Terms & Conditions

BY SIGNING AN ORDER REFERENCING THESE TERMS AND CONDITIONS OR USING ANY SERVICES PROVIDED BY HARWOOD BRITTAIN TELECOM LIMITED, THE CUSTOMER ACCEPTS ALL OF THE FOLLOWING TERMS.

These terms and conditions together with an Order (“the agreement”) is made by and between Harwood Brittain Telecom Limited, registered company number 15398666, having its registered office at 5 Sleepy Hollow Business Park, Ampfield Hill, Ampfield, Romsey, Hampshire, SO51 9AW (“HB Tel”) and the Customer listed in the Order (as defined below). This agreement will govern the use and provision of the Telecoms Services (as defined below) purchased by the Customer as described in the Order.  Any terms not defined herein have the meaning given to them in the applicable Order. HB Tel and the Customer may each be referred to as a “Party” and collectively as the “Parties.”  The Parties enter into this agreement as of the effective date set out in the Order (the “Effective Date”).

DEFINITIONS

“Business Contact Information” means the business contact information of an employee or contractor of HB Tel or the Customer, which may include, name, business title, business phone number, business email address, and business office address.

“Call Charge” means HB Tel’s charges for calls made using the System (including reverse charge calls) as specified in the Order or otherwise notified by HB Tel from time to time.

“CLI” means Calling Line Identity or Calling Line Identification, being data generated by a network which relates to the telecommunications service of the originating call.

“Confidential Information” means all non-public information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether disclosed orally or in writing, that is designated confidential or should be reasonably known by the Recipient to be confidential given the nature of the information or the circumstances of the disclosure.  Confidential Information does not include any information that: (i) was rightfully known to Recipient prior to disclosure by Discloser without breach of any obligation owed to Discloser; (ii) is or becomes public knowledge without breach of any obligation owed to Discloser; (iii) is lawfully received from a third-party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.

“Connection Charge” means the non-refundable charge payable by the Customer for installation and connection to the System as specified in the Order or otherwise notified by HB Tel.

“Customer Data” means all data and information submitted by or on behalf of the Customer into the Customer’s business systems or created by the Customer during the delivery of the Telecoms Services, and any modifications made thereto in the course of the performance of the Telecoms Services by HB Tel.

“Deliverables” means any hardware, equipment, or tangible or non-tangible work product(s) provided by HB Tel in connection with the provision of the Telecoms Services and which are specified in the Order.

“Documentation” means Third Party current technical documentation, specifications, and user manuals for the Telecoms Services where such documentation is made available by Third Party.

“Fees” means the fees payable by the Customer for the Telecoms Services, as set out in an Order.

“HB Tel Third-Party Applications” means any applications, products, services, or content that are used in connection with the Telecoms Services, which are provided by HB Tel from a third-party and which are licensed or made available: (i) as a cloud-based hosted solution; or (ii) as licensed software products installed onto the Customer’s servers or other hardware where the Customer uses a legacy system.

“Hosted & HB Connect” means voice over Internet (VoIP) services where the telephone equipment and services are hosted by HB Tel or third party.

“Installation” means the provision of access network, hardware and router installed by an accredited partner; HB Tel are not responsible for any third-party equipment such as POE switches.

“Installation Address” means the address agreed in writing by HB Tel with the Customer for installation of the Deliverables or, as the case may be, any other premises in which for the time being the Deliverables are installed with the consent of HB Tel by the direction of the Customer (including in each case any pipes, wires, cables, conduits or other conducting media serving the Installation Address) and which the Customer warrants as a continuing warranty in each case with full title guarantee may be accessed by HB Tel its agents and contractors with or without plant for purposes of carrying out or completing the Installation, maintenance or removal of the Deliverables at any time without infringing the rights of any third-party;

“Telecoms Services” means the professional managed telecoms services delivered by or on behalf of HB Tel to the Customer as described in an Order, including the supply of Hardware, Network and Telephony Services (Teams Direct Routing, VoiceStream and SIP), the Deliverables, any implementation or integration services, training, support and maintenance and / or consulting services under the Agreement including termination to the Public Switched Telephone Network;

“Network Services” means all access network services delivered to the Installation Address by HB Tel including all inbound and outbound call traffic or otherwise those services provided or arranged by HB Tel from time to time to facilitate the provision of the Telecoms Services to the Installation Address;

“Order” means the ordering document executed by both Parties or an accepted quotation which references or includes this agreement and specifies the Telecoms Services to be made available and the Fees to be paid.

