms of the Customer Agreement and with Equity’s Privacy Policy. To the extent there is any inconsistency between the Privacy Policy and the terms of the Customer Agreement, including the terms of this Section, the terms of the Customer Agreement shall take precedence over such inconsistency.

    8.3.1.    Processing Customer Personal Data. If, in providing the Services, Equity is required to process Customer Personal Data on Your behalf (whereby You will be the data controller and Equity shall be the data processor), then:

    • Equity shall only process the Customer Personal Data upon Your lawful instructions, including any documented instructions, which are reasonably given from time to time, and Equity will not use the Customer Personal Data for any other purpose other than to provide the Services.
    • You hereby:
      1. Instruct Equity to take such steps in the processing of Customer Personal Data as are reasonably necessary for the provision of the Services; and
      2. Authorise Equity to provide to any sub-processors instructions that are equivalent to the instructions set out in Sub-Section 8.3.1.(ii)a;
    • Equity shall take appropriate technical and organisational measures against unlawful and unauthorised processing of the Customer Personal Data and against accidental loss, destruction of and damage to the Customer Personal Data, alteration or disclosure of the Customer Personal Data to any third party;
    • Equity shall take reasonable steps to ensure the reliability of all of its personnel (whether employees or contractors) that may have access to the Customer Personal Data and to ensure that they are adequately trained in the good handling of Customer Personal Data and that they are bound by express confidentiality undertakings.

    8.3.2.      Affiliates or other Third-party access. In its capacity as Data Processor, You agree and authorise Equity to engage the services of Affiliates or other third-party service providers as sub-processors for parts of its processing of Customer Personal Data, provided however that such sub-processors assume, by contract, confidentiality and data protection obligations that are no less onerous than the confidentiality and data protection obligations that are imposed on Equity as a data processor, and Equity shall ensure that such sub-processors comply with those obligations.

    8.3.3.        Support Data. You agree that Equity and its third-party service providers that Equity utilise to assist in providing the Services to Customer, including its Affiliates and their appointed third-party sub-processors, have the right to access Your account and to use, modify, reproduce, distribute, display and disclose Customer Data, including any Customer Personal Data, to the extent necessary to assist in providing the Services; such as, without limitation, in response to Customer support requests. Any third-party service providers Equity utilise will only be given access to Customer’s account and Customer Data as is reasonably necessary, in Equity’s discretion, to provide the Service.

    8.3.4.      Data Subject Information Requests. Equity shall promptly notify You if we receive a request from a data subject exercising any right it may have under applicable Data Protection Legislation to obtain access to its Personal Data or to file a complaint or request relating to Customer’s obligations under applicable Data Protection Legislation; or any other communication relating directly to the processing of any Customer Personal Data in connection with the Customer Agreement. Equity will provide You with reasonable co-operation and assistance in relation to any complaint or request made in respect of any Customer Personal Data processed by Equity on Your behalf, including by providing You with details of the complaint or request, complying with any data subject access, rectification or deletion requests (within the relevant timescales set out in applicable Data Protection Legislation) and providing You with any Customer Personal Data we hold in relation to a person making a complaint or request (again, within a reasonable timescale).

    8.3.5.       Notification of Personal Data Breaches. Equity shall use commercially reasonable endeavours to notify You without undue delay after becoming aware of a Personal Data Breach affecting any Customer Personal Data that Equity processes on Your behalf. Any notifications will be in line with Equity’s obligations under applicable Data Protection Legislation.

    8.3.6.     Demonstration of Compliance. Upon Your reasonable request to assist You meeting Your obligations under the applicable Data Protection Legislation Equity shall provide You with any reasonable information to demonstrate compliance by Equity and its sub-processors with their obligations under applicable Data Protection Legislation in respect of Equity’s processing of Customer Personal Data.  Such information may include the results of any internal audits conducted by or on behalf of Equity. Equity shall also take any steps we deem reasonable, as You may reasonably request, to assist You complying with Your obligations under the relevant Data Protection Legislation.

    8.3.7.    Deletion of Customer Personal Data. Equity will delete all Customer Personal Data upon the later of:

    (i)   within a reasonable period of closure of Your account, or upon Equity’s reasonable determination that the information is no longer necessary for the purposes for which such Customer Personal Data was collected or retained, in Equity’s sole discretion; or

    (ii)  (if and to the extent Equity is required by applicable Law to retain any Customer Personal Data) upon expiration of the period during which Equity is required by applicable Law to retain Customer Personal Data. You acknowledge that Equity may archive Customer Data and Personal Data rather than delete such data while You remain a customer of Equity or an Equity Affiliate. 

