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West Cloud Service Terms and Conditions

Magnetic North now West

BY SIGNING AND SENDING BACK THE CLOUD SOLUTION QUOTATION FORM, CLICKING THE “I ACCEPT” BUTTON, OR BY USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THE AGREEMENT

1.0 Definitions

“Agreement” means in relation to a particular Service these Terms and Conditions, the relevant Special Terms, the relevant Service Level Agreement and the relevant Cloud Solution Quotation Form;

“Cancellation Charges” the charges calculated as set out in clause 11.9;

“Charges” means any of Our charges (including Cancellation Charges, Usage Charges, Flexing Charges, Set Up Fees and Rental) for the Services (including telephone lines, data circuits, leased lines and other telephone numbers or fees for Purchased Equipment or other Services as set out in the Cloud Solution Quotation Form or as agreed by Us);

“Cloud Solution Quotation Form” Our standard cloud solution quotation form completed by You and accepted by Us before we provide the Service;

“Confidential Information” shall mean information that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and marked as Confidential ("Confidential Information"). Confidentiality obligations shall not apply to any information (i) independently developed by a party, (ii) generally available to the public other than by a party's breach of this Agreement, (iii) already known by a party at time of disclosure to that party, or (iv) rightfully received from a third party without restriction on disclosure or an obligation of confidentiality running directly or indirectly to the other party;

“Customer Equipment” the hardware and software which You provide and use to enable the Services and Software to be provided;

“Customer Information” data input, created or used by You in using the Software and Services;

“Direct Debit” the process of collection of invoices using the Bank Automated Clearing Service Direct Debit system from UK Bank accounts, via ACH in the United States, or otherwise by American Express, Visa or MasterCard credit card for other countries;

“Downtime” an outage causing interruption or failure in the provision of the Services;

“Equipment” equipment other than any Purchased Equipment that We provide to You from time to time in connection with the provision of the Services;

“First Tier Representative” the person nominated by You or Us (as the case may be) for the purpose of clause 24;

“Fixed Charges” are the Set Up Fees and monthly rentals set out in the Cloud Solution Quotation Form;

“Flexing Charges” the flexing charges (being double the Rental tariffs payable by You for any Licence Flexing) which happens at any time during the term of the Agreement;

“Group” a group undertaking as defined in Companies Act 2006;

“Intellectual Property Rights” all copyrights, patents, registered and unregistered design rights, trademarks and service marks and applications for any of these, together with all database rights, trade secrets, know-how and other intellectual property rights in all parts of the world and for the full term including all rights of renewal;

“Law” any relevant law, statute or regulation, guideline or code of conduct (whether or not having the force of law) in any jurisdiction to which a Party is from time to time subject;

“Licence Flex(ing)” as described in clause 2.11;

“Minimum Period” is the minimum term stated on the Cloud Solution Quotation Form;

“Network” a network comprising all or any of the following: modems, routers, leased line circuits, MPLS networks, DSL and Private DSL Circuits, ISDN lines, Analogue PSTN lines and other telecommunications hardware and software;

“Party” You or Us, and Parties means You and Us;

“Password” a password, code, PIN number, user ID, account number, smart card or other security device which either We issue to You, or which is issued to You on Our behalf;

“Purchased Equipment” means any equipment You purchase from Us in connection with the provision of the Service;

“Rental” the rental payment for the relevant Service specified in the Cloud Solution Quotation Form or as we agree in writing (and in either case whether referred to as a ‘Rental’ payment or otherwise);

“Second Tier Representative” the individual nominated by You or Us (as the case may be) for the purpose of clause 24;

“Service(s)” the software and other service(s) to be provided by Us under this Agreement as described in the Cloud Solution Quotation Form;

“Service Commencement Date” is the date We advise You that the Service is ‘Ready for Service’ as set out in clause 5.8;

“Service Credits” reductions in certain Charges in respect of any failure by Us to meet specified Service Levels as calculated in the Service Level Agreement;

“Service Levels” the levels of performance to which the Services are to be provided to You by Us as described in the Service Level Agreement;

“Service Level Agreement” Our service level agreement, posted at https://westuc.com/terms-conditions-policies as amended from time to time by Us;

“Set Up Fees” those fees set out on the Cloud Solution Quotation Form (being non-refundable) that are due and payable prior to (or upon) the Service Commencement Date being the fees necessary to initially set up and configure the Services for Your use.

“Site” the site from, to or in respect of, which a Service is provided;

“Software” any software for which the Services are to be provided, including software which terms are set out in the Software Licence;

“Software Licences” the end user licence agreements at https://westuc.com/terms-conditions-policies ;

“Survey” means any survey or other investigation We deem necessary;

“System” the Software, the Services, and the Network as they operate together in the provision of the Services;

“Technical Environment” the Network together with the Customer Equipment, any Purchased Equipment and any related Equipment and connections;

“Terms and Conditions” these terms and conditions as varied from time to time in accordance with the Agreement;

“Usage Charges” Our charges for the use of the Service which vary dependent on the duration of connection time or the volume of traffic or number of transactions as set out in the Cloud Solution Quotation Form or as otherwise agreed in writing or published on the Web Site in our retail rates section and which shall include Login Charges, Call Recording Charges, Call Storage Charges, Multimedia Handling Charges, SMS Charges, Mobile Screening Charges and other such transactional usage services that You may use from time to time;

“User” means any person designated by You who uses or accesses the Services, under Your responsibility, irrespective of whether such person has a relationship with You.

“We/Us/Our” West Cloud Contact Solutions Limited, registered company number 3637644, whose registered office is at : Unit 1 & 2, Sawmills End, Barnwood, Gloucester, GL4 3DL, UK;

“Website” Our website at (i) www.westuc.com ; or (ii) such other address as we notify to You from time to time, including in each case any website or webpage referred to or accessed via a link from such website;

“You/Your” the person who enters into the Agreement as detailed on the Cloud Solution Quotation Form.

1.2 Headings are for reference only and shall not be taken into account in interpreting these Terms and Conditions.

1.3 Where appropriate words in the singular shall include the plural and vice versa.

1.4 Reference to any statute or statutory provision shall include a reference to that statute or statutory provision as is it amended, extended or re-enacted at any time.

1.5 Where in the Agreement You agree not to do any act or thing You also agree not to allow, and to take all reasonable measures to prevent, any other person doing that act or thing.

2.0 Provision of Services

2.1 To order a Service, You must sign and return the Cloud Solution Quotation Form. However, if at our discretion We accept an order for a Service placed other than on the Cloud Solution Quotation Form or if We install a Service without having received from You, and/or accepted, the Cloud Solution Quotation Form the Service shall be provided in accordance with the terms of the Agreement. You must also accept the terms of use of the Software Licences.

2.2 In relation to a particular

Service, the Agreement shall come into force on the Service Commencement Date and shall, subject to any earlier termination in accordance with the terms of the Agreement, continue in force for the Minimum Period and after that will continue unless either of Us terminates the Service by giving to the other not less than ninety (90) days prior written notice (which cannot expire any earlier than the end of the Minimum Period). Any notice to terminate must be given in accordance with clause 19. The Minimum Period will start from the point where the Services are ’Ready for Service’ (see clause 5.8), unless otherwise agreed in writing.

2.3 If You terminate a Service before the end of the Minimum Period You must pay Us the Cancellation Charges.

2.4 We shall provide the Services to You in exchange for the payment of the Charges by You.

2.5 We will not begin providing the Services until you have satisfied Our order approval criteria. Service activation is subject to credit checking (which we may repeat at any time at Our option), and to cover the Charges You may be required to pay a Call Bond (as defined in clause 11.15) which will be held by Us whilst You are a customer at Our sole discretion. In addition, access to the Services will only be activated once You have (i) confirmed acceptance of the terms on which the Services are to be provided by signing and returning to Us the Cloud Solution Quotation Form; (ii) provided an authorisation to set up a Direct Debit and (iii) paid any Set Up Fees, Charges (which are required to be paid upfront) and any other upfront monthly payments in full.

2.6 If You wish Us to perform any service which is not part of the Services, We may carry out that service at Our sole option, and You will be charged separately for such service, or services, at our then current rates for such services as shall be notified to You.