“Ofcom” means the Office of Communications or any similar office that may be appointed in addition or in substitution.

“Updates” means updates, releases, patches, and fixes of software that are made generally available by HB Tel at no additional charge; provided that Updates do not include add-ons, modules, or other products made available by HB Tel that are ancillary to or separate from any HB Tel Third Party Applications.

“System” means the network that HB Tel uses to provide the Telecoms Service.

“Term” means the period of the Initial Term and any Renewal Term collectively until the agreement expires or is otherwise terminated.

“Use Limits” means any numerical limits on units of measure referenced in the Order, or in any Documentation, or prescribed as part of the HB Tel Third Party Applications, including the number of authorised Users or certain volumes of traffic (operations), or storage.

“User” means any Customer employee or contractor granted access to any part of the Telecoms Services by the Customer.

2. PROVISIONING OF SERVICE

2.1 The Customer hereby agrees to the termination of its existing contract for equivalent services with its existing communications service provider. The Customer shall provide to HB Tel such information as is reasonably requested by HB Tel, including any relevant account and calling line identification numbers that may be required by BT or any other communications providers; and also access to carry out their obligations for HB Tel, subcontractor and anyone acting on either of their behalf, to the Customer’s premises if so required. The Customer acknowledges that HB Tel cannot process the provision of the Telecoms Service until such information and access is provided.

2.2 The Customer acknowledges and agrees that any dates given by HB Tel for the provision of the Telecoms Service, Deliverables or maintenance are estimates only. Unless expressly agreed otherwise in writing with the Customer, HB Tel shall not be liable to the Customer for any failure to meet such dates, and time shall not be of the essence for these purposes.

3. USE OF SERVICE

3.1 Provision and Access. Subject to this agreement, HB Tel grants the Customer a non-exclusive, non-transferable, and non-sublicensable right for Users to use the HB Tel Third Party Applications and receive all or any components comprising the Telecoms Services. The rights granted are solely for the Customer’s internal business operations, for use only in accordance with the Documentation and any restrictions set forth on the Order (including any Use Limits). The Customer shall be fully responsible for each User’s compliance with this agreement.

3.2 Customer Obligations. The Customer will require its Users to keep Log-Ins and password information strictly confidential and not share such information with any unauthorised person. HB Tech will have no liability for actions taken using the Customer’s Log-Ins and passwords, including any unauthorised use or access caused by a breach of the foregoing obligation leading to misuse or misappropriation of such Log-Ins and passwords. In addition, the Customer shall be responsible for any expenses, costs, and losses incurred as a result of a failure of the Customer and/or its Users to keep Log-Ins and password information secure from misuse. The Customer will also be responsible for restricting access by any of its Users who are no longer authorised to access any HB Tech Third Party Applications or the Managed Services. In the event that the Customer becomes aware of any Log-Ins and passwords being shared or compromised, the Customer is obliged to contact HB Tech immediately to enable any remedial action taken by HB Tech, and a failure to contact HB Tech will be a material breach of this agreement. 

3.3 Technical Environment. The Customer will acquire, install and maintain throughout the Term hardware, software, Internet access and systems meeting HB Tel’s minimum specifications. The Customer is responsible for obtaining and maintaining all hardware, software and communications equipment which HB Tel recommends and advises is required to:
(a) optimise the use of the Telecoms Services;
(b) secure the Customer Data; and
(c) maintain the integrity and reliability of all software applications being managed under the Telecoms Services, including any HB Tel Third Party Applications;
and HB Tel shall not be liable for any failure by the Customer to: (i) implement any HB Tel advice to enable the maximum functionality to be achieved by any software under the Telecoms Services; or (ii) introduce measures recommended by HB Tel to secure the Customer’s systems and Customer Data.