    8.3.8.     Liability. You acknowledge that Equity relies on You for direction as to the extent to which we are entitled to use and process the Customer Personal Data You provide us with. Consequently, we will only be liable for any claim brought by a data subject arising from:

    • Any failure by us to comply with any obligation that applies to Equity under applicable Data Protection Legislation; or
    • Equity having acted outside or contrary to lawful instructions provided by You or the relevant regulator to Equity.

    8.3.9.         Consent. You represent to Equity that You are in compliance with all applicable Data Protection Legislation, You have obtained all necessary rights and consents under applicable Law to disclose to Equity, or allow Equity to collect, use, retain and disclose any Personal Data that You provide to Equity, or authorise Equity to collect, including information that we may collect directly from Customer end users via cookies or other means, and that Equity will not be in breach of any such Laws by collecting, receiving, using, transferring and disclosing such information in connection with the Service. As between Customer and Equity, You is solely responsible for disclosing to Your end users that Equity is processing Personal Data for You and obtaining data from such customers. It is Customer’s obligation to provide to its Agents and other end users any fair processing information that must be provided to data subjects under applicable Data Protection Legislation, including the fact that such data may be transferred, processed and stored outside of the EEA and, as set forth in Equity’s Privacy Policy, may be subject to disclosure as required by applicable Law.

    8.3.10.      You agree to notify Equity of.

    (i)       any limitations in Your privacy notice to data subjects;

    (ii)     any changes in, or revocation of, consent by a data subject to use or disclose Personal Data; and

    (iii)    any restrictions on the use of Personal Data to which You have agreed in accordance with any agreements between You and the data subjects; in each case, to the extent that such limitations, changes or restrictions may affect Equity’s uses or disclosures of Customer Personal Data. 

    8.3.11.      Acquired Personal Data. If You receive Personal Data through the use of the Service, You must keep such information confidential and only use it in connection with the Service. You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless You receive the express consent of the user to do so. You may not disclose any acquired Personal Data to any third party, other than in connection with processing of transactions or the provision of Services requested by end users of the Service.

    • Limited License. Customer grants Equity a non-exclusive and non-transferable (except as provided herein) license and right to access Customer’s account(s) and to collect, process, transfer, use, modify, reproduce, store, record, transmit, distribute, display, view, print, translate and disclose Customer Personal Data (which may include Personal Data of Agents, other users of the Services and other third parties), subject to the limitations and conditions set forth in the Privacy Policy and solely for the purposes set forth
    • Permitted Uses. Without limiting Clause3.1 (Limited License) above, Customer acknowledges and agrees that Equity may, subject to the terms and conditions of the Privacy Policy: (a) disclose and transfer Customer Data to an Equity Affiliate or other Equity Partner as and to the extent necessary to provide Services to Customer; (b) disclose Customer Data to courts, government agencies and other third parties as and to the extent required by Law, including in response to court orders and other legal process; (c) collect and aggregate Customer Data with data from other customers, and use and disclose Customer Data in anonymized form, including for the purpose of (i) compliance with reporting requirements under applicable Laws, (ii) quality control and assurance or (iii) improving the Services and developing new services; and (d) collect, use and disclose Customer Data to third parties when Equity determines, in its reasonable judgement, that such disclosure is necessary to protect the safety of an Agent or another individual, to investigate suspected fraud or to trace debtors.
    • DATA STORAGE

    Equity shall not be responsible for any Customer Data exported from the Services, including without limitation via third-party integrations, or storage on devices or external media or accounts.  Equity reserves the right to periodically purge Customer Data from its servers, subject to any data retention requirements under applicable Laws or the Customer Agreement.

    • INTERNET

    Customer acknowledges that its use of the Services requires the transmission of electronic data over the Internet and various other networks that are not owned or operated by, or otherwise under the control of, Equity, and that Equity cannot ensure that such transmissions will not be accessed by unauthorised parties.  Except as expressly provided in the Customer Agreement, Equity shall not be not responsible or liable for any delay, loss, alteration or interception of Customer Data in the course of its transmission through and between networks not owned and/or operated by Equity.

     

    9. SERVICE LIMITATIONS.

    • AVAILABILITY

    Customer acknowledges and agrees that the Services will not be uninterrupted, error-free or available 100% of the time.  The Service Level Agreement attached as Schedule II (Service Level Agreement) to (or otherwise attached to or made a part of) the Service Agreement (the “SLA”) specifies the expected levels of availability for the Services and certain remedies made available to Customer in the event that the Services do not meet the SLA criteria.  For avoidance of doubt, the service credit and termination remedies expressly provided in the SLA.