2.7 We may periodically change Your standard security procedures or password and shall notify You of any such changes.

2.8 For the avoidance of doubt, access to the Services is granted for a maximum number of permitted concurrent or named agents, channels, reviewers, recording ports or blending seats (as appropriate to the service being provided) and as set out in the Cloud Solution Quotation Form. You may temporarily opt to increase without commitment (Licence Flexing) the maximum number of permitted concurrent or named agents, channels, reviewers, recording ports or blending seats (as appropriate) at any time by paying Us the Flexing Charges. The Flexing Changes will be paid by You to Us by Direct Debit to the bank account (which We notify to You) within 10 days of the date of receipt of Our invoice.

2.9 We may increase or implement new Flexing Charges on any anniversary of the Service Commencement Date and/or at any time after that and by giving 30 days’ notice to You or by posting the revised (or new) Flexing Charges on the Website.

2.10 Within 7 days of Our notice to You of increased or new Flexing Charges as set out in clause 2.9, You may send Us a notice of termination within 7 days of Our notice to You, (and such termination will take effect on the date the increased or new Flexing Charges become effective) or such later date as You specify in Your notice and no Cancellation Charges will apply. If You do not send Us a notice to terminate in this period You are deemed to have accepted the increased or new Flexing Charges. We may decrease Flexing Charges at any time without notice and You shall have no right to terminate the Agreement.

3.0 Service Levels

3.1 We will use the reasonable skill and care of a competent application service provider in providing the Service. However, You accept that it is technically impracticable to provide the Service entirely free of faults. You acknowledge that the Service is not guaranteed nor will it be error free, especially where it relies upon public networks over which We have no control.

3.2 Subject to You complying with all of the terms of the Agreement, We will provide the Services to You during the term of this Agreement in accordance with the Service Levels and in accordance with the Law. In the event of a failure by Us to meet the obligations of the Agreement, your sole and exclusive remedy, and Our sole obligation, is the issue of Service Credits. In order to qualify for Service Credits, You must be up to date on all of Your payment obligations, to Us, and not be in breach of the Agreement. Service Credits will be issued as credits against future invoices for Services. Total cumulative Service Credits during any given month shall not exceed Your monthly Charges for those Services affected.

3.3 We may modify any aspect of the Service Level Agreement upon 30 days’ prior notice or by posting the revised Service Levels on the Website. Should You wish to terminate the Agreement as a result of any change, You may do so by sending Us a notice of termination within 7 days of either Our notice to You or of the Change being posted on the Website (and termination will take effect from the date of the Change) and no Cancellation Charges will apply. If you do not send us this notice of termination, the modified Service Level Agreement will apply from the effective date for as long as You continue to retain Services from Us.

3.4 For the avoidance of doubt, Service Credits will not be available to You to the extent that Our failure to meet any Service Levels results from:

3.4.1 suspension or termination of the Agreement pursuant to clauses 18 and 20; or

3.4.2 from any event outside Our control as described in clause 22; or

3.4.3 from Your act, default or omission.

3.5 We shall use all reasonable endeavours to make the Services and Software available as specified in the Service Level Agreement. However, the Services or any particular Service Levels may be suspended or modified for so long as is reasonably necessary (subject to prior written notice to You):

(i) to enable either of us to comply with an order or request from a governmental, or other competent regulatory body or administrative authority; or

(ii) to enable Us to carry out work which is necessary (in Our reasonable opinion) to maintain or improve the Services; or

(iii) to carry out standard maintenance;

provided that We will use reasonable endeavours to schedule such Downtime during hours of low usage of the Services in order to reduce the impact on the Services.

3.6 We may in Our sole discretion make changes or upgrades to the Software or Services or their accessibility to the Technical Environment, provided that such changes or upgrades do not cause any material reduction in functionality. We will endeavour to give at least seven days written notice of any such changes. We will use reasonable endeavours to reduce the Downtime which may be caused by such change or upgrade and such Downtime will not count towards Service Credits. If as a result of such changes, Your ability to use the Services is materially and adversely affected, You should immediately notify us in writing. If We agree this is the case, and We are unable to mitigate the adverse effect within 90 working days, You may terminate the Agreement on thirty days written notice to Us.

3.7 In the event of Downtime (as set out in clauses 3.5 or 3.6), You can obtain current status reports in respect of such Downtime via the support portal on the Website.

4.0 Emergency Calls

4.1 You understand and agree that VOIP (voice over IP) networks are not guaranteed to provide emergency services calling and depend upon the availability of power and network connectivity. Any 999 or 112 or other emergency service access that We provide for You in any part of the world is provided on a reasonable efforts basis and You will take steps to ensure You have other mechanisms to access emergency response services. We will collect emergency service address information from you for each calling line identity (‘CLI’) that You are provided with. However, You understand and agree that You are responsible for (i) keeping information current; (ii) providing this information to Us; and (iii) for updating location data if You have roaming users.

4.2 Where We provide You with telephone lines and numbers, each number will be associated with a designated Site address that you will provide to us. The CLI of the caller is provided to the emergency services to enable deduction of the location of the caller when a 999 or 112 or other emergency services call is made. If You move the telephone number to another Site the CLI presented to the emergency services when dialling 999 or 112 (or another emergency services number) will be that of the original designated Site and so the emergency services bureau will not know the caller’s correct location from the CLI and, for example in the event of a silent call, may send emergency service personnel to the wrong location. If You move devices or telephone numbers associated to them, You must provide updated address information to Us for the CLIs that have been moved or You must provide to the affected users a CLI for the Site from which the call is made. You acknowledge that Our Services are provided using both PSTN and VOIP services. Where VOIP services are used, which can occur even where the original call is dialled from a PSTN line, or where users can manually dial phone calls from IP handsets, softphones, IP PBX systems and other Computer devices, Jt is Your responsibility to keep Us updated as to the location and address from which each Service is used, especially where this address is registered address of the CLI in question. We will not be responsible for any loss, damage or injury caused as a result of a CLI being associated to an incorrect address. In addition, You acknowledge it is Your responsibility to train Your staff in the use of equipment to reduce errors in attempting to contact emergency services numbers from any telephone line provided by Us especially in the case of roaming users whose number may be attached to a portable device such as a smart phone or laptop computer which they take with them to multiple locations. Your attention is drawn to the provisions of clause 9.6, if We migrate telephone numbers from Your existing supplier to the Network.

5.0 Installing the Service

5.1 All Services are supplied subject to:

5.1.1 satisfactory Survey;

5.1.2 site access permissions being obtained (as described in clause 7); and

5.1.3 Your satisfactory credit status (as set out in clause 11.15).

We may (without any liability) on giving notice to You, terminate a Service if in Our reasonable opinion any of these conditions are not satisfied.

5.2 We or our agents may, but shall not be obliged to, conduct a Survey of any Site and subject to the result of that Survey may further amend any proposed Service Commencement Date based on the results of that Survey. Charges are subject to Survey. If a Survey indicates that We will incur unusual additional costs in providing the Service, We shall be entitled on notification to You to increase the Charges by the amount of such costs. If the results of the Survey substantially affect the Charges payable by You, We shall provide You with as much notice as is reasonably practicable and You shall have the right to terminate the Agreement by giving Us written notice within 7 days of receipt of Our proposed change (unless the change relates to any additional third party costs We will incur in providing the service, where You must give Us notice within 48 hours of receipt). Cancellation Charges shall not be payable by You upon termination by You under this clause 5.2.

5.3 Where We provide a fixed cost activation / installation service, these will be set out (or referred to) in the Cloud Solution Quotation Form and their contents are detailed on the Web Site at  https://westuc.com/terms-conditions-policies. Where You require additional services We will charge for these at our then current day rates.

5.4 If We are delayed or are forced to expend additional effort due to Our error, then We will not charge You for this, but if You delay Our delivery or cancel any appointments or refuse Us access or change agreed live dates with less than 7 calendar days’ notice, then We will charge for those missed appointments or for such additional effort We expend and for any other expenses (such as delayed porting or additional third party network provider charges, travel costs and other reasonable costs) as a result of those delays and You agree to accept such charges. This is also true if We are forced to incur additional time at the Site due to any delays caused by You, such as the environment not being ready, pre-requisites not being met, changes to the schedule that are made by You, or Your key resources being unavailable.

