CODE OF CONDUCT ALIAS                LEGAL INFO              PRIVACY POLICY              FISCAL POLICY                 CONTACTS                 WORK WITH US

Copyright © 2017 Telecom Italia Sparkle S.p.A. VAT Number: 053 05181009
TIM Group

TERMS OF SERVICE

for the supply of services and goods

In these Terms and Conditions the following words shall have the following meanings:

“Authorised Representative”    

means a person authorised by the Customer to manage and administer additions and changes to the Customer's usage of the System;

“Billing Period”                           

has the meaning set out on the Order Form;

"Business Day"

means any day other than a Saturday, Sunday or bank holiday;

“Call Charges”

means the Supplier's charges for the Customer's usage of the System based on the duration of completed telecommunication calls placed to and from a User across, and using, the System (including any Guest Participation Usage) calculated based on the cent per minute rates as detailed in the Order Form and in the Global Rates Price List as amended from time to time;

“Change Effective Date”

means the date when any change to a User(s) of the System is made in accordance with clause 6.2;

“Course”

means any training course presented by the Supplier to Users of the System;

“Terms and Conditions”

means the terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Supplier;

"the Contract"               

means the Order Form, these Terms and Conditions and any Annexes and Schedules which form part of this agreement and the Supplier's acceptance of it;

"the Customer"

means the person who accepts a quotation or offer of the Supplier for the sale of the Goods and supply of the Services, or whose order for the Goods and Services is accepted by the Supplier;

“Delivery Date”

means the actual date on which Goods are delivered to the Customer at locations stated in an Order Form;

“Effective Date”

means the actual date on which the provision of any Service commenced or such date as the Supplier shall deem to be the date when the provision of the Service could have commenced were it not due, in the reasonable opinion of the Supplier, to a failure by the Customer of whatsoever nature;

"End User Licence Agreement"

means the licence set out at Schedule 1 to these Terms and Conditions;

“Fees”

means the Set-up Fees, Subscriptions and Call Charges;

“Global Rates Price List”

means the current price list as issued by the Supplier from time to time setting out the Supplier's Call Charges;

“Goods”

means the goods (including any instalment of the goods or any parts for them) which the Supplier is to supply in accordance with these Terms and Conditions;

“Guest”

means any person who is not a User whom the Customer invites to participate in any VIM;

“Guest Participation Usage”

means the duration in minutes of Guests invited by the Customer to participate in any VIMs during the relevant period;

“Initial Term”

a twelve month period as set out on the Order Form the first four weeks of which shall be a “Money back Period”, such period to commence on the Effective Date;

“month”

means a calendar month;

"Monthly Fee"

Shall have the same meaning and be interchangeable with Subscription;

“OEM”

means an original equipment manufacturer or a distributor acting on behalf of such legal entity from whom the Supplier purchases the Goods;

“OEM Warranty”

means the specific warranties, restrictions and limitations of an OEM that the Supplier is able to pass-on to a Customer;

"Order Form"

means the order form to which these Terms and Terms and Conditions are attached;

“Set-up Fee(s)”

means the charges payable to install, establish and test the Services detailed in an Order Form and agreed to be delivered by the Supplier to a Customer;

“Services”

means access to and use of the System by a Customer for the purposes of video and audio communications;

“Subscription(s)”

means a periodic charge payable by a Customer to secure access to the System and thereby delivery of the Services;

“System”

means the equipment, software, facilities, bandwidth, network connections and third party services used, operated and managed by the Supplier for the purposes of facilitating video and audio communications by Customers and Guests;

“Target Date”

means the date specified on the Order Form as being the parties reasonable estimate of when the relevant Goods or Services shall be delivered and/or commissioned;

“Terms and Conditions”

means the terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Supplier;

"Money back Period"

means a period of weeks at the start of the In Initial Term as detailed at clause 7;

“User”

means a person or Customer service function (e.g. Reception) identified in the Annex 2 to the Order Form by name and corresponding email address (as amended);

“VIM”

means a Video Internet Meeting established using the System and including person-to-person communications or connecting to a User’s personal meeting room as provided by the Services as part of a multi-party meeting;

“writing”

includes any communications effected by telex, facsimile transmission, electronic mail or any comparable means.

  1. General

Any reference in these Terms and Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

  1. The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.

  2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

  3. The Schedules form part of the Contract.

  4. Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.

  5. References to conditions and schedules are to the conditions and schedules of the Contract.

  6. In the event of any inconsistency the order of precedence of the documents making up this Contract shall be:

  • Order Form

  • Annexes to the Order Form;

  • Terms and Conditions

  • Schedules to the Terms and Conditions

2. Application of the Terms and Conditions

  1. The Supplier shall supply, and the Customer shall purchase, the Goods and/or Services in accordance with the details and specification contained in the attached Order Form.

