Communications Services Agreement.

These are the terms on which Crosstek IT Ltd supplies voice, data and connectivity services to business customers. They are published here for reference. The version signed by each client (via Zomentum or otherwise) forms the contract between us; where the two differ, the signed version prevails.

Crosstek’s IT support, cyber security, Microsoft 365 licensing, hardware and project services are supplied under separate terms of business and are not covered by this Agreement.

Key commercial terms

The following particulars apply to this Agreement. Service-specific terms, pricing and Service Minimum Periods are set out in each Service Schedule and Order.

Background

(A) Crosstek is an IT managed services provider which supplies communications, connectivity and related services to business customers, utilising the networks and services of a number of UK based Carriers.

(B) The Client wishes to purchase, and Crosstek wishes to supply, certain voice, data, connectivity and related services.

(C) The parties have agreed this Agreement as a framework under which they may enter into Service Schedules and Orders for the supply of Services.

1. Definitions and interpretation

1.1 In this Agreement, the Service Schedules and Orders, the following terms have the following meanings:

1.2 References to any statute or statutory provision include that statute or provision as amended, re-enacted or extended from time to time.

1.3 Headings are for convenience only and do not affect interpretation. Words in the singular include the plural and vice versa.

1.4 In the case of conflict or inconsistency between the documents forming the contract between the parties, the following descending order of precedence applies: (a) the Order; (b) the Service Schedule (excluding its schedules); (c) this Agreement; (d) the schedules to the Service Schedule; and (e) any documents referred to in them.

1.5 Where a document is silent on a matter which is dealt with in another document, this does not give rise to a conflict and the express provision prevails.

1.6 Words following “include”, “including” or “in particular” are illustrative and do not limit the preceding words. References to time are to London time.

1.7 Unless expressly stated otherwise, “in writing” or “written” includes email sent to the addresses set out in the Key Commercial Terms (or as subsequently notified), but excludes fax and text or instant messaging.

1.8 All Service Schedules and Orders are supplemental to this Agreement, and the terms of this Agreement apply to each of them unless expressly stated otherwise.

1.9 An obligation on the Client not to do any act or thing includes an obligation to procure that each User does not do that act or thing.

2. Term and scope

2.1 This Agreement commences on the Effective Date and continues in force unless and until terminated in accordance with clause 12. Each Service Schedule commences on its Commencement Date and each Order commences on acceptance by Crosstek, and each continues in accordance with its terms.

2.2 Crosstek supplies the Services to the Client in its own name as an independent provider. Crosstek may use Carriers and sub-contractors to deliver the Services, but remains responsible to the Client for the Services in accordance with this Agreement.

2.3 Crosstek shall use reasonable endeavours to provide each Service to the Client from the applicable Go-Live Date.

2.4 This Agreement governs communications and connectivity Services only. Crosstek’s IT support, security, Microsoft 365 licensing, hardware and project services are supplied under Crosstek’s separate terms of business and are not affected by this Agreement.

2.5 The Services are supplied for the Client’s own business use and for use by its Users. The Client shall not resell or make the Services available to any third party for its own commercial gain without Crosstek’s prior written consent.

2.6 Nothing in this Agreement creates any partnership, agency or joint venture between the parties. Neither party has authority to bind the other or to make any representation, warranty or undertaking on the other’s behalf.

3. Services, orders and service levels

3.1 Where the Client requires a Service, Crosstek shall issue a written quote setting out the Service, the Site(s), the Charges, the Service Minimum Period and the basis of any Cancellation Charges and Early Termination Charges. The Client places an Order by accepting that quote in writing (including by electronic signature). Each accepted quote is an Order under, and governed by, this Agreement and the applicable Service Schedule.

3.2 Crosstek may accept or decline any Order at its discretion. Where Crosstek requires additional information (including Site surveys, address validation or Carrier checks) in order to accept an Order, the Client shall provide it promptly.

3.3 An Order becomes binding on Crosstek only when the Client’s acceptance has been confirmed in writing by an authorised representative of Crosstek and the Order has been placed with the relevant Carrier.

3.4 Crosstek may cancel or reject an Order at any time before the Go-Live Date where a Carrier declines, cancels or is unable to deliver the underlying service, without liability to the Client other than to refund any Set-up Charges already paid for that Order.