5.5 We will use Our reasonable endeavours to install and connect the Purchased Equipment and activating the Service, so that the Service is available by the proposed Service Commencement Date agreed between us. Any lead times contained in the Cloud Solution Quotation Form are general estimates only and are not binding on Us. You agree that any delays to activation are not reason for cancellation of this Agreement.

5.6 You are responsible for providing appropriate power, space, cabling, and environment as well as any Customer Equipment to operate the Services and if You use Our Software then You agree to ensure that Your computers meet Our then current requirements for hardware and software. In addition, You agree that You will ensure, prior to the deployment, that You meet all the pre-requisites for networking, connectivity, security and access that We request in our service activation documentation provided during the deployment (or as otherwise agreed between us). Failure to do this may result in You delaying Our delivery and being charged for Our additional time expended.

5.7 The Service Commencement Date shall not be changed except:

a) by agreement in writing between us; or

b) by a delay which is caused by Your wilful act, neglect or failure to fulfil Your obligations under the Agreement; or

c) by a delay which is due to any other cause beyond Our reasonable control (as set out in clause 22); or

d) in accordance with clause 5.2.

5.8 We will advise You when the Service is ’Ready for Service’. This is the date when You could use the Service or any part of it for commercial gain. We will then charge for the Service and its transactional usage, whether or not You are using the Service in part or in full.

5.9 You must provide (at Your cost) appropriate space, power, ducting and environment to install and maintain the Customer Equipment and/or Purchased Equipment at the Site. You must ensure that any necessary preparations are made before the Customer Equipment and/or Purchased Equipment is connected and in accordance with any of Our instructions.

5.10 If You do not take delivery or allow the installation of the Equipment and/or Purchased Equipment or any other works on any agreed date We may arrange for storage of the Equipment and/or Purchased Equipment at Your risk and Your cost. In such circumstances, We may also charge You a call out fee together with any other reasonable costs We incur as a result for rescheduling a delivery or related Survey or installation.

6.0 Licence and Scope of Use

6.1 We grant to You a non-exclusive, non-transferable licence to use the Services and the Software on the terms of the Agreement for Your normal business purposes.

6.2 Nothing in the Agreement transfers any proprietary rights in the Software or the Services to You.

6.3 You shall

6.3.1 not reproduce, disseminate or otherwise disclose the content of any Software except as expressly set out in the Agreement;

6.3.2 not electronically transmit any part of the Software except as necessary for Your licensed use of the Software;

6.3.3 not use run-time versions of any third party products which may be embedded in the Software, for any use other than the use of the Software;

6.3.4 not modify, disassemble, decompile, or reverse engineer any Software except to the extent required by Law and must first give 30 days’ notice to Us;

6.3.5 not permit the use by any third party of the Software outside the terms of the Agreement;

6.3.6 not use the Software in any way not expressly provided for by the Agreement.

7.0 Access to Site & Equipment

7.1 In order to perform Our obligations under the Agreement, You give Your consent to Us (including to Our employees and authorised representatives):

7.1.1 entering those parts of the Site or Your other premises or land as necessary to the extent that they are used (or to be used) for the purposes of the provision of the Service;

7.1.2 performing works in connection with the installation, maintenance, adjustment, repair, moving, replacement, renewal or removal of the Purchased Equipment at or on the Site, premises or land from time to time; and

7.1.3 bringing upon, installing and keeping installed at the Site, premises or land the Purchased Equipment and such other equipment as is reasonably necessary for the provision of the Service or the works referred to in clause 7.1.2

provided that We will give You reasonable notice of these actions (except in an emergency when no notice shall be required).

7.2 You shall at Your own expense provide any further consents needed from a third party as may be required to enable Us to do all things described in clause 7.1 or to enable Us to deliver the Service. We shall have no liability to You in the event that You cannot obtain these.

7.3 Each of us shall at all times comply and procure that our employees and authorised representatives comply with all reasonable instructions of the other of us or of any third party referred to in clause 7.2.

7.4 Any person in apparent authority who grants entry to the Site or other premises or land shall be deemed to have Your authority to grant such entry.

7.5 You warrant that You will not use the Site or other premises or land so as to make any of the rights granted to Us in clause 7.1 substantially more difficult or costly to exercise.

7.6 You must provide a safe and suitable working environment for Our employees, agents or contractors at the Site including the provision of desk space, power and unrestricted internet access where required.

7.7 The provisions of this clause shall apply for the duration of the Agreement and for other periods after that as We may require to exercise Our rights to disconnect any Purchased Equipment and remove it from the Site or other premises.

7.8 Unless otherwise agreed in writing, You must provide a secure electricity supply at the Site for the installation, operation and maintenance of the Customer Equipment and/or Purchased Equipment at such points and with such connections as We specify. Back-up power with sufficient capacity to conform to the standby requirements of the relevant British standards is needed if the Service is required to continue uninterrupted in the event of a failure in the principal power supply. We shall not be liable for faults arising in the Service, Customer Equipment and/or Purchased Equipment caused by failures in power supply.

7.9 We shall use our reasonable endeavours to comply with Your requests in respect of the location of the Purchased Equipment but Our reasonable decision on this matter shall be final and binding.

7.10 The Equipment shall remain Our (or Our nominees’) property. You agree to make ownership of the Equipment at the Sites clear to all third parties. We may modify, substitute, renew or add to the Equipment from time to time at Our sole discretion provided that such modifications, substitutions, renewals or additions shall not materially and adversely affect the Service. Risk in and liability for Purchased Equipment located at the Sites and Purchased Equipment shall pass to You on delivery of each item thereof. You must insure the Equipment and Purchased Equipment in respect of all relevant risks. Property and ownership of Purchased Equipment shall not pass to You until You have paid Us the relevant purchase price in full.

7.11 You are responsible for ensuring at all times the safe keeping and proper use of the Purchased Equipment at the Site. Except where such loss or damage is solely due to Our negligent act or omission, or that of Our employees, subcontractors or agents, You must indemnify Us for any loss or damage to the Equipment (including but not limited to lightning or electrical damage). In particular (but without limiting the generality of this clause) You agree:

7.11.1 not to (and to ensure that no other person shall) sell, let, transfer, dispose of, mortgage, charge, modify, repair, service, tamper with, remove or interfere with the Equipment; or

7.11.2 not to allow any distress, seizure or execution to be levied against any of the Equipment or otherwise do anything which may effect Our rights in the Equipment;

7.11.3 to keep the Equipment at the Site and stationary at all times;

7.11.4 to keep and use the Equipment and/or Purchased Equipment in accordance with any written instructions which We notify to You at any time or, in the absence of such instructions, to the same standard as a reasonable owner of such Equipment would if it were their property;

7.11.5 not to add to, modify, or in any way interfere with the Equipment and/or Purchased Equipment, including without limitation the connection of any equipment or device designed to divert electronic communications services to a third party electronic communications provider;

7.11.6 in the case of an emergency, to take whatever steps as are reasonably necessary to safeguard the Purchased Equipment and to notify Us as soon as possible of the circumstances of such emergency;

7.11.7 not to cause the Purchased Equipment to be repaired, serviced or otherwise attended to except by Our authorised representative;

7.11.8 not to do anything nor to allow any circumstance, matter or thing from arising or occurring, which is likely to damage the Equipment or detract from or impair its performance or operation;

7.11.10 to permit Us or Our agent to inspect, test and maintain the Purchased Equipment at all reasonable times and on reasonable notice.

7.12 You must immediately notify Us of any loss or damage to the Purchased Equipment. We shall have no liability whatsoever for any loss or damage incurred as a direct or indirect result of Your breach of clause 8.12.

7.13 You may provide Customer Equipment to connect to the Services, subject to it supporting the appropriate industry standards to connect to the Network and the Services. Where You do this then You accept that there may some features and services that You will not be able to use, and You accept total responsibility for the provisioning, management, security, operation and support of such equipment. Where We provide support to You to help You make this equipment operate with the Network, you agree to pay Our reasonable time and material costs to achieve such connections. Where the equipment You choose to provide is the same make and model as equipment on Our standard supply list then You can optionally pay a provisioning setup and monthly fee (determined by Us and agreed by You) for each device and We will then manage and support Your devices as if We had provided them. For the avoidance of doubt, We are not responsible for the repair or replacement of any hardware that You provide.