  2. The Contract shall be to the exclusion of any other terms and conditions.

3. Basis of Sale and Service

  1. The Supplier's employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by the Supplier in writing.  In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

  2. No variation to these Terms and Conditions shall be binding unless agreed in writing by the parties.

  3. Sales literature, price lists and other documents issued by the Supplier in relation to the Goods and Services are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance.  An order placed by the Customer by completing the Order Form may not be withdrawn cancelled or altered prior to acceptance by the Supplier and no contract for the supply of the Goods and/or Services shall be binding on the Supplier unless the Supplier has counter-signed an Order Form and thereby accepted an order placed by the Customer.

  4. Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

4. The Goods

  1. The specification for the Goods shall be those set out in the Supplier's sales documentation unless varied expressly in the Order Form (if accepted by the Supplier). The Goods will only be supplied in the minimum units (or multiples) stated in the Supplier's price list. Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.

  2. The Supplier reserves the right to make any OEM changes in the specification of the Goods which are required to conform to any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Supplier's specification, which do not materially affect their quality or performance.

  3. No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.

5. The Services

  1. With effect from the Effective Date the Supplier shall, in consideration of the Fees being paid in accordance with the terms of Payment, provide the Services expressly identified in the Order Form or otherwise agreed under this Contract.

  2. The Supplier will use reasonable care and skill to perform and deliver the Services identified in the Order Form or otherwise agreed under this agreement.

  3. The Supplier shall use all reasonable endeavours to complete its obligations under the Order Form, but time will not be of the essence in the performance of these obligations.

 

6. Applicability of the Services

  1. The Users identified in the Order Form shall be given access to use the System as of the Effective Date.

  2. Subject to clauses 6.3 and 16, where the Customer wishes to add, delete or update the access or details of Users to whom the Services are to be made available it shall notify the Supplier at least two (2) Business Days in advance of the Change Effective Date.

  3. Subject to clause 16, the Customer must give three (3) clear calendar months’ notice to the Supplier such notice to expire after the expiry of the Initial Term of an intention to delete a specific User's access to the System;

  4. Notifications made in accordance with clause 6.2 and clause 6.3 shall be in the form set out at Schedule 2 and shall be emailed to sparklehd@joinconferencing.com .

  5. The Customer may request that Guests specified by it are given access to the System for the purposes of participation in VIMs. Any Call Charges incurred in relation to Guest Participation Usage shall be charged to the Customer.

  6. Any person may access the System for the purposes of placing or receiving voice only calls to or from Users on appropriately enable networks. Voice-only calls shall be charged to the Customer on the basis of duration of call irrespective of whether the User is receiving or placing the call.

7. Money back period

  1. A period at the start of the Initial Term that will be specified in the Order Form and shall be no longer than four weeks, during which:

    1. The number of Users to be set-up and to test the Services shall be agreed between the Customer and Supplier and shall be such a number as is reasonable recognising the potential minimum deployment proposed by the Customer;

    2. Support for Service familiarisation will be provided by the Supplier;

    3. Users will have full access to all Service features including the ability to invite Guests;

    4. The Customer has the right to cancel the Contract at any time during the “Money back Period”;

    5. Any third party external charges for dial-out off-net voice-only calls and Goods supplied shall be invoiced to the Customer.

    6. The Customer can declare the “Money back Period” over at any time to place orders for new Users and to take full advantage of the Services;

  2. Fair Use Policy - The Supplier reserves the right to cancel use of the Services at any time during the “Money back Period” if at the Suppliers sole discretion use is deemed excessive or beyond what could be deemed fair and reasonable use.

8. Training

  1. If specified in the Order Form, the Supplier will enable access to the Course for such number of Users as the Customer shall specify;

  2. At the reasonable request of the Customer and subject to acceptance by the Supplier, the Course will be modified to cover any Customer specific user situations. Any such modification may be subject to a separate charge to be agreed between the Parties and include within the One-off Fees on the Order Form;

  3. The Customer shall notify the Supplier with details of the Users to undertake the Course. The Customer’s representative will liaise directly with the User(s) to schedule participation in a Course at the earliest possible opportunity.  At least forty-eight (48) hours in advance of the date scheduled for presentation of the Course the Supplier shall email set-up and installation instructions to each such User;

  4. A ‘User Manual’ and ‘Quick Reference Guide’ will be sent to each participant following completion of the Course;

  5. The Supplier reserves the right to limit the number of participants in a Course;

  6. The Customer undertakes to procure maximum cooperation from the Users and to use its reasonable endeavours to procure that User training is completed as quickly as possible after the Effective Date.