3.4 Third-Party Applications. The Customer is solely responsible for obtaining and maintaining access to any third-party applications which are not provided by HB Tel. The Telecoms Service is available only if the Customer has a valid contract for the use of a suitable internet connection. If such contract does not exist, the Customer must arrange with the Supplier to have an appropriate service installed. HB Tel is not liable to the Customer and shall not need to provide the Customer with any refund, credit, or other compensation for any errors, delays, downtime, or nonperformance of the Telecoms Services caused by the unavailability of any HB Tel Third-Party Application, or if Customer terminates its subscription or license to the HB Tel Third-Party Application or requests that the HB Tel Third-Party Application is terminated by HB Tel on the Customer’s behalf.

3.5 Authorisation in respect of operators. The Customer hereby irrevocably authorises HB Tel to act on the Customer’s behalf in all dealings with the operator of any telecommunications network or system in connection with any matter that enables HB Tel to provide or to continue to provide the Customer with the Telcoms Service (including without limitation giving all nominations notices and authorisations to any telecommunications provider to facilitate the Telecoms Service via that provider).

3.6 Emergency Calls. The Telecoms Service supports 999/112 public emergency call services and such calls will be routed to the national emergency call handling agents. However, these services do not operate in the same way as PSTN fixed-line 999/112 public emergency call services and connection to such services may not be possible in the event of a service outage caused by loss of connectivity to the internet for whatever reason. In such circumstances, you should use a separate line to make the emergency call.

3.7 General Restrictions. The Customer will not, nor allow any others to: (a) sell, let, mortgage, charge, pledge, dispose of, rent, lease, license, distribute, provide direct access to, sublicense, or otherwise make available the Telecoms Services or any HB Tel Third Party Application (or any Deliverables, if applicable) to a third-party; (b) do anything or permit anyone else to do anything that would prejudice the Supplier’s Equipment or the System in any way; (c) introduce into any HB Tel Third Party Application any virus, worm, “back door,” Trojan Horse, or similar harmful code; or (d) use the Telecoms Services or any HB Tel Third Party Application to process or send spam or engage in other unlawful, fraudulent, improper or immoral communications (including without limitation communications which are, or are intended to be, a hoax call to emergency services, or which are defamatory, offensive, abusive, indecent, obscene or menacing or to violate or infringe any rights of, or to cause annoyance, inconvenience or anxiety to, or to interfere with or damage, any other person), or to process infringing or otherwise unlawful or unauthorised Customer Data; or (e) in such a way that may impair, interfere with, damage or affect the operation or quality of the Telecoms Services or the relevant Deliverable;

3.8The Customer agrees to use the Telecoms Services in accordance with: (i) any instructions that HB Tel gives the Customer from time-to-time; and (ii) any laws, rules, regulations and any codes of practice directly applicable to the Customer and its Customer Data (including, without limitation, including the Telecommunications Act 1984 the Communications Act 2003 the Data Protection Act 1998 and applicable Health and Safety legislation, regulations, codes of practice, licenses, guidance and other requirements of any relevant government or governmental agency). The use of computing equipment and/or computer software owned and/or controlled by HB Tel (including computer networks and systems accessed via the network) is permitted for bona fide purposes and is subject to authorisation. Unauthorised or improper use of these facilities is a breach of this Agreement and may give rise to withdrawal of the facilities and/or proceedings under the Computer Misuse Act 1990. All rights in the Telecoms Services not expressly granted herein are reserved.

3.9 Equipment. The Customer shall: (i) ensure that any equipment (excluding HB Tel’s Equipment) that it uses in connection with the Telecoms Service meets any legal or regulatory requirements and is approved for connection to the System. If not, the Customer must immediately disconnect it or allow the HB Tel to do so at the Customer’s expense.