7.14 We shall have no liability whatsoever where any inability to use the Services is due to incompatibility between Customer Equipment and the Purchased Equipment, Services and Network and/or any third party’s communications network or for any breakdown or failure in Customer Equipment. Where You provide Customer Equipment and ask us to make changes to our Network or the Service to ensure compatibility, then You agree that We may charge You for Our efforts to achieve this at Our then current daily rate.

7.15 Purchased Equipment provided by Us will be supported for the manufacturer’s warranty period on a ‘return to base’ basis only. Equipment that fails outside the warranty period can be repaired or replaced by Us provided that You agree to pay for all and any costs for its repair or replacement.

8.0 Your Obligations

8.1 You may use the Services only by:

8.1.1 accessing the Services in accordance with the Service Levels; and

8.1.2 entering, editing, transferring or deleting and moving its input comprising Customer Information, documents, data, files and other content within the Services.

8.2 You understand and agree that it is Your sole responsibility to determine that the Software and Services meet the needs of Your business and to satisfy Yourself that the Software is ready for operational use in Your business before it is so used.

8.3 You are responsible for maintaining back up and reconstruction of Your own software and the Customer Information.

8.4 This clause is blank.

8.5 You undertake not to re-sell for money or money’s worth the Service or Equipment or any part thereof to any person without Our prior written consent.

8.6 You undertake to use the Purchased Equipment and Service in accordance with any conditions and/or instructions as We may notify to you in writing from time to time and in accordance with the Law.

8.7 You must not use, or allow anyone to use, the Service:

8.7.1 to send or receive a communication which is offensive, abusive, indecent, obscene or menacing or in breach of any obligations set out by the regulator for the territory in which you are based or to which you are communicating;

8.7.2 to cause annoyance, inconvenience or needless anxiety to anyone;

8.7.3 to violate or infringe the rights of any person;

8.7.4 in breach of the Agreement; or

8.7.5 in breach of the Law (which shall specifically include conduct contrary to the Computer Misuse Act 1990 or the Telecommunications Act 1984, or the Data Protection Act1998, or the OFCOM or ICSTIS codes of practice or the lawful requirements of any existing or future regulatory body) or any equivalent, comparable or similar rules, regulations or laws in any applicable jurisdiction.

ANY BREACH OF THIS CLAUSE MAY RESULT IN THE TERMINATION OF ALL SERVICES AND MAY RESULT IN REGULATORY PROSECUTION OR FINES.

8.8 You must not change the configuration of the Purchased Equipment or use the Service in excess of any capacity or other restrictions imposed by the Agreement or otherwise agreed in writing unless You wish to Licence Flex. If You breach this clause We may without effecting Our other rights, increase the Charges as We reasonably think fit and You shall pay such increased Charges. We may also without notice take steps to protect our network and the interests of Our other customers including inhibiting or restricting capacity available to You.

8.9 We will allocate You accounts to access the Service, each of which will come with a Password. You must keep Your Password safe and confidential and notify Us immediately if any third party becomes aware of them. You must not copy or attempt to copy any smart card or other security device. We reserve the right to change the Password without notice and, if We have reason to believe You are in breach of this clause to invalidate such Password and/or to terminate the Agreement.

8.10 We may (but shall not be obliged to) agree to any request by You to alter a Password. You may be required to pay a charge for such alteration where We have to do this for You but not if You do it Yourself through the Website.

8.11 You are responsible for the use of the Service (whether authorised or not and whether by You or any other person), including all Charges incurred and any breaches of the Agreement.

8.12 You shall:

8.12.1 comply in every respect with all instructions which We provide to You concerning the Services;

8.12.2 obtain all necessary permissions to use and pay for the Services selected, to receive, download, upload, display, distribute or execute other programs or perform other works;

8.13 You shall use only Customer Equipment which is in good working order and in compliance with any specification applicable to the Customer Equipment. You shall give to Us 90 days’ written notice of any changes You propose to make to the Customer Equipment. If any such Customer Equipment is not compatible with the Services or Software, We shall notify You in writing, whereupon You shall promptly rectify the situation to Our reasonable satisfaction.

8.14 You shall acquire and maintain all licences and permissions necessary in respect of any third party software You may use in connection with the Services. You warrant and confirm that any Customer Equipment, Customer Information or other materials provided by You to Us, or utilised by Us in the provision of Services, will not infringe any Intellectual Property Rights of any third party.

8.15 If, for the purpose of providing the Services, it is necessary or desirable for Us to access or use any Customer Equipment, Customer Information or facilities or services, You will make these available to Us for access free of charge.

8.16 You acknowledge and agree that You are entirely responsible for Your Customer Information and Your input to the Software and the Services, and for any use that You or any third party may make of the such Customer Information and input for any purposes, and that We have no responsibility for such input or use. Without effecting the general nature of this clause, You undertake to comply fully with all Laws, regulations, licences or binding codes or standards of practice relevant to personal data (including without limitation the Data Protection Act 1998). For clarity, We will be deemed the “Data Processor” under the Agreement, and You will be deemed the “Data Controller”, such terms defined as follows: (i) “Processing”, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including (a) organisation, adaptation or alteration of the information or data, (b) retrieval, consultation or use of the information or data, (c) disclosure of the information or data by transmission, dissemination or otherwise making available, or (d) alignment, combination, blocking, erasure or destruction of the information or data; (ii) Data Processor”, in relation to information or data, means the party who performs Processing of the data on Your behalf; and (iii) “Data Controller”, in relation to information or data, means You who (either alone or jointly or in common with other parties) determines the purposes for which and the manner in which any information or data are, or are to be, Processed.

8.17 By inputting Customer Information to the System, You hereby permit Us to reproduce, modify, adapt and publish the content for the purpose of providing the Services to You.

8.18 If You are in breach of any of your obligations in the Agreement, then, without effecting any other terms of the Agreement. We shall not be liable for any failure to meet the Service Levels which arises as a direct or indirect result of such breach;

8.19 If We suffer any loss, damage or expense as a result of:

8.19.1 any unauthorised access to, or use or misuse of the Services by any of Your employees, agents or sub-contractors;

8.19.2 any unauthorised access to, or use or misuse of the Services by any third party if such access, use or misuse was permitted or facilitated by such employee, agent or sub-contractor;

You will fully indemnify Us in respect of such loss, damage or expense.

8.20 When You are using Our call recording platform You should ensure that You are not taking any card payments directly where the payment card data will be deliberately or inadvertently recorded on Our call recording platforms.  Accordingly, You agree that You shall not, under any circumstances, record any payment card data to or through Our call recording platforms. Should calls be stored on Our call recording platforms containing payment card data in breach of this clause, then We are not responsible for and shall have no obligations with respect to privacy regulations or PCI compliance for such payment card data. Provided that this clause shall not apply to payment card data processed through Our ‘Advanced PCI’ service.

9.0 Telephone Numbers and Porting

9.1 Any telephone numbers We allocate to You for Your use do not belong to You, albeit that You will be assigned as the Customer for these numbers and We will be assigned as the “Carrier of Record”. You accept that You do not acquire any rights whatsoever in such telephone numbers. You must not attempt to apply for registration of the same as a trademark, service mark, or domain name whether on its own or in conjunction with some other words or trading style.

9.2 You are not entitled to sell or agree to transfer to a third party any telephone number allocated to You.

9.3 We are entitled, for commercial, operational or technical reasons or in order to comply with the requirements of any competent authority, to withdraw or change any telephone number or code or group of telephone numbers or codes allocated or provisionally allocated to You. We shall not be liable for any costs, inconvenience or other losses (including without limitation marketing and stationery costs) You incur as a result of any such change or withdrawal. We will use Our reasonable endeavours to give You reasonable notice of such change or withdrawal.

9.4 Where a regulator (in any territory) makes, or market conditions require Us to change pricing related to a number or range of numbers, then We will advise You of this as soon as possible, but it shall not be deemed a valid reason for Cancellation of the Service nor will it avoid the need for You to pay Early Termination Charges should You choose to Terminate as a result of such changes.

9.5 If You are allocated a number which falls within a range of numbers classified from time to time by OFCOM (or any other competent authority) as being for the provision of a particular type of service, then You must ensure that any service provided by You on that number conform at all times with the type allocated to that number range.