3.5 Without prejudice to any other right or remedy, where the Client cancels or terminates an Order or Service Schedule:

1. 3.5.1 before the Go-Live Date, the Client shall pay the applicable Cancellation Charges; and
2. 3.5.2 after the Go-Live Date and before the expiry of the applicable Service Minimum Period, the Client shall pay the applicable Early Termination Charges.

3.6 Crosstek warrants that it shall perform its obligations with the skill and care reasonably expected of a competent supplier of similar services and shall use reasonable endeavours to meet any applicable Service Levels.

3.7 Time is not of the essence in relation to Crosstek’s performance. Any lead times quoted for installation, commencement or recommencement of a Service are indicative only and depend on Carrier delivery.

3.8 The Client shall report any actual or suspected Service Failure to the Service Helpdesk as soon as reasonably practicable, providing such information as Crosstek reasonably requires to investigate. Crosstek shall log the time of receipt and use reasonable endeavours to investigate and respond in accordance with any applicable Service Levels.

3.9 The Client shall pay Crosstek’s reasonable costs (which are treated as Charges) of investigating a reported fault, whether on Site or remotely, which Crosstek determines is either not a Service Failure, or is a Service Failure for which Crosstek is not liable under this Agreement. Crosstek shall notify the Client of the likely cost before incurring material third party charges where practicable.

3.10 Where a Service Schedule provides for Service Credits, the Client must claim them by written notice to Crosstek within 30 days of the end of the calendar month to which the claim relates. Where a valid claim is made, Crosstek shall issue a credit note for the applicable Service Credit. Service Credits not claimed within that period are waived. Crosstek’s ability to pass on Service Credits depends on the equivalent credit being available from the relevant Carrier.

3.11 Crosstek shall not be liable, and Service Credits shall not accrue, for any Service Failure caused by:

1. 3.11.1 an act, omission or fault of the Client, its Users or their representatives, employees, agents or contractors;
2. 3.11.2 an act or omission of a Carrier or other third party, including any failure of a Carrier to provide any equipment, software, materials or information;
3. 3.11.3 any fault arising outside the network used to deliver the Service, including at the Site or in the Client’s own network;
4. 3.11.4 any equipment, software or service not supplied by Crosstek;
5. 3.11.5 a Force Majeure Event;
6. 3.11.6 any failure by the Client or a User to follow Crosstek’s reasonable instructions;
7. 3.11.7 any suspension of the Services under clause 4 or clause 11; or
8. 3.11.8 any other event specified in the applicable Service Schedule as excluded.

3.12 The duration of a Service Failure, for Service Level purposes, is measured from the time the fault is logged by the Service Helpdesk until the Service is restored to the standard set out in the Service Schedule.

3.13 Crosstek may at any time review the Services then being provided in order to identify significant changes required to the technology or processes used to provide them (for example, where a Carrier withdraws or replaces an underlying product, or where a network is being retired). Following such a review Crosstek may withdraw, replace or amend one or more Services and adjust the associated Charges accordingly.

3.14 Where a change to or withdrawal of a Service under clause 3.13 arises:

1. 3.14.1 solely due to Crosstek’s own business requirements, Crosstek shall give the Client at least three months’ written notice; or
2. 3.14.2 as a result of a change imposed by a Carrier, or for legal or regulatory reasons, Crosstek shall give the Client as much written notice as is reasonably practicable in the circumstances.

3.15 On expiry of any notice period under clause 3.14, Crosstek shall not accept new Orders for the affected Service and may, at its discretion, either terminate any Orders which have not reached their Go-Live Date (in which case the Client shall be offered a replacement service) or allow them to progress to completion. Where a Service is withdrawn under clause 3.14, no Early Termination Charges shall apply to the withdrawn Service.

3.16 Crosstek may amend the technical specification or manner of delivery of a Service on written notice to the Client for any reason (including improving security, infrastructure, capacity or cost, or mitigating a known fault), provided Crosstek uses reasonable endeavours to ensure the amendment does not have a materially detrimental effect on the Service.