    • NON-EQUITY
      • Continued Interoperability. Certain Services may contain features designed to interoperate with Non-Equity Applications.  Equity cannot guarantee the continued availability of such Services features and may cease providing them without entitling Customer to any refund, credit or other compensation.  Any custom work performed by Equity to enable interoperation with a Non-Equity Application shall be charged as Professional Services and undertaken on a commercially reasonable endeavours basis, except to the extent otherwise expressly provided in an applicable SoW.
      • No Warranty or Liability. Unless the Customer Agreement provides otherwise: (a) Equity does not warrant and is not responsible for any aspect of Non-Equity Applications, regardless of whether they are designated by Equity as “certified,” “approved” or “recommended”; (b) Customer’s procurement and use of Non-Equity Applications is solely between Customer and the applicable third-party provider; and (c) Equity shall not be required to provide support for Non-Equity Applications.  If Customer installs or enables Non-Equity Applications or services for use with certain Subscription Services, Customer agrees that Equity may allow the third-party providers to access Customer Data as required for the interoperation of such Non-Equity Applications with the Subscription Services, and Equity shall not be responsible for any disclosure, modification or deletion of Customer Data resulting therefrom.
    • Customisations

     Equity may agree or refuse, in its sole discretion, any Customer requests for custom modifications or additions to the Services or other aspects of the Equity Platform (“Customisations”) for Customer’s benefit.  Any Customisation work performed by Equity shall be charged as Professional Services and shall be undertaken on a reasonable efforts basis.  Customer acknowledges that (a) Equity does not provide support for Customisations under standard Support Plans; (b) a Customisation may adversely impact other aspects of the Services, or their overall functionality or security.

    • BETA

    From time to time, Equity may make available, to some or all of its customers, new or modified Services, or features or functionalities of existing Services, which are designated as beta, pilot, limited release, developer preview, non- production, evaluation or by a similar description (“Beta Services”), prior to their general release. Beta Services are intended for evaluation purposes only and not for production use, are not supported by Equity, and may be subject to additional terms.  Beta Services are not considered “Services” under the Customer Agreement for purposes of any representations, warranties, commitments or agreements of Equity; however, all restrictions and limitations applicable to Customer’s use of Services shall apply to Beta Services.  Equity may discontinue Beta Services at any time in its sole discretion and may never make them generally available.  Equity will have no liability for any harm or damage arising out Customer’s use of a Beta Service.

     

    10. USE RESTRICTIONS AND CUSTOMER RESPONSIBILITIES.

    • CUSTOMER ACCOUNTABILITY FOR USE OF SERVICES

    Customer shall be responsible and liable for all access and use of the Services, Equipment by Customer’s Agents or other users of the Services through its account(s), or otherwise through Customer’s account, other than unauthorised activities and charges resulting from the gross negligence or willful misconduct of the Customer Agreement by Equity or an Equity Partner (“Customer Use”), and Customer agrees to cause such Agents and other users to comply with the provisions of this Clause 10 (Use Restrictions and Customer Responsibilities).  Accordingly, any Customer Use in violation of the rules, restrictions or any representations or warranties set forth in this Clause 10 (Use Restrictions and Customer Responsibilities) shall constitute a breach by Customer.  Customer understands and acknowledges that the right of its Agents to access and use the Services shall be subject to each Agent’s acceptance of Equity’s standard Service Terms of Use, as amended from time to time.

    • COMPLIANCE WITH LAW AND OTHER REQUIREMENTS.

    Without limiting any other provision of these Terms, Customer agrees, represents, warrants and covenants that:

    • Customer has obtained all third-party consents, licenses, authorizations and/or permits required in connection with its proposed use of the Services;
    • Customer has not received or been offered any bribe, kickback or illegal or improper payment, gift or thing of value from any of Equity’s or its Affiliates’ Representatives in connection with the Customer Agreement or the Services or Equipment;
    • Customer shall not treat or rely on any statements, communications or materials provided by Equity, its Affiliates or their Representatives as legal advice;
    • all Customer Use shall (i) comply with all applicable Laws and contractual obligations and (ii) be for Customer’s or its Affiliate’s own internal business use and not as agent or on behalf of any third party;
    • during the Access Period, Customer and its Agents:
    • shall promptly install all upgrades, bug fixes, patches and other corrections relating to the Services that Equity or its designee makes available from time to time;
    • shall not take any action or omission that would reasonably be expected to (y) disrupt or compromise the integrity or security of any network of any Equity Partner, or the privacy of any other Equity customer or (z) cause imminent and material damage to Equity or any Equity Partner or other customer of Equity, its Affiliates or any Equity reseller;
    • shall not use or access the Services provided by Equity, any Equity Partner or its Affiliates:
      1. for any fraudulent, criminal, defamatory, harassing or tortious purpose, or to participate in or promote any illegal activity;
      2. to breach, violate or infringe intellectual property, privacy or other rights, or misappropriate the property of, any third party;
      3. to transmit or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or similar programs or materials;
      4. to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm or wrongfully obtain anything of value;
      5. in any manner that might cause Equity or any of its Affiliates or Partners to breach any Law; or
      6. to transmit or broadcast unsolicited, or “junk” or “spam,” marketing or promotional materials or messages through email, pre-recorded voice messages, SMS, facsimile or other means, in breach of any applicable Laws;
        • neither Customer nor any of its Representatives or Agents, nor any other party acting on Customer’s behalf, shall:
    • inspect, possess, use, copy, reverse engineer or attempt to discover the source code of any program or other component of the Services or any source code used to create any such program or other component, except as expressly permitted by applicable Laws;
    • not attempt to hack or gain unauthorised access to any network, environment, or system of Equity, any Equity Partner or other Equity customer;
    • not sell, resell, license, sublicense, distribute, offer, rent or lease any Services, or otherwise make any Service available to any third party;
    • not access any Service in order to build a competitive product or for the primary purpose of monitoring its availability, performance or functionality, or for benchmarking or competitive purposes.
      • COMPLIANCE WITH SPECIFIC RELEVANT LEGAL REQUIREMENTS.

    Customer shall be solely responsible for familiarising itself with all Laws that apply to its and its Affiliates and Agents’ use and accessing of the Services.  Without limiting the Customer’s other obligations under this Clause 10 (Use Restrictions and Customer Responsibilities):

    • CUSTOMER SECURITY OBLIGATIONS.

    Customer shall, during the term of the Customer Agreement and for any subsequent period during which Customer continues to have access to the Services ordered under the Customer Agreement (the “Access Period”), implement and maintain reasonable and appropriate measures and safeguards to prevent unauthorised access to and use of Services and/or Customer Data, and Customer agrees to promptly provide notice to Equity of any such unauthorised access or use or other breach of or compromise to the security of its account(s), the Services ordered under the Customer Agreement or the Equipment used to access the foregoing.  Among other safeguards, Customer shall instruct and appropriately train its Agents to, and oversee them as necessary and appropriately to ensure that they, (a) choose robust password combinations, change their passwords regularly and not disclose their passwords except to authorised Equity Support agents and (b) perform a “log off” / exit of their accounts at the end of each session.

    • REGISTRATION INFORMATION.

    Customer shall ensure that all of its account, Agent and registration information (collectively, “Registration Information”) – including, for example, Customer’s legal name, address, email address, telephone number and payment information, and the service address and other registration information of its Agents – is accurate, current and complete at all times during the Term.  Customer agrees to promptly provide notice to Equity of any changes in Registration Information and to verify such information upon reasonable request from Equity.  Without limiting the foregoing, Customer shall be responsible for the accuracy, quality and legality of all Registration Information (including without limitation any Personal Data included therein) and the means by which Customer acquired such Personal Data.

     

    11. CHANGES TO SERVICES AND TERMS.

    • SERVICE

    Equity shall be permitted to perform upgrades and make other modifications to the Services ordered by Customer (each, a “Service Change”) from time to time, as long as such Service Changes do not materially reduce the overall functionality or security of the Services. Equity will use commercially reasonable efforts to notify Customer in advance of any such Service Change.

    • CHANGE IN

    In offering and providing the Services, Equity operates in a heavily-regulated environment, and this environment subject to frequent change.  Accordingly, Customer agrees that in the event that Equity determines in its reasonable discretion that any change to the Customer Agreement is necessary or appropriate in light of its or its Affiliates’ obligations under any Law; adherence to industry or self-regulatory frameworks, guidelines, or standards; or broader commitments to their Customers or Partners, Customer shall, upon Equity’s request, work in good faith with Equity to promptly agree upon and execute an amendment to the Service Agreement that reasonably addresses the relevant issues or developments, provided that in no event shall Customer be obligated to agree to any such change that materially reduces Customer’s rights or benefits, or materially increases Customer’s obligations or liability, under the Customer Agreement.

     

    12. INTELLECTUAL PROPERTY RIGHTS AND LICENSES.

    • INTELLECTUAL PROPERTY RIGHTS.