  7. The Customer shall give the Supplier all reasonable support and assistance to facilitate the smooth organisation and presentation of any Course.

9. Price

  1. The price of the Goods and Services shall be the price set out in the Order Form or such other price as may be agreed in writing by the Supplier and the Customer.

  2. The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and/or Services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.

  3. Call Charges are subject to change at the discretion of the Supplier by giving a minimum of thirty (30) days notice of the changes to the Customer. Changes to Call Charges may take effect as from the first day of the month following that in which notice is given.

  4. Call Charges shall be applied to the Customer in accordance with the Call Profiles set out in Schedule 4.

  5. Except as otherwise stated under the terms of the Order Form, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are exclusive of the Supplier's charges for packaging and transport.

  6. The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and/or Services, which the Customer shall be additionally liable to pay to the Supplier.

10. Duration

  1. Service provision shall commence on the Effective Date and automatically continue after the expiry of the Initial Term on a month-to-month or quarter-to-quarter basis in accordance with the Subscription billing period set out in the Order Form and unless notice to cancel has been served in accordance with this Contract.

11. Billing

  1. Goods will be invoiced immediately a consignment has been collected by or delivered to a courier, shipping agent or postal delivery service.

  2. The Fees shall be invoiced as follows

    1. Set-up Fees shall be billable immediately following acceptance of an Order Form by the Supplier and shall be non-refundable in the event of the deletion of any User;

    2. Subscriptions for Services shall commence and will be billed in advance on a pro-rata basis for the period from the Effective Date to the next calendar quarter end date or year-end date as appropriate in accordance with the Billing Period;

    3. thereafter, Subscriptions will be invoiced at the end of each calendar quarter or the end of each calendar year in advance;

    4. Call Charges will be invoiced monthly in arrears supported by an analysis of the communications made during the period covered by the invoice;

  3. Where possible the Supplier shall endeavour to invoice for Course fees upon completion of the last scheduled Course included in any single Order Form but, for the avoidance of any doubt, Supplier shall be entitled to issue an invoice in relation to any Course which has been included in an accepted Order Form at any time provided that:

    1. the scheduled time for the presentation of the Course has expired; or

    2. the Supplier is of the reasonable opinion that the Customer is in breach of clause 8.7.

  4. it is a Customer’s responsibility to connect ancillary equipment and ensure operating functionality; failure by a Customer to so do will not be a reason to delay invoicing for an individual service or a reason for a Customer to delay processing an invoice for settlement;

12. Payment

  1. All payments required to be made pursuant to the Contract by either party shall be made within thirty (30) days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.

  2. The time for payment shall be of the essence of these terms and conditions.  If the Customer fails to make any payment on the due date in respect of the price or any other sum due under these Terms and Conditions then the Supplier shall, without prejudice to any right which the Supplier may have pursuant to any statutory provision in force from time to time, have the right to charge the Customer interest on a daily basis at an annual rate equal to the aggregate of five (5) per cent above the base rate of HSBC Bank plc from time to time on any sum due and not paid on the due date.  Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.

  3. Payments shall be made to the Supplier by electronic credit transfer the agreed method to be stated in the Order Form and only one method shall apply to a Customer account. The Supplier's banking details are included at Schedule 3.

13. Delivery and Performance

  1. Delivery of the Goods shall be made by the Supplier delivering the Goods to the Delivery Address stated in the Order Form.

  2. The Target Dates are approximate only and time for delivery shall not be of the essence unless agreed by the Supplier in writing.

  3. The Goods may be delivered by the Supplier in advance of the Target Date upon giving reasonable notice to the Customer.

  4. If the Customer fails to take delivery of the Goods or any part of them and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered, the Supplier shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Goods. Notwithstanding the provision of clause 18.1 of these Terms and Conditions risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from such failure.

14. Non-Delivery of Goods and Services

  1. If the Supplier fails to deliver all, or any part of, the Goods and/or Services on the date agreed by the parties (other than for reasons outside the Supplier's reasonable control or the Customer's or its carrier's fault):-

  • if the Supplier delivers the Goods and Services at any time thereafter, then the Supplier shall have no liability in respect of such late delivery;

  • if the Customer gives written notice to the Supplier within ten (10) Business Days after the agreed date and the Supplier fails to deliver the Goods and/or Services within ten (10) Business Days after receiving such notice, the Customer may cancel the order and the Supplier's liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods and/or services to those not delivered over the price of the Goods and/or Services not delivered, subject to an overall maximum of € 1.000,00 in total.