4. Obligations of the client

4.1 The Client shall, and shall procure that its Users shall:

1. 4.1.1 comply promptly with all reasonable instructions of Crosstek relating to the Services;
2. 4.1.2 co-operate with and assist Crosstek in providing the Services, including providing accurate information, Site details and access;
3. 4.1.3 comply with all applicable Legislation and not cause Crosstek or any Carrier to contravene any Legislation;
4. 4.1.4 comply with this Agreement, each Service Schedule and each Order;
5. 4.1.5 not use the Services in a way which causes, or is likely to cause, degradation of service to Crosstek’s other customers or to any Carrier’s network, and notify Crosstek at least five Business Days before any significant planned increase in traffic;
6. 4.1.6 not do anything which would cause Crosstek or any Carrier to lose or breach any authorisation to act as a communications provider;
7. 4.1.7 obtain and maintain any licences, permits, consents (including landlord and wayleave consents) or authorisations required to receive or use the Services at each Site;
8. 4.1.8 not use the Services to send, store, upload, download, reproduce or knowingly receive any material which is offensive, obscene, menacing, abusive, defamatory or illegal, or in a manner which is fraudulent or infringes the rights of any person;
9. 4.1.9 take all reasonable steps to prevent unlawful intrusion into any equipment, software or systems connected to the Services;
10. 4.1.10 comply with the Acceptable Use Policy, which Crosstek may amend from time to time on notice;
11. 4.1.11 use the Services in accordance with any Carrier terms notified to the Client which apply to a specific Service; and
12. 4.1.12 keep its contact, billing and Site information up to date and notify Crosstek promptly of any change.

4.2 If the Client or a User uses a Service in breach of clause 4.1, Crosstek may on notice suspend the affected Service (in whole or in part), without prejudice to its other rights. Crosstek shall restore the Service as soon as reasonably practicable once satisfied that the breach has been remedied. If the breach cannot be remedied, Crosstek may terminate in accordance with clause 12.4. All Charges remain payable during any suspension, and Crosstek may charge its reasonable costs of suspension and reconnection.

5. Charges, invoicing, payment and security

5.1 Crosstek shall invoice:

1. 5.1.1 Recurring Charges monthly in advance (with any part-month amounts arising from new installations or cancellations invoiced in arrears);
2. 5.1.2 Non-Recurring Charges monthly in arrears;
3. 5.1.3 Set-up Charges at any time after the applicable Order is accepted; and
4. 5.1.4 all other Charges as and when applicable.

5.2 Charges are calculated by reference to usage and connection data recorded by Crosstek and its Carriers, which shall be binding on the Client save in the case of a material and demonstrable error.

5.3 The Client shall pay each invoice within 14 days of the invoice date, by Direct Debit. If the Client cancels its Direct Debit or fails to pay by Direct Debit, Crosstek may charge an administration fee of 1% of the invoice value or £25 (whichever is greater), excluding VAT.

5.4 Crosstek may change the rates on which the Charges are calculated on at least one month’s written notice, save that Crosstek shall not change the Recurring Charges for a Service during its Service Minimum Period unless the change results from a change in Legislation or an increase imposed by a Carrier, in which case Crosstek may pass the increase through on written notice.

5.5 Any delay by Crosstek in invoicing does not prevent Crosstek from invoicing later or relieve the Client of liability to pay.

5.6 If the Client, acting reasonably and in good faith, wishes to dispute all or part of an invoice, it must notify Crosstek in writing within 14 days of the invoice date with full details of the dispute. The undisputed part must be paid in accordance with clause 5.3. Invoices not disputed within that period are deemed accepted.

5.7 Subject to clause 5.6, all payments shall be made without set-off, counterclaim, withholding or deduction. Crosstek may set off any amount owed to it by the Client against any amount it owes to the Client under this Agreement or any other contract between the parties.

5.8 Interest on overdue undisputed amounts accrues daily at the greater of (i) 3% per annum above the Bank of England base rate, and (ii) the rate payable under the Late Payment of Commercial Debts (Interest) Act 1998, from the due date until receipt of cleared funds.

5.9 Crosstek may carry out a credit check on the Client at any time and may set a reasonable credit limit. The Client may not order Services with a value exceeding that credit limit without paying in advance.

5.10 Where Crosstek reasonably considers it commercially prudent (including where required by a Carrier), Crosstek may require the Client to provide a deposit or other financial security in an amount and form reasonably specified by Crosstek, as a condition of continuing to provide the Services. Failure to provide such security within 10 Business Days of a request is a material breach which cannot be remedied.

