1.1. Unless the context otherwise requires, the following expressions have the following meanings:
Acceptable Use Policies: the minimum acceptable levels of accessing the network, internet or service
Business Day: any day between Monday and Friday but excluding any bank holiday or a day when the clearing banks in London are closed.
Charges: the charges payable by the Customer for the supply of the Services by the Company, as set out in the quotation and agreement
Conditions: these terms and condition
Company: CSG Computer Services Ltd
Customer: [company name as outlined in proposal]
Contract: the contract between the Customer and the Company for the supply of the Services in accordance with the proposal agreement, these Conditions and any Schedules.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Data: the data inputted by the Customer or the Company on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Company.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Deliverables: all documents, products and materials developed by the Company or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Key Deliverables set out in the Contract Details.
Initial Term: the initial term of this agreement commencing on the inception of the agreement and continuing for the term specified on the proposal agreement
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Password: the password issued by the Company to the Customer on or before the Services Start Date which will grant the Customer with access to the Services.
Profligate: reckless, extravagant or wasteful and this includes but is not limited to the use of any applications which transmit line video, live audio or make similar traffic demands across the CSG Network.
Proposal Agreement: proposal and quotation accepted by the customer
Services: the services, including without limitation any Deliverables, to be provided by the Company pursuant to the proposal agreement
Services Start Date: the day on which the Company is to start provision of the Services, as set out in the proposal agreement
Company IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9. A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of this agreement.
2. Commencement and term
2.1. This agreement shall, unless otherwise terminated as provided in clause 8, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this agreement shall be automatically renewed for the same period as the initial term, unless:
(a) either party notifies the other party of termination, in writing, at least 12 weeks before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
3. Supply of services
3.1. The Company shall supply the Services to the Customer from the Services Start Date in accordance with the proposal agreement.
3.2. In supplying the Proposal Agreement, the Company shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the service description set out in proposal agreement;
(c) comply with all applicable laws, statute and regulations from time to time in force; provided that the Company shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract; and
(d) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to the Company, provided that the Company shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(e) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Company may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
4. Customer’s obligations
4.1. The Customer shall:
(a) co-operate with the Company in all matters relating to the Services;
(b) provide, for the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by the Company or any of them;
(c) provide, in a timely manner, such information as the Company may require, and ensure that it is accurate and complete in all material respects; and
(d) ensure that the Password is kept private and confidential at all times;
(e) immediately notify the Company if the Password becomes known to a third party who has not been authorised to have access to the Password by wither the Customer or the Company;
(f) comply with any Acceptable Use Policies when using the CSG Network to access other networks outside of the United Kingdom;
(g) comply with any published Internet Protocols and Standards
(h) not use the CSG Network or permit the CSG Network to be used in a Profligate way;
(i) not use the IP Multicast without the prior written approval from and supervision and co-ordination of the Company;
(j) Not use the Service or permit the Service to be used:
(i) in a way that does not comply with the terms of any legislation or any licence applicable to the Customer or that is in any way unlawful or fraudulent or has any unlawful or fraudulent purpose or effect;
(ii) in connection with the carrying out of any fraud or criminal offence;
(iii) to send, knowingly receive, upload, download, use or re-use any material which contains a virus, is abusive, defamatory, obscene, pornographic or menacing, or in breach of any copyright, confidence, privacy or any other rights;
(iv) to send or procure the sending of any unsolicited advertising or promotional material other than in the case of the Customer to its own customers;
(v) in a way that does not comply with any instructions of the Company;
(vi) in a way that in the reasonable opinion of the Company could materially affect the quality of any service, including the CSG Network, provided by the Company.
4.2. If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Company shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses the Company sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Intellectual property
5.1. The Company and its licensors shall retain ownership of all Company IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
5.2. The Company grants the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy the Company IPRs for the purpose of receiving and using the Services and the Deliverables in the Customer’s business during the term of the Contract, which licence shall end on the termination of the Contract.