15. Confidentiality

  1. Each party undertakes that it shall not at any time during this Contract and for a period of two (2) years after termination disclose to any person any confidential information disclosed to it by the other party concerning the business or affairs of the other party or of any member of its group, including but not limited to information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers ("Confidential Information"), except as permitted by clause 15.2.

  2. Each party may disclose the other party’s Confidential Information:

    1. to its employees, officers, agents, consultants or sub-contractors ("Representatives") who need to know such information for the purposes of carrying out the party’s obligations under this agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 15 as though they were a party to these Terms and Conditions. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and

    2. as may be required by law, court order or any governmental or regulatory authority.

  3. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these Terms and Conditions are granted to the other party or to be implied from these Terms and Conditions. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.

16. Termination

  1. Termination during the “Money back Period”

    1. The Customer shall have the right to terminate the Contract at any time during the “Money back Period” if

      1. During the period the customer faced proven failures motivated by technical reasons, analysed and unsolved by Sparkle technical engineers;

      2. During the period the Customers complains in writing for either missing or inactive or different features and/or functionalities from the ones declared in the official Sparkle offers and documents. Such termination must be in writing, delivered by email and shall become effective 24-hours after receipt by the Supplier.

    2. ​Termination during the Initial Term:

      1. The Customer shall not be entitled to terminate the Contract during the Initial Term.

      2. At any time during the Initial Term the Customer shall be entitled to notify the Supplier in writing that it wishes to terminate access to the Service for such Users as are specified in the relevant notice provided that:

a)   any such termination shall only be effective from the date falling one month after the date of the notice; and

b)   for each User so terminated, the Customer shall be liable to pay the Supplier €25,00 per complete calendar month of the Initial Term remaining after the expiry of the notice.

3. Termination after the expiry of the Initial Term:

After the expiry of the Initial Term, the Customer may terminate the Contract or any individual User on giving not less than three (3) months' prior written notice to the Supplier. No charge shall apply to terminations pursuant to this clause 16.3 and no further charges shall be levied in relation to Users terminated in this way.

4. Termination of free trial period

The free trial period terminate after 15 days from the account opening

17. Authorised Persons

  1. The Customer shall appoint at least one Authorised Representatives and such persons shall be specified in the Order Form.

  2. An Authorised Representative is appointed to administer the Service on behalf of the Customer and the Supplier is entitled to accept instructions for User additions, changes and deletions from the Authorised Representative without query.

  3. A change of Authorised Representative must be notified to the Supplier by the Customer Representative and no change shall take effect until such notification has been received by the Supplier and so acknowledged by email;

  4. The Supplier shall only accept instructions given in the correct format and containing the Authorised Representative's then current password (as issued by the Supplier and which is specific and personal to the Authorised Representative).

18. Risk and Retention of Title

  1. Risk of damage to or loss of the Goods shall pass to the Customer at:

    1. in the case of Goods to be delivered otherwise than at the Supplier's premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods; or

    2. in the case of goods being installed by the Supplier, the time that the Supplier notifies the Customer that the installation is complete.

  2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods.

  3. Condition 18.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and any other Goods or Services supplied by the Supplier and the Customer has repaid all moneys owed to the Supplier, regardless of how such indebtedness arose.

  4. Until payment has been made to the Supplier in accordance with these Terms and Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for the Supplier and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Supplier and shall insure the Goods against all reasonable risks.

  5. In the event that the Customer sells or transfers the Goods to a third party before legal and beneficial title has passed to him under these Terms and Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Supplier) shall be held by the Customer on behalf of the Supplier. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on the Supplier’s behalf are identified as such.

  6. The Supplier may, in accordance with the provisions of the Companies Act 2006, register any charge created by these Terms and Conditions.

  7. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.

  8. The Supplier reserves the right to repossess any Goods in which the Supplier retains title without notice. The Customer irrevocably authorises the Supplier to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which the Supplier retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-clause 18.4.

  9. The Customer’s right to possession of the Goods in which the Supplier maintains legal and beneficial title shall terminate if;

    1. The Customer commits or permits any material breach of his obligations under these Terms and Conditions;

    2. The Customer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with his creditors;

    3. The Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;

    4. The Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.

19. Assignment

  1. The Supplier may assign the Contract or any part of it to any person, firm or company.

  2. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.