6. Access to sites

6.1 The Client shall procure that Crosstek, its Carriers and anyone acting on their behalf have access to each Site and any other necessary premises at all reasonable times on reasonable notice. Where a visit cannot proceed because access is not provided, Crosstek is relieved of its obligation to provide the Service or meet the Service Levels for the affected period and may charge an abortive visit charge (including any Carrier abortive visit charge) for which the Client shall be liable.

6.2 Abortive visit charges may also apply where access is provided but work is not possible because the Site presents a health and safety risk, or because the operation or security of equipment to be installed would be compromised.

6.3 Crosstek and anyone acting on its behalf shall use reasonable endeavours to observe any reasonable Site regulations notified in advance. The Client shall procure a suitable and safe working environment at each Site.

6.4 Access is normally required during Business Hours only. Work requested by the Client outside Business Hours may be refused, or if accepted, charged at Crosstek’s prevailing out-of-hours rates together with any applicable Carrier charges.

6.5 Where Crosstek or a Carrier needs to contact a User or a Site contact directly to deliver or support a Service, the Client shall provide the relevant contact details and any consents required.

7. Equipment

7.1 Where Network Terminating Equipment is required, it shall be provided by Crosstek or the applicable Carrier. Title in NTE remains at all times with Crosstek or the Carrier.

7.2 The Client is liable for any loss of or damage to NTE at a Site, except fair wear and tear or loss or damage caused by Crosstek or anyone acting on its behalf, and shall keep NTE insured to its replacement value.

7.3 The Client shall provide suitable secure accommodation, environmental conditions, connection points and electricity for any NTE and CPE, and ensure all necessary power supply and fittings are in place, in working order and compliant with Crosstek’s reasonable requirements. Crosstek is not responsible for any Service interruption caused by a power failure at a Site.

7.4 The Client shall not, and shall procure that Users do not, remove any markings on NTE, or sell, charge, encumber or assign NTE.

7.5 Unless a Service Schedule or Order provides otherwise, the Client shall source, pay for, configure and maintain the CPE. The Client shall ensure that any CPE connected to a Service is technically compatible with it, does not harm any network, Service or equipment, and is connected and used in accordance with Legislation and any standards notified by Crosstek. Where CPE does not comply, the Client shall disconnect it immediately, failing which Crosstek may do so at the Client’s expense. Crosstek is not liable for any Service Level failure attributable to non-compliant CPE.

7.6 Where Crosstek agrees to supply CPE under a Service Schedule or Order:

1. 7.6.1 risk in the CPE passes to the Client on delivery to the Site;
2. 7.6.2 title passes only on receipt by Crosstek in cleared funds of all Charges for that CPE (unless the Order states that the CPE is rented, in which case title remains with Crosstek);
3. 7.6.3 until title passes, the Client shall hold the CPE as Crosstek’s bailee, keep it in satisfactory condition and insured, and not destroy or obscure any identifying marks; and
4. 7.6.4 the Client’s right to possession of CPE in which title has not passed, and of any NTE, ends immediately on an Insolvency Event affecting the Client, and the Client grants Crosstek an irrevocable licence to enter any premises where such equipment is kept in order to inspect or recover it.

7.7 The Client shall not permit any lien, charge or similar restriction to be placed on NTE, CPE in which title has not passed, or any other equipment provided by Crosstek as part of the Services.

8. Security and unauthorised usage

8.1 The Client is liable for all Charges incurred through use of the Services, whether or not that use was authorised by the Client, and including use by Users, third parties, or fraudulent use (for example toll fraud, SIM or account compromise), except to the extent caused by Crosstek’s negligence.

8.2 The Client is responsible for preventing unauthorised and fraudulent use of the Services; maintaining the security of all systems, network elements and equipment within its or its Users’ control; and maintaining the secrecy of all passwords, PINs, log-in details and access codes.

8.3 Without limiting clause 8.2, the Client shall (and shall procure that Users shall) use strong passwords including letters, numbers and symbols; change passwords and PINs on a regular basis and immediately on suspected compromise; restrict access credentials to authorised personnel with a need to know; enable any multi-factor authentication made available; and follow any other reasonable security instructions from Crosstek or a Carrier.

