PART C - GENERAL CONTRACT TERMS AND CONDITIONS

1. These General Contract Terms and Conditions (version 1.4 - February 2025)

2. Definitions and Interpretation 

1.1 In this Agreement the following definitions shall have the following meanings:

“Activation Charges” mean those amounts payable by the Customer to FluidOne for the connection and Activation of a Service as set out in the relevant Order or as otherwise communicated to the Customer by FluidOne prior to installation of a Service;

“Activation Date” means the date on which the Service is Activated;

“Agreement” means the agreement between FluidOne and the Customer for the supply of the Equipment and/or Services, comprising of Part A, Part B and this Part C.

“Authorised Personnel” means any employee of the Customer, whom the Customer has granted permission to sign and submit Orders on its behalf;

“Confidential Information” means information that falls within the types of information which has been designated as confidential by either FluidOne or the Customer or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the business, affairs, properties, assets, trading practices, Services, developments, trade secrets, IPR, know-how, personnel, customers and suppliers of either Party, all personal data and sensitive personal data within the meaning of the Data Protection Act 2018 and the commercially sensitive information.;

“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;

“Delivery Date” means the delivery date (if any) for the supply of the Equipment as set out in Part A, the Quote or the Order;

“Deliverables” mean all of the services, goods, products, work, data, items, materials and property (including without limitation computer programs, data, diagrams, reports, specifications (including drafts) and spreadsheets) to be created, developed, produced, delivered, performed, or provided by or on behalf of, or made available through, FluidOne (or any agent, contractor or subcontractor of the FluidOne) in connection with this Agreement.

“Deposit” means the non-refundable deposit to be paid by the Customer to FluidOne in respect of the Equipment, as set out in Part A or the Order;

“Early Termination Charges” means the amount equal to the Charges that would have been payable during the entire Initial Term less any Charges already paid by the Customer for that Service, which will be charged by FluidOne to the Reseller for terminating a Contract prior to the expiry of the applicable Initial Term, other than validly terminated in accordance with the terms of a Contract;

“Equipment” means the Hardware and/or Third Party Software to be supplied by FluidOne to the Customer under the Agreement, as identified in Part B or the Order;

“Good Working Order” means the Equipment operating in accordance with any applicable operating manuals in all material respects.

“Hardware” means the computer hardware listed in Part B or the Order;

“Hardware Support” means the provision of 8:30am to 17:00pm (Monday to Friday excluding public holidays) help desk support for basic advice on the use and operation of the Hardware and subject to the limitations set out in this Part C and Part B;

“FluidOne Ltd” means a company registered in England and Wales with number 05296759 whose registered address is 5 Hatfields, London SE1 9PG;

“Intellectual Property Rights” (“IPR”) means Patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Losses” means any actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly;

“Order” means the Customer’s written acceptance of the Quote OR Order Form either by way of the Customer signing and returning the Quote to FluidOne or providing FluidOne with a signed purchase order for the Services and/or Equipment as outlined in the Quote or Order Form (providing always that such purchase order shall not seek to modify or replace any aspect of the Quote/Order Form or the Agreement).

“Order Committed Date” means:

(a)           a date has been set for the conduct of a site survey; or

(b)           a date has been set for Activation of any part of the Services or for the installation of any equipment or part necessary for Activation of the Services; or

(c)           FluidOne has confirmed acceptance of the Order in writing to the Customer.

“Product Annexes” means the linked documents below that describe the relevant Services that form part of each Order and may be amended from time to time:

DSL -                                                          https://www.fluidone.com/products/FluidOne-Product-Annex-DSL-D.pdf.

Ethernet -                                             https://www.fluidone.com/products/FluidOne-Product-Annex-Ethernet-D.pdf.

Mobile -                                                 https://www.fluidone.com/products/FluidOne-Product-Annex-Mobile-D.pdf.

Unified Communications - https://www.fluidone.com/products/FluidOne-Product-Annex-Unified-Communications-D.pdf.

Cloud and Data -                           https://www.fluidone.com/products/FluidOne-Product-Annex-Cloud-and-Data-D.pdf.

Managed IT Services -             https://www.fluidone.com/products/FluidOne-Product-Annex-Managed-IT-Services.pdf  

WebTitan -                                           https://www.fluidone.com/products/FluidOne-Product-Annex-WebTitan.pdf

“Part A” means the section of this Agreement headed Part A General Contract Details;

“Part B” means the section of this Agreement headed Part B “Details of Services to be provided”;

“Part C” means these General Contract Terms and Conditions.

“Parties” means the Customer and FluidOne;

“Charges” means the Charges payable by the Customer to FluidOne in respect of the Equipment and/or the Services, as set out in Part A or the Order or any other charges set out in the Order, or Quote or otherwise payable hereunder and payable in accordance with this Agreement;

“Promotional Material” means FluidOne’s catalogues, brochures, websites or such other applicable sales or promotional literature, materials or publications.