9.6 Where you ask Us to migrate telephone numbers from Your existing supplier to the Network, We will do this for you upon receipt of relevant porting forms, correctly completed with billing information, post codes, account numbers and other such information as maybe required to complete the porting process. You will provide us full assistance in completing the porting process as quickly as possible.

9.7 You understand and agree that We do not control the entire porting process and that delays may occur, or in certain cases, where the information You provide is wrong, or if You delay the porting date after it is confirmed, that You may be charged for our time and the costs of resubmission of the porting requests and related number management.

9.8 Any time frames related to porting that we refer to are based upon industry standards only and are not a guarantee of any specific timeframe. We will not be responsible for any delays caused by the delay to number porting whether in Our domain or not. Numbers that We provide to You from Our network may or may not be portable in the future and We make no guarantee of this as We do not have porting agreements with all suppliers globally. It is agreed that delays in porting shall not be cause for Cancellation or non-payment of Charges for early termination or otherwise.

9.9 To avoid call fraud, Your accounts are automatically activated with a range of call barring in place to protect You from unauthorised calling if Your account were to be compromised by fraudsters. We recognise that some customers have a legitimate reason to call destinations which are by default barred for Your protection and if You sign an additional waiver document We will remove the call bar from Your account so that Your calling is entirely unrestricted. You are then responsible for all call charges whether legitimately incurred or not and whether We reduce your loss or not.

10.0 Data Connectivity

10.1 In order to use the Services You will need to connect to Us over either public (internet) or private internet provider connectivity (e.g. leased line, MPLS, private DSL or other technologies). In all cases, it is essential that You carefully ensure all Our pre-requisite requirements for internet connectivity, firewall configuration and local network configuration are met in full to avoid problems, poor quality voice experiences and other issues. If upon investigation We find that You have not followed our pre-requisites (or if You have erroneously confirmed that You have), then We are entitled to charge for Our time in respect of any additional effort that We have incurred in troubleshooting or supporting You to resolve such issues.

10.2 Delays to Your ability to use the Service due to the provisioning lead times associated with private connectivity circuits or public internet circuits will not be reason to delay the Service Commencement Date for the service and our Ready for Service date shall stand regardless.

10.3 You acknowledge that You are entirely dependent upon the availability of public or private connectivity to access and use the Service and with this in mind, You acknowledge Our strong recommendation to ensure that You have a resilient connection to the Network to avoid any interruption to Your usage of the Service. You may choose to use a second public internet connection to provide back up to a primary public or private connection, or You may provide multiple private circuits to deliver to different sites in both your Network and Ours. You are responsible for correctly configuring Your network to ensure that automatic failover occurs in the event of a failure of the primary connection and recovery once service is re-established to the affected connection, and You are solely responsible for deciding which level of resilient connectivity is appropriate to your business.

10.4 Where You contract with Us to provide any data connectivity to your Sites, then You will provide Us with all and any assistance to enable the delivery of the circuits, (which assistance shall be time critical) in Your securing access and where appropriate any third party consents to enable the delivery of the Service. You understand and agree that where We incur additional effort in the provisioning of circuits owing to delays caused by You, your landlords or other authorities, then We may charge for such extra efforts at Our then current rates.

11.0 Charges

11.1 You must pay to Us the Charges for the Services at the rates set out in the Cloud Solution Quotation Form. We will bill You in whichever currency We mutually agree. You are responsible for any exchange rate variances between Our base currency and the currency that You opt to be billed in. You must notify Us of any disputed Charges within thirty (30) days from the date of the invoice, otherwise You will be deemed to agree to such Charges and We will not be subject to making adjustments to Charges or invoices.

11.2 In addition to the Charges, You shall pay all applicable fees, duties, tolls, administrative assessments, surcharges, or taxes now or hereafter attributable to the Services and included on Your invoice. In the event You are required by law to make any deductions or to withhold from Your payment to Us, You shall pay Us such additional amounts so that net amount We receive from You is equal to the full amount for the Charges which We would have received from You had such withholding not been made. You shall pay the applicable tax authorities any such required deduction or withholding.

11.3 All Charges due to Us must be paid in full by Your bank immediately on presentation of each automated Direct Debit payment request by Us.

11.4 Payment for the Fixed Charges, shall be made monthly in advance by You using Direct Debit (if You are on a Freedom rolling plan) or otherwise for the Minimum Period in advance by bank transfer. Usage charges are billed in arrears and collected by Direct Debit on the first day of each calendar month for the previous month’s usage.

Usage charges are split between Call Charges and other Usage fees, which may be billed on a per minute basis or on a transactional basis (such as SMS Text messages which are billed per message).

Call Charges, including login charges, are charged per minute calculated on a per second basis, subject to a minimum call charge of thirty seconds per call (unless otherwise agreed in writing by Us).

Call recording charges and PCI charges are billed per minute or part thereof.

Call recording storage charges are billed per minute per month or part thereof that calls are stored.

Some call types or transaction types may also include a setup cost per call or a minimum Charge irrespective of destination and duration.

11.5 The telecom market for call termination pricing is dynamic and the costs of calls to different destinations change on a daily basis at a wholesale level. The Cloud Solution Quotation Form contains a complete list of the rates which are fixed for the Minimum Period. Other destinations and service usage charges are billed according to our variable retail rates table which is available online at https://westuc.com/terms-conditions-policies. These variable rates are subject to regular modification due to changes in market conditions, wholesale prices and other circumstances beyond Our control such as regulatory events. In the unlikely event that we are forced by market conditions or a regulator to change a usage charge that has been Fixed on Your Cloud Solution Quotation Form during the Minimum Period, We will notify You of the relevant rate change for the destination in question.

11.6 Costs which are additional to the Charges and which are also Your responsibility include:

11.6.1 personal computers, ip phones, printers, networking equipment or other equipment which may be necessary to access and use the Services and Software licenses related to this equipment;

11.6.2 communication charges, access fees, levies, tariffs or other related costs between You and Us (unless provided by Us);

11.6.3 installation and testing of any communications lines, links or interfaces or any equipment or service (unless provided by Us as part of the Purchased Equipment) used in connection with the Services.

11.7 All Charges are non-refundable.

11.8 Where You commit to a Minimum Period for the provision of Services in order in order to obtain the maximum benefit of reduced fixed monthly service Charges, those Charges for the Minimum Period are due for payment in full annually in advance before the Service can be activated, and such charges are non-refundable once the relevant Service has been made Ready for Service or paid for whichever is the sooner. Where You make a commitment for a term period in return for reduced pricing, You agree that You are committing to the Services for that full period, and will pay for the entirety of the committed term in full as regards all Charges (of whatever nature).

11.9 We may also require you to pay Cancellation Charges as regards the Usage Charges that You will not be paying as a result of Your early termination. These will be calculated on a prorated basis of 60% of the average usage of Your usage of the Services over the last 6 months prior to Your request to terminate the Agreement early. You agree that these charges are reasonable and You will pay them by Direct Debit or bank transfer within 7 days of invoice issued by Us. You understand and agree that We have achieved discounts with Our suppliers in return for Your commitment and therefore that is reasonable to charge the full contract term fees in the event of cancellation by You.

11.10 If, before entering into the Agreement or at any time during its term, You have indicated any anticipated usage/take up levels of the Service, and such usage/take up levels are not met, We may, without effecting any other rights under the Agreement, apply revised Charges as notified to You in writing or apply minimum charges to your account at the usage levels which you have indicated.

11.11 Where You have committed to an agreed fixed term for the provision of Services, unless We agree otherwise:

11.11.1 at the end of this fixed term, We shall renew the Agreement automatically for the same period (i.e. equal to the Minimum Period) and subject to the same Charges, unless You have notified Us at least 60 days in advance of the end of the fixed term, in writing, in which case We will then migrate You to a Freedom 30 day rolling tariff at then current Freedom rates posted on the Website.

11.11.2 You request an upgrade or additional services or users, then it is agreed that the initial agreed Minimum Period fixed term shall be automatically extended to match that of the upgrade or additional services or users in question so that they all run conterminously.

11.12 All services where We take over provision of service from another service provider and bill these to You, are for a minimum period of 12 months or the Minimum Period (whichever is the longer). If You terminate the Agreement before this period has expired, You agree that regardless of the reason for termination, the remaining rental costs associated to this service shall be payable immediately in full by You.