8.4 Crosstek is not obliged to monitor use of the Services. Where Crosstek or a Carrier does monitor usage, or applies fraud limits or call barring, this is done on a reasonable endeavours basis and Crosstek is not liable for failing to detect or prevent unauthorised or fraudulent use.

8.5 The Client shall notify Crosstek immediately on becoming aware of any illegal, fraudulent or unauthorised use of the Services. On receipt of such notice Crosstek shall use reasonable efforts to suspend or prevent that use, and may suspend or terminate the affected Service. Crosstek shall restore the Service within a reasonable time once the Client demonstrates to Crosstek’s reasonable satisfaction that appropriate measures are in place to prevent recurrence. Charges remain payable during any such suspension.

8.6 Where Crosstek has suspended a Service under clause 8.5 and the conditions for restoration have not been met within 30 days, Crosstek may terminate the affected Service Schedule or Order immediately on written notice.

8.7 Where a voice Service is suspended or fails, the Client shall ensure that it and its Users have an alternative means of access to the emergency services. Crosstek shall provide any regulatory information regarding emergency calling limitations applicable to a Service in the relevant Service Schedule.

9. Confidentiality, data protection and publicity

9.1 Each party shall keep the other’s Confidential Information in strict confidence, use it only for the purposes of this Agreement, and disclose it only to those of its employees, Group companies, professional advisers, sub-contractors and Carriers who need to know it for those purposes and are bound by equivalent obligations of confidence. These obligations continue during the term of this Agreement and for two years after termination or expiry of the last Order.

9.2 Clause 9.1 does not apply to information which the receiving party can show was already lawfully known to it without obligation of confidence, is or becomes public knowledge other than through its breach, was independently developed, or is required to be disclosed by law, a court or a regulator (in which case the receiving party shall, where lawful, consult the other party in advance).

9.3 Each party acknowledges that damages alone may not be an adequate remedy for breach of this clause 9 and that the other party may seek injunctive or other equitable relief.

9.4 Neither party shall make any press or public announcement about this Agreement without the other’s prior written approval (not to be unreasonably withheld or delayed), save that Crosstek may refer to the Client as a customer in its marketing materials with the Client’s prior consent.

9.5 Each party shall comply with Data Protection Laws in connection with this Agreement. The parties acknowledge that, in providing the Services, Crosstek and its Carriers will process traffic, billing and account data as independent Controllers to the extent required to provide, bill and support the Services and to comply with Legislation. Where Crosstek processes Personal Data as a Processor on behalf of the Client, the data processing terms in the applicable Service Schedule (or, if none, Crosstek’s standard data processing terms) shall apply.

9.6 The Client shall ensure that it is entitled to share any Client Data with Crosstek and its Carriers; that all necessary fair processing notices have been given and consents obtained; that Client Data is accurate and transferred by secure means; and that it does not cause Crosstek or any Carrier to breach Data Protection Laws. Each party shall notify the other without undue delay on becoming aware of a Personal Data breach affecting Personal Data processed under this Agreement, and shall provide reasonable assistance in relation to Data Subject requests and any such breach.

10. Intellectual property rights

10.1 Nothing in this Agreement transfers any Intellectual Property Rights existing at the Effective Date. Any Intellectual Property Rights created by or on behalf of Crosstek in the course of providing the Services vest in Crosstek (or the relevant Carrier).

10.2 Crosstek grants the Client a non-exclusive, non-transferable licence to use any Software solely for the purpose of receiving the Services during the term of the applicable Order. The Client shall not copy, decompile, reverse engineer or modify any Software (except as permitted by law) and shall not distribute or disclose it to any third party.

10.3 The Client shall not use Crosstek’s or any Carrier’s trade marks or other Intellectual Property Rights except as expressly permitted in writing, and shall not do anything which may impair or prejudice them.