3.10 The Customer will allow HB Tel to inspect, test, modify, change, add to, replace or remove any HB Tel Equipment, either remotely or via a designated maintainer. At the end of the term of the Agreement, the Customer will allow HB Tel access at all times to collect any of the HB Tel Equipment in the Customer’s possession.

3.11 The Customer’s equipment to be used with the Service shall be connected by means of Connection Points and ancillary wiring. If the Customer wishes a Connection Point to be moved to another place within the Site, HB Tel may agree, subject to payment of HB Tel’s applicable charges. The Customer shall, at HB Tel’s request, arrange for the Customer’s equipment to be reprogrammed by its designated maintainer in accordance with instructions provided by HB Tel, to enable any indirect or other access. HB Tel will have no responsibility in respect of such reprogramming. 3.12 Customer Obligations.

3.12 Risk in (but not title to) the Deliverables comprised in the Telecoms Service shall pass on delivery and the Customer will be responsible for the security, safe keeping and insurance of all Deliverables from the time each item is delivered to the Installation Address. The Customer is advised to notify its insurers accordingly and agrees that the Customer will insure and keep insured the Deliverables in the full reinstatement value and provide reasonable evidence thereof on demand and procure that the interest of the owner of the Deliverables is noted on the relevant policy.

3.13 Phone numbers. HB Tel allocates telephone numbers to the Customer, the Customer will not (subject to any statutory or authorisation provisions relating to number portability) acquire any rights whatsoever in such telephone numbers. The Customer will not apply for registration of the telephone numbers as part of a trademark. The Customer shall comply with any requirements notified by HB Tel relating to number portability.

3.14 The Customer acknowledges that HB Tel may make alterations to the service (including, without limitation, conversions, shifts, reconfigurations and renumbers) which may result in disruption.

3.15 HB Tel cannot guarantee that the Telecoms Service will be free of faults or interruptions, timely or secure to the extent the Telecoms Service may be affected by things HB Tel cannot control, such as (without limitation) lack of network capacity, physical obstructions, issues with the customers Local Area Network or atmospheric conditions.

4. DATA

4.1 Rights in Customer Data. As between the Parties, the Customer and its licensors retain all rights, title and interest (including any and all intellectual property rights) in and to the Customer Data. Subject to the terms of this agreement, the Customer hereby grants to HB Tel a non-exclusive, worldwide, royalty-free right to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third-party service providers acting on HB Tel’s behalf (such as HB Tel’s hosting services provider), solely to the extent necessary to: (a) provide, maintain, and update the Telecoms Services for the Customer and its Users; (b) address technical issues or in connection with support matters; (c) perform Telecoms Services ordered by the Customer; (d) comply with applicable law; or (e) as expressly permitted in writing by the Customer.

4.2 Customer Obligations. The Customer will require its Users to keep Logins and password information strictly confidential and not share such information with any unauthorised person. HB Tel will have no liability for actions taken using the Customer’s Logins and passwords, including any unauthorised use or access caused by a breach of the foregoing obligation leading to misuse or misappropriation of such Logins and passwords. In addition, the Customer shall be responsible for any expenses, costs, and losses incurred as a result of a failure of the Customer and/or its Users to keep Logins and password information secure from misuse. The Customer will also be responsible for restricting access by any of its Users who are no longer authorised to access any HB Tel Third Party Applications or the Support Services. In the event that the Customer becomes aware of any Logins and passwords being shared or compromised, the Customer is obliged to contact HB Tel immediately to enable any remedial action taken by HB Tel, and a failure to contact HB Tel will be a material breach of this agreement.

5. SECURITY

5.1 With respect to Customer Data accessed as part of the Telecoms Services for processing, HB Tel will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorised access to or use of Customer Data.

6. INTELLECTUAL PROPERTY

6.1 HB Telecom. The Customer agrees that HB Tel and its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to any technology used to provide or deliver the Telecoms Services. Except for the express limited rights set forth in this agreement, no right, title or interest in any technology is granted to the Customer.