11.13 Time is of the essence for payment for all sums due under the Agreement.

11.14 Payments that are not made on time, or where Direct Debit Collection requests by Us are refused for any reason, may be subjected to interest at 8% above the bank of England Base Rate, and in all cases, even if interest is not levied, a late payment administration fee of 2.5% of Your total outstanding invoice balance (subject to a minimum of £20 or equivalent in your billing currency) will be automatically applied to the next invoice generated by Us to You. If You fail to set up a Direct Debit, or the Direct Debit lapses or is cancelled (where a Direct Debit is available to You in Your geographic location), We will apply a non-automated payment administration fee of 1.5% of Your total invoice value (subject to a minimum of £20 or equivalent in your billing currency) to each month’s invoice for so long as a Direct Debit is not in place. In the event Charges due are not timely paid in full for any reason, We have the right to suspend all or any portion of the Services until such time as all charges and applicable interest amounts and/or late fees have been paid. Such suspension shall not relieve You of any payment liability. You agree to reimburse Us for any costs, expenses, or fees expended by Us in connection with any collection efforts against You, including reasonable internal and outside attorneys' fees.

11.15 To prevent fraud and keep call charges low, We automatically perform credit checks on all new customers. These credit checks are carried out using industry leading credit agencies and reflect real-time credit insurance available on a particular customer’s account. Where Your expected usage exceeds that of the credit limit recommended by our third party credit information providers, We may require You to lodge with us a “Call Bond” to mitigate risk against call charges that You could reasonably be expected to incur (taking in to account Your number of users and the expected call destinations). If a Call Bond is required, You will be notified prior to activation of the Service (including the value and currency of the Call Bond required) and the amount of the Call Bond must be sent by bank transfer by You to Our bank account before You will be provided access to the Network and calling access enabled. No interest is payable on funds deposited for Call Bonds. Existing customer accounts are also periodically reviewed for credit insurance purposes and should Your usage exceed Your then current rating, a Call Bond may be required by Us and You agree to pay this to ensure uninterrupted access to the Service. Call Bonds are repaid to terminating customers once all outstanding charges have been met, and any Equipment is returned to Us in full working order and good repair.

11.16 If We deem necessary from Our regular credit checks, We may

11.16.1 migrate Your account to more frequent billing cycles;

11.16.2 impose credit limits on You;

11.16.3 suspend the Services (without notice) when such limits are reached until payment in full has been made; or

11.16.4 terminate the Agreement in whole or part immediately on giving You written notice.

11.17 We provide ongoing consulting and operational business user support to You through Our team of ‘Success Managers’ throughout the duration of the Agreement. The costs for the Success Manager’s time are included in the Set Up Fees and monthly Rental fees paid by You. Unless otherwise agreed in writing, You are entitled to one onsite business day per month for Success Management services where You have more than 20 concurrent agents billing in excess of £5,000 or equivalent in your local currency per month. Below these rates Success Management services are provided remotely. Where additional Success Management time is requested by You, We shall be entitled to recharge this time at Our then daily rate for Success Management services referred to on the Website. We shall recharge any travel and accommodation costs incurred in the delivery of Success Management services to You. These will be invoiced through the monthly usage invoices at Our then standard rates for travel and subsistence.

12.0 Security and Information

12.1 We will effect and maintain reasonable security measures, in order to safeguard Customer Information from unauthorised access and use, and to minimise the risk of a security breach and, (if appropriate) these will be specified in the Service Level Agreement.

12.2 Encryption techniques (where appropriate) may be used for protecting Customer Information on input and transmission over the Network, as specified in the Service Level Agreement.

12.3 If You learn about or are informed of any components, processes or methods of operating any software comprised in any Service it shall treat such knowledge or information as Our trade secret, and it will not use it to the benefit of any party other than Us or convey it in any way to any third party or allow any third party to acquire it.

12.4 You are entirely responsible for security of access to Your computer systems, Your networks and Your infrastructure and You agree to indemnify Us in respect of any costs incurred by Us or costs We face as a result of Your failure to implement industry standard security measures or follow Our instructions (whether or not detailed in Our documentation on the Website or pre-requisite documents). You will ensure You deploy firewalls, take backups and use antivirus and anti-malware / anti-spam software on all of Your systems and You agree to indemnify Us in respect of any damages or costs incurred by Us which are caused by Your failing to take such basic preventative measures.

12.5 We will maintain all applicable PCI DSS requirements for Our ‘Advanced PCI’ service. We do not warrant or guarantee to any third party that Our ‘Advanced PCI’ card holder environment is invulnerable to attack or compromise.

13.0 Warranties and Liabilities

13.1 We warrant that We are the sole and exclusive owner of the Intellectual Property Rights in the Software and reserve all Our rights in relation to such Software.

13.2 We shall use all reasonable endeavours to maintain the Software free of bugs and viruses but We strongly recommend that You should have Your own effective and updated anti-virus programs.

13.3 We do not and cannot control the network on which the technology operates or the flow of data to or from its network. This flow depends largely on the performance of services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections. Although We will use all commercially reasonable efforts to avoid such events and take all actions We deem appropriate to remedy such events, We cannot guarantee that such events will not occur. We cannot, and do not warrant, that the Services will be uninterrupted, error-free or entirely secure, and disclaim any and all liabilities resulting from or related to such events.

13.4 You understand and agree that We do not provide any back-up software or processing facilities covering the Equipment, Your data on Customer Equipment, Your operating systems or Your application software unless they are specified in the Service Level Agreement and You agree that We will not be responsible or liable if, for any reason concerning any of these, the Services cannot be provided.

13.5 We do not give any other warranties, guarantees or representations concerning the operational performance of the Services. You are entirely responsible for deciding to select the Services for Your own business purposes and We accept no liability for any use to which You put the Services.

13.6 Each Party warrants to the other that it has obtained, where required by Law, all registrations, permits, licences and approvals as necessary in any relevant country for it to perform its obligations under the Agreement, or alternatively, that it is exempt from obtaining them. Upon request each Party will provide the other with copies of all such registrations, permits, licences and approvals. Each Party further warrants and undertakes to the other that in performing its obligations under this Agreement it will comply with all applicable national and local Law.

13.7 We shall indemnify You against any damages (including costs) that may be awarded by a court of competent jurisdiction to any third party in respect of any claim or action that the use of the Services in accordance with the terms of the Agreement infringes the Intellectual Property Rights of such third party (“Intellectual Property Infringement”) provided that You shall:

13.7.1 notify Us in writing of any Intellectual Property Infringement immediately upon becoming aware of it;

13.7.2 give Us the sole conduct of the defence to any claim or action in respect of any Intellectual Property Infringement and not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon Our express written instructions;

13.7.3 act in accordance with Our reasonable instructions and give to Us such assistance as We shall reasonably require in respect to the conduct of the defence for which We shall reimburse Your reasonable costs.

13.8 The indemnity in clause 13.7 shall not apply to any Intellectual Property Infringement where the Intellectual Property Infringement was occasioned by Your use of the Services in conjunction with other apparatus or software which has not been supplied by Us nor where the Intellectual Property Infringement results from the use of Your own design or specification. In such a case, You shall indemnify Us against all claims, proceedings, costs, claims, demands and expenses arising from the Intellectual Property Infringement.

13.9 The indemnity in clause 13.7 states Our entire liability in respect to any Intellectual Property Infringement and We shall have no other liability whatsoever.

13.10 In the event of an Intellectual Property Infringement claim against You, We will be entitled at Our own expense and option to:

13.10.1 procure the right for You to continue using the Service; or

13.10.2 make such alterations, modifications or adjustments to the Service that it becomes non-infringing without incurring a material diminution in performance or function; or

13.10.3 replace the Service with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.

13.11 If We in Our reasonable judgement are not able to exercise any of the options set out in Clause 13.10 then We will be entitled to terminate this Agreement by giving You 30 days written notice.

13.12 You shall indemnify Us and keep Us fully and effectively indemnified on demand from and against any and all losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which We may sustain or incur, or which may be brought or established against it by any person and which in any case arise out of or in relation to or by reason of:

13.12.1 any breach by You of Your obligations under the Agreement;

13.12.2 any unauthorised act or omission by You or Your subcontractors or employees;

13.12.3 the manner in which You, Your subcontractors or employees market or operate the Services;

13.12.4 work carried out by Us, Our employees or subcontractors in accordance with directions or specifications You give to Us;

13.12.5 the independent supply by You, Your subcontractors or employees of any products or services for use in conjunction with or in relation to the Services; or

13.12.6 the content of Customer Information.