11. Suspension

11.1 Without prejudice to its other rights, Crosstek may suspend any Service (in whole or in part) without liability (subject to clause 15.1) if:

1. 11.1.1 necessary for operational reasons such as upgrades or planned maintenance;
2. 11.1.2 necessary for emergency maintenance;
3. 11.1.3 the Service is affected by a Force Majeure Event;
4. 11.1.4 Crosstek or a Carrier is required to do so by law, regulation, court order or a regulator (including OFCOM);
5. 11.1.5 a Carrier suspends the underlying service;
6. 11.1.6 Crosstek is entitled to terminate under clause 12.4 or 12.5, whether or not it elects to do so; or
7. 11.1.7 the Client fails to pay any invoice in accordance with clause 5.3.

11.2 For planned maintenance under clause 11.1.1, Crosstek shall use reasonable efforts to give two Business Days’ notice and to schedule work outside Business Hours, and shall restore the Service as soon as reasonably able. For suspensions under clauses 11.1.2 to 11.1.5, Crosstek shall give as much notice as reasonably practicable. For suspensions under clauses 11.1.6 and 11.1.7, Crosstek may suspend on immediate notice.

11.3 Charges remain payable during any period of suspension. Where a suspension results from the Client’s breach or non-payment, the Client shall reimburse Crosstek’s reasonable costs of suspension and reconnection. Suspension does not exclude Crosstek’s right subsequently to terminate.

12. Termination

12.1 This Agreement has no minimum term. Either party may terminate it at any time by giving the other not less than 90 days’ written notice. Termination of this Agreement does not affect any Service Schedules or Orders then in force: each continues until the end of its Service Minimum Period (or later termination in accordance with clause 12.2) and the terms of this Agreement continue to apply to it until then.

12.2 The Client may terminate any Order or Service Schedule by giving Crosstek not less than 90 days’ written notice, provided that such notice may not expire before the end of the applicable Service Minimum Period. Where notice would expire earlier than the Service Minimum Period, Early Termination Charges apply in accordance with clause 3.5.

12.3 Crosstek may terminate any Order or Service Schedule on not less than 30 days’ written notice where the relevant Carrier terminates, withdraws or ceases to make available the underlying service, or where Crosstek withdraws the Service under clause 3.13. In those circumstances Crosstek shall use reasonable endeavours to offer a replacement service and no Early Termination Charges shall apply to the terminated Service.

12.4 Either party may terminate this Agreement and/or any Service Schedule and/or any Order with immediate effect by written notice if the other party:

1. 12.4.1 is in material breach of this Agreement or a Service Schedule and that breach cannot be remedied;
2. 12.4.2 is in material breach which is capable of remedy and fails to remedy it within 30 days of written notice specifying the breach; or
3. 12.4.3 is the subject of an Insolvency Event.

12.5 Crosstek may also terminate this Agreement and/or any Service Schedule and/or any Order with immediate effect by written notice if:

1. 12.5.1 Crosstek reasonably considers that an act or omission of the Client or a User will result in, or has resulted in, a breach of Legislation, constitutes fraud or other unlawful activity, or may place Crosstek in breach of its agreement with a Carrier;
2. 12.5.2 Crosstek is required to do so by a regulator (including OFCOM) or to comply with Legislation;
3. 12.5.3 any undisputed Charges remain unpaid more than 14 days after Crosstek has given written notice of non-payment;
4. 12.5.4 use of a Service is causing, or is likely to cause, damage to or interruption of any network, or prevents Crosstek from supplying services to other customers;
5. 12.5.5 the Client exceeds any credit limit set under clause 5.9 and fails to pay the excess within three Business Days of written notice;
6. 12.5.6 any deposit or security required under clause 5.10 is not provided or maintained;
7. 12.5.7 there is a change of Control of the Client and the Client has not notified Crosstek in advance; or
8. 12.5.8 an application is made to strike the Client off the register of companies.

13. Consequences of termination

13.1 On termination of a Service Schedule or Order for any reason, Crosstek is no longer obliged to provide the affected Services, notwithstanding that a Service Minimum Period may not have expired.

13.2 Where a Service Schedule or Order is terminated other than by Crosstek under clause 12.3 or by the Client under clause 12.4, the Client shall pay to Crosstek within 14 days of the effective date of termination any Early Termination Charges and any Cancellation Charges, together with all other Charges accrued to the date of termination.

13.3 Where Crosstek terminates under clause 12.4 or 12.5, the Client forfeits any Charges paid in advance for the affected Services. In all other cases, and subject to payment of all amounts owing, Crosstek shall refund any amount standing in credit on the Client’s account.