    To the maximum extent permitted by Law, Equity shall own all intellectual property rights in and to all software code, Service configuration designs and other work product produced or developed by Equity in the course of providing Services under the Customer Agreement to Customer (including Customisations and other deliverables under a SoW), except to the extent (a) such work product embodies Customer’s pre-existing intellectual property or (b) the parties expressly agree otherwise in a Service Agreement.  Except as otherwise provided in the Customer Agreement, Customer shall retain all rights, title, ownership and interest in its Content.

    • SOFTWARE

    Equity may from time to time make available software applications for download and use by its customers in connection with the Services (“Software”).  The Software may include open source and other software components distributed under third-party licenses that impose terms and conditions on its use (“Third-Party License Terms”).  Equity agrees to make such Third-Party License Terms available to Customer in the manner required by the Third-Party License Terms, and Customer agrees to comply with such Third-Party License Terms.  Subject to the foregoing, Equity grants Customer and its Agents a limited, non-exclusive, non-transferable license to use such Software during the term of the Customer Agreement solely in connection with Customer’s use of the Services.

    • USE OF

    Customer hereby assigns to Equity all right, title and interest (including intellectual property rights) in and to any new feature improvement, suggestion, enhancement request, recommendation, correction, idea or other feedback that Customer may provide to Equity relating to the Services or Equity’s operations (collectively, “Feedback”), and Customer agrees that Equity shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever without restriction or compensation to Customer.

     

    13. REPRESENTATIONS AND WARRANTIES.

    • EQUITY REPRESENTATIONS AND

    Equity (a) represents and warrants to Customer that Equity has the power and authority to enter into and perform its obligations under the Customer Agreement, (b) warrants that Equity shall perform Implementation Services and Professional Services in a professional and workmanlike manner and with reasonable skill and care and (c) warrants that the Services shall substantially conform to the Documentation and (d) warrants that the Services shall perform to the service levels specified in the SLA.  For avoidance of doubt, the foregoing representations and warranties do not apply to any free trial Services, Beta Services or Unsupported Services.

    • EXCLUSIVE REMEDY.

    Unless otherwise provided in the Customer Agreement, Customer’s sole and exclusive remedies for breach of Equity’s warranty in clause (c) and (d) of Clause 13.1. (Equity Representations and Warranties) are the service credit and termination for chronic problems remedies expressly provided in the SLA.

    • DISCLAIMER OF WARRANTIES.

    Except as expressly provided in Clause 13.1. (Equity representations and warranties), to the maximum extent permitted under applicable law, Equity makes no warranties, and disclaims all warranties, in relation to the services and equipment, whether expressed or implied, including, but not limited to, the implied warranties of merchantability or fitness for a particular purpose.  Without limiting the foregoing, Equity does not warrant that the Services will be uninterrupted, error-free or available one-hundred percent (100%) of the time.

    • CUSTOMER REPRESENTATIONS AND

    Without limiting any other provision of these Terms, Customer represents and warrants to Equity that (a) Customer has the power and authority to enter into and perform its obligations under the Customer Agreement, (b) Customer is not relying upon any statements, commitments, representations or warranties other than those expressly set forth in the Customer Agreement and Documentation, (c) Customer is a bona fide business and is procuring the Services and Equipment for its own internal business use only and not as an agent or on behalf of any third party or for resale or distribution, and (d) Customer’s purchases are not contingent on the delivery of any future functionality or features, except as otherwise expressly provided in the Customer Agreement.

     

    14. LIABILITY.

    • NEGLIGENCE

    Subject to Condition 14.2. Equity shall be liable for the damage to the property of Customer caused by any negligent act or omission of Equity or its employees provided that such liability of Equity in contract, tort or otherwise, including any liability for negligence, howsoever arising out of or in connection with the performance of Equity’s obligations under the Customer Agreement shall be limited to £5,000 for any one incident or £10,000 for any series or incidents arising from a common cause during the twelve (12) months preceding the first incident out of which the liability arose.

    • EXCLUSION OF CONSEQUENTIAL DAMAGES.

    Equity shall not be liable to the Customer in contract (including any liability for negligence), tort or otherwise, for any loss of revenue, business, goodwill, anticipated savings or profit or of any indirect or consequential loss however arising (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Equity had been advised of the possibility of the Customer incurring the same.

    • MAKING GOOD.

    Equity shall not be liable in any circumstances for making good Customer premises in the event of the removal of any Service related equipment.

    • NO EXCLUSION.