13.13

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OR OUR SUPPLIERS OR THEIR AFFILIATES, BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER (including where You are fined by a regulator or government agency for Your use of the Services in a way that contravenes regulations in the territory in which they are used) ARISING OUT OF, OR RESULTING FROM THE SERVICES, THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF THE LEGAL THEORY OF RECOVERY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU OR ANY USER IN REASONABLE RELIANCE, UP TO THE AMOUNT OF THE PRICE ACTUALLY PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY).

14.0 Limitations on Use

14.1 We reserve the right to deny You access to the Services on reasonable grounds, including but not limited to any breach by You of any term of the Agreement. We shall notify You of any such refusal promptly by telephone or e-mail and then confirm it in writing.

14.2 If at any time Your access to, or use of, the Services is not in compliance with any applicable Law or regulation, You will be in breach of the Agreement, and We shall be entitled at Our sole discretion to terminate the Agreement on notice in writing and to discontinue the Services immediately. You understand and agree that We are entitled to report any breach or non-compliance with any Law to any relevant regulatory body or agency, and that We will not incur any liability to You as a result of the breach, the non-compliance, or Our reporting of it.

14.3 In the event of an Intellectual Property Infringement claim against You, We will be entitled at Our own expense and option to:

14.3.1 procure the right for You to continue using the Service; or

14.3.2 make such alterations, modifications or adjustments to the Service that it becomes non-infringing without incurring a material diminution in performance or function; or

14.3.3 replace the Service with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.

14.4 If We in Our reasonable judgement are not able to exercise any of the options set out in clause 14.3 then We will be entitled to terminate this Agreement by giving You 30 days written notice.

15.0 Privacy Statement

15.1 We are committed to protecting Your privacy. We will only use the information that We collect about a customer lawfully (in accordance with the Data Protection Act 1998). For clarity, We will be deemed as the “Data Processor” under the Agreement, and You will be deemed as the “Data Controller”, such terms defined as follows: (i) “Processing”, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including (a) organisation, adaptation or alteration of the information or data, (b) retrieval, consultation or use of the information or data, (c) disclosure of the information or data by transmission, dissemination or otherwise making available, or (d) alignment, combination, blocking, erasure or destruction of the information or data; (ii) Data Processor”, in relation to information or data, means the party who performs Processing of the data on Your behalf; and (iii) “Data Controller”, in relation to information or data, means You who (either alone or jointly or in common with other parties) determines the purposes for which and the manner in which any information or data are, or are to be, Processed.

15.2 We collect information about customers for the purposes of processing customer orders and to provide Our Services. We may use Customer Information as part of any report or publication provided that We will not reveal any personal information.

15.3 The information We hold about customers can be checked, updated and corrected by You by logging on to the support portal of the Website. If You find any inaccuracies in such information You shall promptly correct them via the Website or by notifying Us by email at MNContact@west.com .

15.4 The personal information that We hold will be held securely in accordance with Our internal security policy. Personal data may be processed by Us, our affiliates and our third party suppliers in the United States of America, in the European Economic Area and the rest of the world and (iii) You or the User is the data controller and retains full responsibility for the data processed on its behalf by Us acting as data processor. You represents and warrant you have informed any data subjects concerned of the processing of their personal data pursuant to any access and use of the Services and such data subjects have given their unambiguous consent to such processing in accordance with applicable Data Protection Laws. More details about how that information is used can be found in Our privacy policy which governs User's visit to Our website and use of the Services. Copies are also available from us by post, by contacting customer service.

15.5

The parties agree that Confidential Information may be disclosed to employees, affiliates, suppliers or advisors on a need-to-know basis and who agree to be bound by confidentiality terms and conditions at least as stringent as those herein. Nothing shall prevent or prohibit the receiving party from providing access to Confidential Information as may be required by law, rule or regulation provided that the receiving party gives as much notice as is reasonably practical and provides reasonable assistance to the disclosing party in challenging the disclosure so required by law, rule or regulation. Notwithstanding the foregoing, the parties acknowledge that Recipient shall not be required to return to Discloser or destroy those copies of Information residing on Recipient's backup, disaster recovery or business continuity systems and the obligations hereunder with respect to such Information shall survive until such Information is destroyed.

 

15.6 We may refer to You as Our customer when We supply third parties with information (in marketing literature, publicity materials etc) about Our products or services.

16.0 Links

We may provide links to other World Wide Web sites or resources but We are not responsible or liable, directly or indirectly for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. We are not responsible or liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

17.0 Intellectual Property Rights

17.1 If in the course of or as a result of any Service We provide to You, We or any of Our employees or agents create any documentation, drawings or information, all legal and beneficial rights therein shall be owned by Us. Where We provide such documentation or material to You to enable You to use the Service, We grant You a non-exclusive non-transferable licence to use the documentation or material for this purpose only and You shall treat the documentation and/or material as Confidential Information.

17.2 Intellectual property rights in all Software (in whatever form) We provide to You for the purpose of using the Service or Equipment shall remain Our property or that of Our licensor. We grant You a non-exclusive non transferable licence to use the software for the purpose of using the Service or Equipment and for no other purpose. You agree to comply with the licensing terms imposed or required by Our licensor (if applicable) in respect of Your use of the software.

17.3 You shall on termination of the Agreement for any reason, immediately return all copies of the Software to Us and expunge any copies of the Software from any computer, word processor or other data storage device in Your control.

17.4 The Service may comprise software, services, technical information, training materials or other technical data which are subject to the United States of America Export Control Regulations or the laws or regulations of another country. You may not download or otherwise export or re-export, either directly or indirectly, the software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.

18.0 Suspending the Services

18.1 We may suspend the Service or any part of it:

18.1.1 in an emergency to provide or safeguard a service to a hospital or other emergency organisation or any other essential services;

18.1.2 temporarily to vary the technical specification of the Service or for repair, maintenance or improvement or to protect life, limb or property;

18.1.3 or take any other action necessary in Our reasonable opinion to comply with instructions issued by the Government, a regulatory authority, an emergency service or other competent authority;

18.1.4 if You fail to make any payment to Us when it falls due;

18.1.5 if We suspect on reasonable grounds that You may have committed or may be committing any fraud against Us; or

18.1.6 in any circumstance in which We are entitled to terminate the Agreement.

18.2 Except in an emergency or pursuant to clause 18.1.5 when no such notice is required, We shall give You as much notice as is reasonably practicable if the Service is to be suspended pursuant to clause 18.1 but You shall have no claim against Us for any suspension of the Service pursuant to clause 18.1. Any exercise by Us of our right to suspend the Service or any part of it shall not exclude or prejudice Our right subsequently to terminate the Agreement.

18.3 We may alter Your Direct Debit instruction to cover the Charges (for example the Flexing Charges and Your variable Usage charges each month) relevant to the Service. On proper termination of the Agreement You will be responsible for the cancellation of any Direct Debit instructions (or other authorisations for periodic payment to Us). Except on proper termination of the Agreement You must inform Us immediately if You cancel any Direct Debit instructions. Cancellation of any Direct Debit instruction (or in the event of there being insufficient funds for Us to collect Our Charges) shall entitle Us to suspend and/or terminate the Agreement without notice and entitle us to charge You late payment and non-automated payments administration fees pursuant to the provisions of clause 11.14 of the Agreement.

18.4 We may at our discretion immediately suspend the Service and/or terminate the Agreement if You are in breach of clauses 8.5, 8.6, 8.7 or 8.8. You must indemnify Us against all liabilities, claims, damages, losses and proceedings arising out of or in any way connected with any use of the Service in contravention of any part of the Agreement or the Law.

18.5 If any sum payable under the Agreement (including, without limitation, the Flexing Charges) is not paid within 7 days after its due date for payment then (without effecting Our other rights and remedies) We may suspend the provision of part or all of the Services until the time when payment of all sums due have been made.

18.6 If the Software requires immediate correction to enable it to run effectively, or for immediate compliance with a governmental or regulatory requirement, We may suspend the Software without advance warning for so long as reasonably necessary to carry out the correction or to ensure compliance.