13.4 From the date on which either party serves notice of termination of this Agreement or a Service Schedule, the Client may not place new Orders under it unless the parties agree otherwise in writing.

13.5 On termination, each party shall return or (at the other’s option) securely destroy the other’s Confidential Information, subject to any legal or regulatory retention requirements. The Client shall return any NTE and any rented or unpaid CPE to Crosstek in good condition, or permit Crosstek to collect it, within 14 days.

13.6 Where the Client is moving Services to another provider, Crosstek shall provide reasonable professional offboarding assistance during the notice period, including the provision of information reasonably required by the incoming provider (such as number porting information and circuit references), subject to the Client’s account being up to date. Number porting is subject to the industry porting process and the co-operation of the gaining provider and Carriers. Assistance beyond that reasonably required for an orderly handover may be charged at Crosstek’s prevailing rates.

13.7 Clauses 1, 5, 7.2, 8.1, 8.2, 9, 10, 11, 13, 14, 15, 16, 17 and 19 to 30, together with any indemnity and any other provision intended to survive, continue in force after termination.

13.8 Termination is without prejudice to either party’s accrued rights and remedies.

14. Non-solicitation

14.1 The Client shall not, during the term of this Agreement and for 12 months after its termination, without Crosstek’s prior written consent, directly or indirectly solicit or entice away (or attempt to do so) any employee or contractor of Crosstek with whom the Client had dealings in connection with this Agreement. This does not prevent general recruitment advertising not specifically targeted at Crosstek’s staff.

14.2 The parties consider these restrictions reasonable. If a court finds any of them unenforceable, the parties accept such modification to their extent or duration as the court sees fit to render them enforceable. Each restriction is a separate obligation and severally enforceable.

15. Limitation of liability

15.1 Nothing in this Agreement limits or excludes either party’s liability for death or personal injury caused by its negligence; for fraud or fraudulent misrepresentation; for breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or for any other liability which cannot lawfully be limited or excluded.

15.2 Nothing in this Agreement limits or excludes the Client’s liability to pay the Charges, or its liability under any indemnity or for breach of clause 8, 9 or 10.

15.3 Subject to clause 15.1, Crosstek’s maximum aggregate liability arising out of or in connection with this Agreement, all Service Schedules and all Orders in any 12 month period, whether in contract, tort (including negligence), misrepresentation, under statute or otherwise, shall not exceed the total Charges paid by the Client under this Agreement in the 12 months immediately preceding the event giving rise to the claim.

15.4 Subject to clause 15.1, Crosstek’s maximum aggregate liability for Service Credits under a Service Schedule shall not exceed, in any calendar month, 10% of the Charges paid for Services under that Service Schedule in that month. Service Credits paid count towards the cap in clause 15.3.

15.5 Subject to clause 15.1, Crosstek shall not be liable to the Client, whether in contract, tort (including negligence), misrepresentation, under statute or otherwise, for any loss (whether direct, indirect or consequential) of business, revenue, profit, contracts, anticipated savings, operating time, goodwill or reputation, or for loss or corruption of data or equipment, nor for any indirect, special or consequential loss.

15.6 If Crosstek fails to provide a Service and the Client diverts traffic or services to another provider, Crosstek is not responsible for the costs of that diversion, including the other provider’s charges.

15.7 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise, are excluded to the fullest extent permitted by law. Crosstek does not warrant that the Services will be uninterrupted, fault-free or secure.

15.8 Service Credits (where applicable) are the Client’s sole and exclusive remedy for any failure by Crosstek to meet the Service Levels.

15.9 The Client shall indemnify Crosstek and its Group against all Losses arising out of or in connection with any breach by the Client or its Users of clause 4.1 or clause 8, or any claim by a third party arising from the Client’s or a User’s use of the Services other than in accordance with this Agreement.

15.10 Subject to clause 15.1, any claim by the Client against Crosstek must be commenced within two years after the cause of action arose, failing which it is permanently barred.

16. VAT

16.1 All Charges are exclusive of VAT and any similar sales taxes, which shall be added to invoices at the applicable rate and paid by the Client in addition.

16.2 The Client shall notify Crosstek promptly of any change to its business or legal structure which may affect the tax treatment of the Services.