5.3. The Customer grants the Company a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
5.4. The Customer shall indemnify the Company in full against any sums awarded by a court against the Company arising of or in connection with any claim brought against the Company for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Company.
6. Charges and payment
6.1. In consideration for the provision of the Services, the Customer shall pay the Company the Charges in accordance with this clause 6.
6.2. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Company at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3. The Company shall submit invoices for the Charges plus VAT if applicable to the Customer monthly in advance, on or after the first day of each month.
6.4. The Customer shall pay each invoice due and submitted to it by the Company, within 30 days of receipt, to a bank account nominated in writing by the Company.
6.5. If the Customer fails to make any payment due to the Company under the Contract by the due date for payment, then, without limiting the Company’s remedies under clause 8 (Termination);
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
(b) the Company may suspend all Services until payment has been made in full.
6.6. All amounts due under the Contract from the Customer to the Company shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Limitation of liability
7.1. Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Services, or any actions taken by the Company at the Customer’s direction;
7.2. Nothing in this agreement excludes the liability of the Company for death or personal injury caused by the Company’s negligence.
7.3. Subject to clause 7.1 and 7.2:
(a) the Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to one hundred percentage (100%) of the annual rental of the affected singular service product.
8.1. Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2. Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
8.3. On termination of the Contract for whatever reason:
(a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
(c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.1. The Customer shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, provided that:
(a) the Customer is given notice of any such claim;
(b) the Company provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
9.2. The Company shall defend the Customer, its officers, directors and employees against any claim that the Services infringe any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Company is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company’s expense; and
(c) the Company is given sole authority to defend or settle the claim.
9.3. In the defence or settlement of any claim, the Company may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on  Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
9.4. In no event shall the Company, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than the Company; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Company; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Company or any appropriate authority.
10. Proprietary Rights
10.1. The Customer acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Licensed Programs.
10.2. The Company confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
(a) Each party undertakes that it shall not [at any time OR at any time during the Contract, and for a period of [five] years after termination of the Contract,] disclose to any person any confidential information concerning the business, affairs, customers, clients or business of the other party [or of any member of the group to which the other party belongs], except as permitted by clause 9. [For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.]
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9 ; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12. Force Majeure
The Company shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
13. Customer Data?
13.1. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
13.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
13.3. The parties acknowledge that:
(a) if the Company processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and the Company is the processor for the purposes of the Data Protection Legislation; and
(b) the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and the Company’s other obligations under this agreement.
13.4. Without prejudice to the generality of clause 13.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Company for the duration and purposes of this agreement so that the Company may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
13.5. Without prejudice to the generality of clause 13.2 , the Company shall, in relation to any personal data processed in connection with the performance by the Company of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Company is relying on Applicable Laws as the basis for processing personal data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Customer;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or the Company has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 13 and immediately inform the Company if an instruction infringes the Data Protection Legislation.
14. Expert Determination
14.1. Any technical dispute, shall be referred for final settlement to an expert agreed by the parties or, if not agreed within 14 days of either party’s written request to the other, as determined, at the written request of either party, by the President of the British Computer Society. Such expert shall be deemed to act as an expert and not as an arbitrator. The expert’s decision shall, in the absence of manifest error, be final and binding on the parties.
14.2. The parties are entitled to make submissions to the expert and will provide (or procure that others provide) the expert with such assistance and documents as the expert reasonably requires for the purpose of reaching a decision.
14.3. Each party shall bear its own costs in relation to the reference to the expert. The expert’s fees and any costs properly incurred by him in arriving at his determination (including any fees and costs of any advisers appointed by the expert) shall be borne by the parties equally or in such other proportions as the expert shall direct.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18. Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
19.2. If any provision or part-provision of this agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. Entire Agreement
20.1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
20.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
21.1. The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21.2. The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22. No Partnership or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. Third Party Rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
24.1. Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.
24.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
25. Governing Law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated within acceptance of it.