    Notwithstanding the foregoing, nothing in these Terms or the Customer Agreement excludes or limits either party’s liability for personal injury or death caused by negligence or for fraud (including fraudulent misrepresentation), deliberate breach or wilful abandonment.

     

    15. DISPUTES

    • GENERAL

    Before either party initiates an arbitration, court or other action, suit or proceeding (a “Proceeding”) against the other party in respect of any Covered Claim, and subject to applicable procedures, such party agrees to send a written notice describing in sufficient detail the specific issues in dispute (and referencing the specific portions of the Customer Agreement which are allegedly being breached, if applicable) and to work with the other party diligently and in good faith to attempt to resolve the dispute.  Any such notice directed to Equity shall be sent to support@equitynetworks.co.uk, or such other address as notified to the Customer by Equity from time to time.  Within 30 days of such notice, the parties shall cooperate to ensure that knowledgeable executives of each party hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute.  If the parties fail to resolve the dispute within 30 days of such notice, either party may thereafter initiate a Proceeding in accordance with these Terms (and without satisfying any further notice or cure period under the Customer Agreement). 

     

    16. MISCELLANEOUS.

    16.1.   NOTICE.

    16.1.1. To Customer.  Except as expressly stated otherwise in the Customer Agreement, any notice required or permitted to be given to Customer under the Customer Agreement shall be in writing and shall be provided by hand, first-class mail or (if relevant) airmail, to the address set forth for Customer in the Service Agreement or such other address as Customer specifies through written notice to Equity in accordance with Section 16.1.2 (To Equity), provided that Equity shall be permitted to provide routine notices to Customer by e-mail to the e-mail address specified by Customer in connection with its initial order of Services (to which such notice by e-mail Customer hereby consents).

    • To Equity. Except as expressly stated otherwise in the Customer Agreement, any notice required or permitted to be given to Equity under the Customer Agreement shall be in writing and shall be provided by e-mail in accordance with this Section 16.1 (Notice) (to which such notice by e-mail Equity hereby consents) or provided by hand, first-class mail or (if relevant) airmail to the address set forth in the Service Agreement or such other address that Equity specifies through written notice to Customer in accordance with Section 16.1.1 (To Customer) and for the attention of: Service Delivery.  Equity’s e-mail address for notice shall be: (a) account@equitynetworks.co.uk for notice of billing disputes under Clause 3.5 (Disputed Amounts), and (b) support@equitynetworks.co.uk for notice of breach under Clause 5.1 (Termination) and notice of Claims under Section 15 (Disputes) and for all other notices to Equity under these Terms.
    • Effectiveness and Receipt of Notices. Notice shall be deemed effective (a) upon personal delivery, (b) on the second business day after it is sent by regular mail, (c) on the seventh business day if sent by airmail, or (d) on the day it is sent by e-mail, if delivered on a business day before 5.30pm United Kingdom time, and otherwise on the next business day. For the purposes of this clause, “business day” shall mean any day other than a Saturday, Sunday or an English public holiday.   
    • GOVERNING LAW & JURISDICTION.

    These Terms and the Customer Agreement shall be governed by and construed in accordance with English law and the English courts have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Customer Agreement or its subject matter or formation (including non-contractual disputes or claims).

    • SURVIVAL

    Sections 5 (Termination and Suspension), 7 (Confidentiality), 14 (Limitation of Liability), 15 (Disputes) and 16 (Miscellaneous) shall survive the expiration or termination of the Customer Agreement, along with applicable provisions governing payment obligations and any other provision that by its nature would reasonably be expected to survive.

    • FORCE MAJEURE (EVENTS BEYOND A PARTY’S CONTROL).

    Except as otherwise expressly provided in the Customer Agreement, neither party shall be considered in breach of the Customer Agreement as the result of, or shall have any liability under the Customer Agreement for, any failure or delay in the performance of such party’s obligations under the Customer Agreement that is caused by or results from events beyond such party’s reasonable control, including, for example, acts of God (including fire, flood, hurricane, earthquake and tsunami), riot, war, terrorism, government actions and intervention, embargoes, strikes, destruction of facilities, late or failed delivery by suppliers, unavailability of power or Internet services, or network or carrier issues; provided, the foregoing shall not apply to either party’s payment obligations under the Customer Agreement.

    • ENTIRE AGREEMENT.

    These Terms (including all materials incorporated by reference herein) and the other documents comprising the Customer Agreement, together with any Documentation that apply to Customer’s Service Plan, constitute the entire agreement between the parties with respect to the Services and Equipment and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services.