7. CONFIDENTIALITY

7.1 The Recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to: (a) not use any of the Discloser’s Confidential Information for any purpose outside the scope of this agreement, and (b) except as otherwise authorized by the Discloser in writing, limit access to Confidential Information of the Discloser to those of its employees and contractors who need that access for purposes consistent with this agreement and who are bound by confidentiality obligations containing protections not materially less protective of the Confidential Information than those herein. If Recipient is required by law or court order to disclose Confidential Information, then Recipient shall, to the extent legally permitted, provide Discloser with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information.

7.2 Business Contact Information. The Parties hereby acknowledge and agree that the processing of Business Contact Information by the Recipient is incidental. The Parties agree to maintain updated Business Contact Information that is necessary for the continuation of the business relationship (for example, the individual email address to whom invoices are sent).

7.3 The Client hereby consents to disclosure of all information of a confidential nature relating to the Client (and authorises such disclosures pursuant to applicable data protection legislation) for the purposes of administering this Agreement.

8. FEES AND PAYMENT; TAXES; PAYMENT DISPUTES

8.1 Fees and Payment. The Fees that shall be paid by the Customer, and payment terms will be specified in the applicable Order. If no payment terms are noted on the Order, payment of undisputed Fees by the Customer shall be made within thirty (30) days following receipt of HB Tel’s invoice. Except as expressly stated in this agreement, payment obligations cannot be cancelled, and Fees are non-refundable and payable in GBP.

8.2 Fee increases. HB Tel may change the charges if:
(a) we change a service, service features, equipment or the terms and conditions of the agreement if the cost of providing a service or service features increases (for example, the businesses we buy from increase their prices); (b) the cost of running our business increases; (c) we reorganise the way we run our business; or there’s a change in a law, code of practice, regulation, guidance or responsibility that applies to us (for example, if there’s a VAT increase).

8.3 Other changes to the charges. We might need to make changes to the charges for reasons other than those listed above. If we do, we’ll give you notice and you might be able to stop a service in line with our cancellation Clause 8. From January of each year, an annual price increase will be applied to your charges. This annual price increase will be in line with the Consumer Price Index (CPI) rate figure published by the Office for National Statistics in January of that year. If the CPI figure is negative in the relevant year we will only increase the charges by 3.0%. Where you purchase more than one service from HB Tel and each is subject to an annual price rise, the amount of the price rise is calculated on each service separately.

8.4 HB Tel may also change the level of its Fees, retrospectively as well as prospectively, as a consequence of: (a) any Ofcom direction, determination, order or similar decision; or (b) any change in wholesale charges to HB Tel. In both cases, HB Tel shall only be entitled to change the level of its Fees where the foregoing impacts upon the basis upon which the Fees were calculated. This notice may be included in an invoice to the Customer.

8.5 At any time, HB Tel reserves the right to set a minimum call charge on any call type regardless of destination and to vary this at any time at their absolute discretion.

8.6 Cancellation charges. The customer shall pay any cancellation charges, abortive visit charges, engineering visit or site survey charges, or maintenance service charges imposed on HB Tel relating to the Support Service, save where such abortive visit or service maintenance charges arise through actions of HB Tel.

8.7 HB Tel invoices shall be payable by direct debit and variable call charges will be calculated in accordance with usage recorded by call logging or recording data of HB Tel or its service providers which data shall be final and binding upon the parties to this agreement.

9. TERM AND TERMINATION

9.1 Term of this agreement. This agreement will commence on the Effective Date and will remain in effect until terminated in accordance with this Section 9.

9.2 Termination for Cause. Either Party may terminate this agreement for cause upon three months’ written notice if the other Party materially breaches this agreement and fails to correct the breach within 90 days from the date such written notice is received. Additionally, either Party will be entitled to terminate this agreement immediately upon written notice if the other Party becomes (or is reasonably likely to become) bankrupt, or files a petition in bankruptcy or insolvency or a similar analogous event occurs in respect of the other Party.