18.7 In addition to any other remedies available at law or in equity and without prejudice to Our rights under the Agreement, We shall have the right to suspend the Services immediately if deemed reasonably necessary by Us in order to protect Our proper interests or those of Our other customers. If practicable and depending on the nature of the reason for such suspension, We may, in Our absolute discretion, give You an opportunity to remedy the situation and if You remedy the situation, We will promptly restore the Services.

18.8 If the Service or any part of it is suspended because of Your default You will remain liable for and must continue to pay Charges during such suspension and shall reimburse Our costs and expenses reasonably incurred by the implementation of such suspension together with all outstanding amounts due under the Agreement. Where We agree (at Our discretion) to recommence the Service You must pay Our reasonable charges in relation to such recommencement and at Our discretion You shall pay a reasonable deposit against future payments.

19.0 Notices

Unless otherwise stated in the Agreement:

19.1 Notices You send to Us shall be delivered by hand or sent by registered post to the Company Secretary, West Cloud Contact Solutions Limited,

Unit 1 & 2, Sawmills End, Barnwood, Gloucester, GL4 3DL, UK

 or such other address as notified to You in writing.

19.2 Notices We send to You may be sent:

19.2.1 by hand or by post to Your billing address specified on the Cloud Solution Quotation Form or to Your registered office; or

19.2.3 by electronic mail to Your electronic mail address specified on the Cloud Solution Quotation Form or as otherwise notified to Us in writing; or

19.2.4 by SMS to your mobile phone number specified on the Cloud Solution Quotation Form or as otherwise notified to Us in writing.

19.3 Notice given by hand shall be deemed given the same day. Notice given by post shall be deemed to have been given 3 days after the date of posting. Any communication by electronic mail shall be deemed to have been made on the day on which the notice is first stored in the other Party’s electronic mailbox. Any communication by SMS shall be deemed to have been made on the day on which the notice is first stored in the other Party’s message inbox.

19.4 When sending Us a written notice to terminate the Agreement or cancel any Service You must ensure that You keep a copy of the notice and proof of delivery.

20.0 Term and Termination

20.1 You are entitled at any time to cancel part or some of the Service by giving Us 90 days written notice provided that:

20.1.1 Where You cancel part or some of the Service within the Minimum Period, You must pay Us the Cancellation Charges (as set out in clause 11.9) relating to the part of the Service cancelled. We will invoice you on or following such cancellation and such invoice shall be payable in accordance with clause 11.9; or

20.1.2 Where You wish to cancel part or some of the Service(s) following the expiry of the Minimum Period, You must give Us 90 days written notice, except where otherwise specified in the Special Terms, of Your intention to cancel and must pay all Charges payable under the Agreement in respect of the cancelled Service(s) no later than the expiry of this 90 day notice period.

20.2 We may immediately terminate the Agreement or, at Our option, suspend the Services at any time on written notice in the event that You breach any of the terms of the Agreement and We will give no refund of Charges.

20.3 This Agreement may be terminated by You on written notice if We commit any material breach of any term of the Agreement and (in the case of a breach capable of being remedied) shall have failed, within 60 working days after the receipt of a request in writing from You so to do, to remedy the breach (such request to contain a warning of Your intention to terminate).

20.4 Either Party immediately on giving written notice to the other if the other party has a receiver or administrator or administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other party enters into any voluntary arrangement with its creditors or becomes subject to an administration order or becomes insolvent according to the laws of the country in which the party is established.

21.0 Assignment and Sub-contracting

21.1 You shall not assign, novate, delegate or otherwise deal with all or any of Your rights or obligations under the Agreement without Our prior written consent, such consent not to be unreasonably withheld.

21.2 We may assign or novate all or any of Our rights or obligations under the Agreement to any member of Our Group. At Our request You shall enter into a novation agreement with Us and any such member of Our Group to whom Our rights and obligations are to be novated.

21.3 We may sub-contract Our obligations under the Agreement. Any such sub-contracting shall not release Us from Our obligations under the Agreement.

22.0 Matters Outside Reasonable Control

Neither Party shall be liable for any breach of its obligations under the Agreement (other than in relation to payment of sums due) where it is hindered, or delayed or prevented from carrying out its obligations by any cause outside its reasonable control, including: any act of God, inclement weather, failure or shortage of power supplies, natural disaster, flood, drought, lightning or fire, subsidence or earthquake, epidemic or pandemic strike, lock-out, trade dispute or labour disturbance, the act or omission of local or central government, highways authorities or other competent authorities, legal or regulatory restrictions, terrorism, war, military operations or riot, or difficulty, delay or failure in manufacture, production or supply by third parties of any service, Equipment or Purchased Equipment or any part of it (to the extent only that such difficulty, delay or failure resulted from causes outside that third party’s reasonable control). Where such cause continues for more than 3 calendar months either Party may without additional liability terminate the Agreement by giving written notice to the other Party.

23.0 General

23.1 The Agreement together with any documents referred to in the Agreement sets out the entire agreement and understanding between the parties and supersedes all prior agreements, understandings or arrangements (oral or written) in respect of the subject matter of the Agreement. No waiver or amendment of any provision of the Agreement shall be effective unless made in writing and signed by an authorised representative of both parties. Terms and conditions as set forth in the Cloud Solution Quotation Form which differ from, conflict with, or are not included in the Agreement, will not become part of the Agreement unless specifically accepted by Us in writing. We shall not be bound by any oral or written representation (except fraudulent misrepresentation) made by Our representatives unless specifically incorporated into the Agreement in writing.

23.2 Notwithstanding clause 23.1 We reserve the right to amend or vary the Agreement (other than in relation to Charges which are governed elsewhere in the Agreement) by giving You 30 days written notice. Within 14 days of such notification You may give Us not less than 14 days written notice to terminate the Agreement unless the amendment or variation is imposed by Law in which case You shall have no right to terminate. If You do not terminate in such period You are deemed to have accepted the amendment or variation. Cancellation Charges shall not be payable upon termination pursuant to this clause 23.2.

23.3 You acknowledge that You have entered into the Agreement in reliance only on the representations, warranties promises and terms contained in the Agreement and, save as expressly set out in the Agreement, We shall have no liability in respect of any other representation, warranty or promise made prior to the date of the Agreement unless it was made fraudulently.

23.4 This clause is blank.

23.5 To the extent that any provision of the Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of the Agreement, it shall not affect the enforceability of the remainder of the Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.

23.6 Unless expressly provided in the Agreement, no term of the Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

23.7 The Agreement shall be governed by and construed in accordance with English law. Each of the Parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England.

24.0 Dispute Resolution Procedure

24.1 If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it (‘Dispute’) then the Parties shall follow the procedure set out in this clause:

24.1.1either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (‘Dispute Notice’), together with relevant supporting documents. On service of the Dispute Notice, Our First Tier Representative and Your First Tier Representative shall attempt in good faith to resolve the Dispute;

24.1.2 if Our First Tier Representative and Your First Tier Representative are for any reason unable to resolve the Dispute within 14 days of service of the Dispute Notice, the Dispute shall be referred to Our Second Tier Representative and Your Second Tier Representative who shall attempt in good faith to resolve it; and

24.1.3 if Our Second Tier Representative and Your Second Tier Representative are for any reason unable to resolve the Dispute within 15 days of it being referred to them, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (‘ADR notice’) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR Solve. The mediation will start not later than 15 days after the date of the ADR notice.

24.2 No party may commence any court proceedings in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.

24.3 If the Dispute is not resolved within 20 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 20 days, or the mediation terminates before the expiration of the said period of 20 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 24.

25.0     Force Majeure

25.1 We will not be responsible for delays and/or defaults in Our performance due to causes beyond Our reasonable control, including, but without limiting the generality of the foregoing; acts of terrorism, wars, hostilities, revolutions, riots, civil commotion, national emergency, fire or explosion, flood, force of nature, embargoes, accidents, acts of God, or stability or availability of the Internet, the elements; telecommunication system failure; technology attacks, epidemic; quarantine; viruses; strike; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or request of any governmental authority; or any other cause beyond Our control, whether or not similar to the foregoing.

 

You have signed the Cloud Solution Quotation Form to indicate acceptance of the terms of the Agreement.