      • Order of Precedence. In the event of any conflict or inconsistency between these Terms and the terms of a Service Agreement, the terms of the Service Agreement shall govern, except as otherwise expressly provided in these Terms.  In the event of any conflict between these Terms and the terms of a Service Order, these Terms shall govern, except as otherwise expressly provided in these Terms or the Service Agreement. 
      • Objection to Customer Terms and Changes. Unless the Service Agreement expressly provides otherwise, in no event may these Terms be modified, amended or superseded by the terms of any purchase order or similar document delivered by Customer to Equity in connection with its order or use of Services, and in no event may any Service Order be modified or amended by changes made by Customer or its Affiliates or Representatives to the substance of such Service Order, which such changes shall be deemed void and ineffective.  Equity HEREBY OBJECTS TO ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS AND CONDITIONS ON ANY PURCHASE ORDER OR SIMILAR DOCUMENT ISSUED BY CUSTOMER AT ANY TIME.
    • WAIVER

    The failure of either party to exercise or enforce any right or remedy under the Customer Agreement shall not constitute a waiver of such right or remedy, except as expressly provided herein.  Except as provided in Clause 3.5 (Disputed Amounts) and 10 (Changes to Services and Terms), no waiver or amendment to any provision of the Customer Agreement shall be enforceable against a party unless it is in writing and otherwise conforms to the requirements of these Terms.

    • SEVERABILITY

    If any provision of the Customer Agreement is deemed illegal, invalid or unenforceable in whole or in part under applicable Law, the Customer Agreement shall be deemed amended as and to the extent necessary to render its terms valid, enforceable under applicable Law and, insofar as possible, consistent with the original intent of the parties.

    • ASSIGNMENT; BINDING EFFECT

    The Customer Agreement shall be binding upon the heirs, successors, and permitted assigns of Equity and Customer.  Neither party shall assign the Customer Agreement or delegate its obligations thereunder without the other party’s prior written consent, except that no such consent shall be required for (a) a party’s assignment of all of its rights and delegation of all of its obligations and/or duties under the Customer Agreement in connection with a bona fide sale of the assigning party or substantially all of its assets to a third party, provided that the assigning party must provide to the other party at least ten (10) days’ prior notice of such an assignment and such information and documentation concerning the party to which the foregoing is assigned as the other party may reasonably request or (b) Equity to assign its rights and/or transfer its obligations under the Customer Agreement, in part or in full, to one or more of its Affiliates upon notice to Customer.

    • AFFILIATES

    If Equity permits an Affiliate of Customer to order Services under the Customer Agreement, references to “Customer” in these Terms shall be deemed to include such Customer Affiliate.  Customer shall be jointly liable for the actions and omissions of such Affiliate under the Customer Agreement.

    • NO THIRD-PARTY BENEFICIARIES

    Except as expressly stated herein, these Terms are intended for the sole benefit of, and shall only be enforceable by, each party and its permitted assigns.  Without limiting the foregoing, Equity shall have no obligation or liability under the Customer Agreement to any Agent or other end user of the Services that is not a direct customer of Equity.

    • DOCUMENT ACCEPTANCE AND SIGNATURE

    A Service Order, SoW or similar document setting forth a Service proposal that has been prepared by Equity and sent to Customer for acceptance shall be deemed accepted, and shall become effective and legally binding on both parties, when an authorised representative of Customer (or an individual that Equity reasonably believes to be such) manifests its assent in the manner indicated by the document (for example, by signature or “click to accept”).  Notwithstanding the foregoing, a quotation or Service Order attached as an Appendix (or as an exhibit or similar document) to a Service Agreement shall become effective as a Service Order when the parties enter into the Service Agreement, without further Customer acceptance.  Use of DocuSign, or any other widely-used method of verifiable electronic signature and delivery, shall be a valid method for signature and delivery of all documents under the Customer Agreement.

    • INTERPRETATION

    The headings in the Customer Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of the Customer Agreement.  The word “include” and its variants shall be interpreted as if followed by the words “without limitation.”  The word “person” shall mean an individual or a corporation, company, partnership, organisation, association or other legal entity.  References to an Equity web address (URL) shall be deemed to include (a) any subpages that are accessible through one or a series of clearly-labelled hyperlinks and (b) such successor sites as may be designated by Equity.

     

    1. DEFINED TERMS.

    The following capitalised terms, when used within these Terms, shall have the meanings assigned to them below.

    “Affiliate”

    with respect to a person, any entity that directly or indirectly controls, is controlled by, or is under common control with such person.

    “Agent”

    an individual authorised to use a Service through Customer’s account (as an agent, administrator or otherwise), as identified through a unique login.