9.3 Termination for Convenience. Either party may terminate for convenience on three month’s prior written notice.

9.4 Fees and equipment. All equipment supplied will remain the property of HB Tel until paid for in full. Where equipment or services are provided as part of a monthly service fee and are not paid for in full we reserve the right to require a return of the equipment at the customer’s expense and HB Tel will invoice for any costs already incurred relating to the provision of the Support Services. HB Tel reserves the right to charge an administration fee for number porting to an alternative supplier whilst the customer is still under the terms of the current Agreement. This fee will be charged at £200 plus VAT.

9.5 Survival. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

9.6 Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this agreement, HB Tel reserves the right to suspend the Customer’s or any or all of Users’ access to the Telecoms Services, in whole or in part, if: (a) the Customer is thirty (30) days or more overdue on a payment (excluding amounts disputed in reasonable and good faith), provided HB Tel has given the Customer 10 or more days’ prior notice; (b) the Customer’s credit rating decreases at any time and the Customer fails to supply reasonable security in response to a request from HB Tel; (c) HB Tel’s contract relating to any subcontracted element of the Telecoms Services is suspended, varied or terminated. (d) HB Tel, acting reasonably and in good faith, deems such suspension necessary as a result of the Customer’s breach of Sections 2.1, 2.2, or Section 3 (Use of Service); (c) HB Tel, acting reasonably and in good faith, deems such suspension necessary as a result of the Customer substantially exceeding any Use Limits or continuing to exceed Use Limits after HB Tel has given the Customer prior notice of such Use Limits being exceeded; (d) HB Tel reasonably determines suspension is necessary to avoid material harm to HB Tel or its other customers, including if the Services are experiencing denial of service attacks, viruses, security issues, mail flooding, or other attacks or disruptions outside of HB Tel’s control; (e) HB Tel is obliged or requested to comply with an order or instruction of, or a recommendation or request to take such action received from the Government, Ofcom, an emergency services organisation or a competent administrative authority; or (f) as required by law or regulation, including where HB Tel is required to do so in order to avoid a breach of the authorisation of HB Tel under the Communications Act 2003, as amended from time to time; or . To the extent reasonably feasible given the nature of the issue giving rise to the suspension HB Tel will (i) notify the Customer in advance of a suspension, (ii) attempt to limit the suspension to the affected Users or functionality, and (iii) immediately restore access to the Telecoms Services as soon as the issue giving rise to the suspension has been resolved. Without limiting the generality of this Section, HB Tel shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of the Customer’s right to use the Telecoms Services pursuant to this Section 9.6

10. WARRANTY

10.1 Service Warranty. All Telecoms Services will be performed in a professional and workmanlike manner in accordance with industry standards and the agreed-to specifications in the Order. In the event of a breach of this warranty, HB Tel will use commercially reasonable efforts to correct the reported non-conformity, at no charge to the Customer, or if HB Tel is unable to do so within a reasonable period not to exceed thirty (30) days, either Party may terminate the applicable Order and the Customer will receive a pro-rata refund of any unused Fees that the Customer has pre-paid for the Telecoms Services. The foregoing shall be the Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section.

10.2 Warranty flow-down. HB Tel will use reasonable endeavours to flow down the benefit of any warranties given by the original vendors of any Deliverable or any HB Tel Third Party Applications. The Customer acknowledges that HB Tel is unable to give any warranties in excess of those warranties given by such third parties to HB Tel or HB Tel customers.

10.3 Obligations. HB Tel warrants that it will provide as part of the Telecoms Services any Updates to the Customer required to maintain the functionality of the HB Tel Third Party Applications or other software being used by the Customer in accordance with their specifications. HB Tel shall be under no obligation to provide the Telecoms Services for any version of any software that has been superseded by at least two subsequent Updates of such software.

10.4 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE TELECOMS SERVICES ARE PROVIDED “AS IS” AND HB TEL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. HB TEL DOES NOT WARRANT THAT THE USE OF THE TELECOMS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES HB TEL WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. HB TEL SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO THIRD-PARTY PROVIDERS WITH WHOM THE CUSTOMER SEPARATELY CONTRACTS. HB TEL DOES NOT MAKE ANY WARRANTIES AND SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THE HB TEL THIRD-PARTY APPLICATIONS EXCEPT AS OTHERWISE SET OUT IN THIS AGREEMENT.