20. Defective Goods

  1. If on delivery any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery "condition and contents unknown" and the Customer gives written notice of such defect to the Supplier within three (3) Business Days of such delivery, the Supplier shall at its option:

    1. replace the defective Goods within fourteen (14) days of receiving the Customer's notice; or

    2. refund to the Customer the price for the goods which are defective; but the Supplier shall have no further liability to the Customer in respect thereof and the Customer may not reject the Goods if delivery is not refused or notice give by the Customer as aforesaid.

  2. No Goods may be returned to the Supplier without the prior agreement in writing of the Supplier.  Subject thereto any Goods returned which the Supplier is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Supplier's sole discretion the Supplier shall refund or credit to the Customer the price of such defective Goods but the Supplier shall have no further liability to the Customer.

  3. The Supplier shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Supplier's or OEM’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Supplier's approval, or any other act or omission on the part of the Customer, its employees or agents or any third party.

  4. Goods, other than defective Goods returned under clauses 20.1 or 20.2, returned by the Customer and accepted by the Supplier may be credited to the Customer at the Supplier's sole discretion and without any obligation on the part of the Supplier.

  5. Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

  6. The Customer shall be responsible to ensure that, except to the extent that instructions as to the use of the Goods are contained in the packaging or labelling of the Goods, any use of the Goods by the Customer is in compliance with all applicable statutory handling of the Goods by the Customer is carried out in accordance with directions given by the Supplier, or OEM, or any competent governmental or regulatory authority and the Customer will indemnify the Supplier against any liability loss or damage which the Supplier might suffer as a result of the Customer's failure to comply with this condition.

21. Customer's Default

  1. If the Customer fails to make any payment on the due date then , without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:-

    1. cancel the order or suspend any further deliveries of Goods and/or Services to the Customer; and

    2. appropriate any payment made by the Customer to such of the Goods and/or Services (or the goods supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and

  2. This condition applies if:-

    1. the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or

    2. the Customer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or

    3. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or

    4. the Customer ceases, or threatens to cease, to carry on business; or

    5. the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

  3. If Condition 21.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries or Service provision under the Contract without any liability to the Customer, and if the Goods and or Services has been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

  4. The Customer shall ensure that it does not, and shall procure that Users do not, use the System in any way which would infringe any intellectual property rights in the System or which would be in violation of any agreement, law, rule or regulation affecting the manner in which the Customer or User is entitled to utilise the System.

 

22. Survival

  1. Upon termination of this Contract the obligations under the End User Licence Agreement shall survive unless terminated in accordance with that agreement.

23. Liability

  1. Except in respect of death or personal injury caused by the Supplier’s negligence, the Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) which arise out of or in connection with the supply of the Goods and/or Services.

  2. The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by and or  arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agent or employees.

  3. Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them.  All obligations on the part of such a Customer shall be joint and several obligations of such persons.

  4. The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier's obligations if the delay or failure was due to any cause beyond the Supplier's reasonable control.

24. Communications

  1. All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail:

    1. (in the case of communications to the Supplier) to its registered office or such changed address as shall be notified to the Customer by the Supplier from time to time; or

    2. (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Supplier by the Customer.

  2. Communications shall be deemed to have been received:

    1. if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or

    2. if delivered by hand, on the day of delivery; or

    3. if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.

  3. Communications addressed to the Supplier shall be marked for the attention of the Chief Finance Officer.

 

25. Conference Suite Video End User Licence Agreement

  1. The Supplier uses technologies and software developed and owned by Vidyo, Inc. whose End User Licence Agreement is available on the Supplier's website www.sparkleconferencing.com and which has to be accepted by each User when setting-up the Service is hereby incorporated into this Contract.

  2. The Customer shall procure that each User shall comply with the terms of the End User Licence Agreement and shall indemnify the Supplier against all losses, costs, damages and penalties associated with any failure of a User to so comply.

26. Compliance with Government requests

  1. The Customer shall and shall procure that Users shall, comply with all government requests relating to the subject of this Contract directed either to the User or to the Supplier.

27. Force Majeure

  1. In the event that either party is prevented from fulfilling its obligations under this Contract by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to clause 27.2) the party shall not be deemed to be in breach of its obligations under these Terms and Conditions. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.

  2. Condition 27.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.

  3. If and when the period of such incapacity exceeds six (6) months then these Terms and Conditions shall automatically terminate unless the parties first agree otherwise in writing.

28. Waiver

  1. No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

29. Severance

  1. If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.

30. Third Party Rights

  1. A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.

31. Governing Law and Jurisdiction

  1. These terms and conditions shall be governed by the laws of Italy and Wales and the parties agree to submit to the exclusive jurisdiction of Rome court.