    “Covered Claim”

    any Claim that either party may intend to assert against the other party, its Affiliates or any of their respective Representatives, other than those (a) seeking an injunction to prevent the disclosure or use of its Confidential Information, or a provisional remedy related to intellectual property infringement or misappropriation Claims, (b) regarding Personal Data that are governed by procedures specified in the Privacy Policy, (c) by Equity relating to Customer’s non-payment of fees, Taxes, and related amounts and (d) that the other party is required to defend under Clause 14 (Indemnification).

    “Customer Data”

    any of the following data and information provided by Customer, or collected or obtained in connection with, Customer’s acquisition or use of Services: (a) Content; (b) Registration Information; (c) information stored in customer relationship management (CRM), support, billing and similar records and databases used by Equity or its Affiliates or subcontractors; (d) call detail and similar records; or (e) other data concerning Customer’s usage of the Services.

    “Customer Location”

    a location for which Customer has ordered Services, as identified by a physical address specified in the Customer Agreement.

     

    “Data Protection Legislation”

    means any Law relating to the processing, privacy, and use of Personal Data, as applicable to the Customer, Equity and/or the Services, including:

    (a) in member states of the European Union: EU Directive 95/46/EC (Data Protection Directive) or, once applicable, the EU General Data Protection Regulation (EU) 2016/679 (GDPR), and the EU Directive 2002/58/EC (ePrivacy Directive), and all relevant member state

    (b) any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant supervisory authority; in each case, as in force and applicable, and as may be amended, supplemented or replaced from time to time.

    “Documentation”

    user manuals and technical documentation relating to the Services or Equipment, which Equity makes available to its customers from time to time (whether by sending in electronic form or otherwise), but in all cases excluding marketing and promotional materials.

    “Equipment”

    equipment or hardware which Customer acquires from Equity, an Equity Affiliate, an Equity authorized vendor, for use in connection with the Services.

    “Implementation Services”

    work performed and other services provided by Equity in the implementation of a Service (such as account creation, provisioning and deployment).

    “Law”

    any law of England and Wales including any and all regulations, codes, ordinances, treaties, conventions, writs, decrees, resolutions, promulgations or court or administrative orders or rulings.

    “Non-Equity Applications”

    online Web-based applications or services and offline software products that interoperate with certain Services, but are not sold or provided by Equity.

    “Personal Data”

    any information relating to an identified or identifiable natural person (the “data subject”), where an identifiable person is one who can be identified, directly or indirectly, in particular, by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.

    “Personal Data Breach”

    means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data.

    “Customer Personal Data”

    means the proportion of Personal Data of which only You are the data controller and which Equity processes on Your behalf as a data processor when providing the Services to You under or in connection with the Customer Agreement.

    “Professional Services”

    work performed for Customer by Equity or an Affiliate or subcontractor of Equity that is outside the scope of a Service Plan or Support Plan ordered by Customer.

    “Representative”

    (of a party) a workforce member or agent of the party.

    “Retail Price Index”

    the All Items Retail Price Index as published by the Central Statistical Office for HM Treasury from time to time

    “Service Agreement”

    the Service Agreement to which these Terms are attached as a schedule (or as an exhibit or similar document).

    “Service Fee”

    the base recurring fee that Equity charges Customer for access to and use of a Service (exclusive of Taxes, usage charges and Regulatory Fees).

    “Service Order” or “Order Form”

    a written order for Services agreed upon between Equity and Customer, including without limitation any quote or order that the parties enter into in connection with their execution of the Service Agreement or an amendment thereto.

    “Service Plan”

    the packaged service plan, including the functionality, services and billing terms associated therewith (as set forth in a Service Order), applicable to the Services ordered by Customer.

    “Services”

    products and services provided by Equity to customers, including (for example) Subscription Services, Implementation Services, Support Services, Professional Services and training, but excluding Third-Party Services and Equipment.

    “Subscription Service”

    any Equity communications cloud service that is hosted by or on behalf of Equity and accessed by customers over Internet Protocol (IP) networks.

    “Support Plan”

    as applicable, (a) the Support Services and/or Implementation Services associated the Service Plan ordered by Customer or (b) the Support Services and/or Implementation Services plan ordered by Customer as a separately packaged item, including the billing terms associated therewith (as set forth in an SoW).  All Support Plans include, at a minimum, the Support Services and Implementation Services contemplated by these Terms.

    “Support Services”

    the technical support services that Equity agrees to provide to Customer as set forth in these Terms and the applicable Support Plan.

     “Term”

    the Initial Term or a Renewal Term, as applicable.