11. SUPPORT AND AVAILABILITY

During the Term, HB Tel agrees to provide the Customer with the technical support and service levels (collectively, “Support”) in accordance with the support policy attached as Schedule 1. HB Tel accepts no liability for any Support provided where such Support is dependent on third parties, nor shall HB Tel be liable for any non-availability or failure of any service levels where such service levels and availability are reliant on third party providers. The Customer acknowledges that they may experience a degradation in functionality of certain software or services received from HB Tel where the Customer remains on legacy systems which become difficult to support. HB Tel is entitled without any liability to decline providing support where such support and maintenance of software and systems is in HB Tel’s reasonable opinion, no longer commercially or technically viable.

12. CIRCUMSTANCES BEYOND REASONABLE CONTROL

12.1 Neither party shall be liable for any delay in performing its obligations under this Agreement caused by circumstances beyond its reasonable control. These are circumstances such as, but not limited to, Acts of God, insurrection or civil disorder or military operations, national or local emergency, acts or omissions of government or other competent authority or regulatory authority, fire, flood, lightning or other weather of exceptional severity, subsidence, explosion or industrial disputes. This Clause does not apply to the Customer’s obligation to pay.

12.2 If either party is affected by circumstances beyond its reasonable control, it shall notify the other party and shall use reasonable endeavours to overcome the effects. If those effects continue for more than three (3) months, the Parties shall enter into a discussion to agree, in good faith, the best way forward.

13. INDEMNIFICATION

13.1 Indemnification by Customer. The Customer will defend HB Tel from and against any claim by a third-party arising from or relating to any Customer Data, or any product or service offered by the Customer that is managed, monitored or developed by use of the Telecoms Services, and will indemnify and hold harmless HB Tel from and against any damages and costs awarded against HB Tel or agreed in settlement by the Customer (including reasonable attorneys’ fees) resulting from such claim.

14. LIMITATION OF REMEDIES AND DAMAGES

14.1 EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

14.2 LIABILITY CAP. EXCEPT FOR LIABILITY ARISING OUT OF EITHER PARTY’S: (I) BREACH OF CONFIDENTIALITY; (II) INDEMNIFICATION OBLIGATIONS; (III) MISAPPROPRIATION, INFRINGEMENT, OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (V) FRAUD OR WILLFUL MISCONDUCT (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE CUSTOMER TO HB TEL HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE (THE “GENERAL LIABILITY CAP”).

14.3 EXCLUDED CLAIMS. EXCEPT AS PROVIDED IN THIS SECTION 12.3, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ALL EXCLUDED CLAIMS EXCEED TWO TIMES (1.25X) THE GENERAL LIABILITY CAP.

14.4 LIMITATION SCOPE. FOR THE AVOIDANCE OF DOUBT, THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 12 WILL APPLY WITH RESPECT TO ALL LEGAL THEORIES OF LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE.

15. VARIATIONS

HB Tel may vary the other terms of this agreement at any time by posting the changes on its website and, if any variation of these terms and conditions is likely to cause material detriment to the Customer, by giving the Customer reasonable prior notice. HB Tel will only do this if it has a valid reason, for example to reflect changing arrangements with any operator of any telecommunications network or system over which HB Tel provides the Telecoms Service or changing legal, regulatory or business requirements. In the event of any such change, the Customer shall have the right to terminate this Agreement by giving HB Tel 7 days’ written notice. The Customer agrees that if the Customer does not serve such notice within 30 days after any variation(s) to these terms and conditions has been posted on HB Tel’s website or, in the case of a variation which is likely to cause material detriment, notified to the Customer, the Customer will be bound by the Agreement as varied.

16. GOVERNING LAW:

This agreement shall be governed by and construed in accordance with the laws of England and Wales. The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of it.

Last Updated: October 2024