17. Anti-bribery

17.1 Each party shall comply with all applicable anti-bribery and anti-corruption laws, including the Bribery Act 2010, shall not offer, give, request or accept any bribe or improper advantage in connection with this Agreement, and shall maintain adequate procedures to prevent bribery. Either party may terminate this Agreement immediately on written notice if the other is in breach of this clause 17.

18. TUPE

18.1 The parties do not envisage that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (or equivalent legislation) will apply to this Agreement or any Service Schedule or Order on its commencement or termination. Each party shall indemnify the other against any Losses arising from any claim that those regulations apply to a transfer of that party’s employees to the other.

19. Notices

19.1 Notices under this Agreement shall be in writing and delivered by hand, by pre-paid first class or recorded delivery post to the address of the relevant party set out on the front page (or as subsequently notified), or by email to the addresses set out in the Key Commercial Terms (for Crosstek: [email protected]).

19.2 Notices delivered by hand are deemed served on receipt; by post, on the earlier of receipt and two Business Days after posting; by email, at the time of transmission if sent during Business Hours, otherwise at 9.00am on the next Business Day, provided no delivery failure notification is received. Notices of termination or of breach sent by email must be marked for the attention of the Managing Director.

20. Entire agreement

20.1 This Agreement, the Service Schedules and the Orders constitute the entire agreement between the parties and supersede any prior agreement, proposal or representation relating to their subject matter. Neither party has relied on any representation not expressly set out in them. Nothing in this clause limits liability for fraud or fraudulent misrepresentation.

21. Further assurance

21.1 Each party shall, at the other’s reasonable request and cost, do such further acts and execute such documents as may reasonably be required to give full effect to this Agreement.

22. Record keeping

22.1 Each party shall keep accurate records relating to the Services and the Charges for at least six years after termination, or longer where required by law, and shall make relevant records available to the other on reasonable request for the purpose of verifying compliance with this Agreement or resolving a billing dispute.

23. Severability

23.1 If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall be unaffected.

24. Assignment and sub-contracting

24.1 Crosstek may assign, novate or sub-contract any of its rights and obligations under this Agreement to any member of its Group, to a Carrier, or to a successor to its business, on written notice to the Client.

24.2 The Client may not assign, sub-contract or otherwise deal with any of its rights or obligations under this Agreement without Crosstek’s prior written consent (not to be unreasonably withheld).

25. Amendments

25.1 This Agreement, any Service Schedule and any Order may only be amended in writing by authorised representatives of both parties, except that Crosstek may: amend or withdraw Services in accordance with clauses 3.13 to 3.16; amend the Charges in accordance with clause 5.4; and make any amendment necessary to comply with Legislation, a direction of OFCOM or another regulator, or any applicable code of practice, on written notice to the Client.

26. Waiver

26.1 A failure or delay by either party to exercise or enforce any right under this Agreement is not a waiver of that right and does not prevent its exercise or enforcement on a later occasion.

27. Force majeure

27.1 Neither party is liable for any delay or failure in performing its obligations (other than payment obligations) caused by circumstances beyond its reasonable control (a Force Majeure Event), including act of God, fire, flood, severe weather, epidemic, war, terrorism, riot, civil disobedience, national emergency, strikes or labour disputes (other than of the affected party’s own staff), acts of government or regulators, power failure, failure of any Carrier or other public telecommunications operator, and non-availability of any third party communications service or the internet.

27.2 The affected party shall notify the other as soon as reasonably practicable and use reasonable endeavours to mitigate the effect of the Force Majeure Event. If a Force Majeure Event continues for 60 days, either party may terminate the affected Service Schedule or Order on written notice, without Early Termination Charges.

28. Third party rights

28.1 Except that any member of Crosstek’s Group may enforce this Agreement as if it were Crosstek, no person who is not a party to this Agreement has any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

29. Law and jurisdiction

29.1 This Agreement, all Service Schedules and all Orders (including any non-contractual disputes arising out of them) are governed by the laws of England and Wales, and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

30. Counterparts and electronic signature

30.1 This Agreement, each Service Schedule and each Order may be executed in any number of counterparts, and by electronic signature (including via Zomentum or a similar platform), each of which is an original and all of which together constitute one agreement.

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If you have any questions about this Agreement, please contact us.