“Quote” means the section of this Agreement provided to the Customer by FluidOne which lists amongst other information the Charges, Equipment and Services to be provided by FluidOne.

“Services” means the services to be provided by FluidOne to the Customer, comprising of the Support, as shall be particularised further within, Part A, Part B or the service(s) specified on the relevant Order and/or Product Annex;

“Service Equipment” means all and any equipment provided and/or installed at the Site by or on behalf of FluidOne in connection with the Services;

“Site” means the address where the Equipment is to be delivered as detailed in Part B;

“Software Support” means the provision of 8:30am to 17:00pm (Monday to Friday excluding public holidays) help desk support for basic advice on the use and operation of the Third-Party Software and subject to the limitations set out in this Part C and Part B;

“Specification” means the specification (if any) agreed by the Parties in respect of Services or Equipment as defined in Part B or the Order;

“Standard Variable Charge out Rates” means those rates as defined in either Part B or the Order.

“Support Charges” means the charges as set out in Part A and clause 9 below to be paid by the Customer for the provision of support for the Third-Party Software and/or Hardware;

“Support” means the Hardware Support and the Software Support;

“Third-Party Software” means the computer programmes made available to the Customer by FluidOne as agreed in writing from time to time.

“Third-Party Software Licence” means the software licenses governing the use of the Third-Party Software;

“Third-Party Software Terms” means any applicable third-party terms and conditions that apply in respect of the Third-Party Software.

“Warranty Period” means the period of 6 months from delivery or such other period of time specified within Part A or the Order.

1.2 The following rules of interpretation shall apply in this Part C:

1.2.1 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

1.2.2 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.2.3 A reference to writing or written includes emails.

2. The Agreement

2.1 Subject to the terms of this Agreement, FluidOne shall:

2.1.1 Procure the Equipment and deliver it to the Site; and

2.1.2 Carry out the Services.

2.2 This Part C shall:

2.2.1 apply and be incorporated into the Agreement; and

2.2.2 In the event of any inconsistency (save where expressly stated within this Part C), prevail over any inconsistent terms or conditions contained in, or referred to in:

2.2.2.1 Part A;

2.2.2.2 Part B;

2.2.2.3 Any applicable Order; and

2.2.2.4 Any applicable Quote.

2.3 FluidOne shall not, other than in the exercise of its rights under the Agreement or applicable law, interfere with the Customer’s quiet possession of the Equipment.

2.4 Notwithstanding clause 2.2, this Part C shall apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Provided always that FluidOne may withdraw or otherwise amend the Quote at its absolute discretion, where applicable the Quote shall remain valid for a period of 30 days from the date specified on it (Order Period), unless otherwise stated within the Quote.

2.6 If the Customer accepts the position set out in the Quote, it shall be required to raise an Order within the Order Period.

2.7 The Order constitutes an offer by the Customer to purchase the Equipment and/or Services in accordance with this Part C and shall not incorporate any other terms and conditions beyond those set out in the Agreement unless expressly agreed in writing by both parties. The Customer is responsible for ensuring and warrants that the terms outlined in the relevant published Charges list and where applicable, the Quote, the Order and any applicable Specification are complete and accurate.

2.8 FluidOne may reject the Order at its absolute discretion and for any reason whatsoever and the Order shall only be deemed to be accepted when FluidOne’s authorised representative issues a written acceptance of the Order, at which point the Agreement shall come into existence.

2.9 Once accepted, the Order may not be cancelled by the Customer except with the prior agreement of FluidOne in writing. Without prejudice to any further terms that may be agreed between the parties, any such agreement is on the basis that the Customer shall indemnify FluidOne full against all Losses (which for the purpose of this clause shall include the cost of labour and materials, loss of profit, loss of business, loss of goodwill, loss of business opportunity, loss of anticipated saving and any other indirect, special or consequential loss) incurred by FluidOne as a result of such cancellation.

2.10 Any samples, drawings, descriptive matter or advertising produced by FluidOne and any descriptions or illustrations contained in any of FluidOne’s promotional materials are produced for the sole purpose of giving an approximate idea of the Equipment and/or Services referred to in them. They shall not form part of the Contract nor have any contractual force.

2.11 FluidOne’s employees or agents are not authorised to make any representations concerning the Equipment and/or Services unless confirmed by FluidOne in writing. In entering into the Agreement, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

3. Customer’s Obligations

 3.1 The Customer shall complete in a timely manner the obligations set out in this Agreement.

3.2 The Customer acknowledges that FluidOne’s ability to perform its obligations under this Agreement is dependent upon the Customer’s full and timely co-operation with FluidOne and the accuracy and completeness of any information the Customer provides to FluidOne. The Customer undertakes that it shall, without limitation:

3.2.1 Provide free, unrestricted and uninterrupted access to the Site, and any information, documentation, facilities, working space and personnel deemed necessary by FluidOne to enable FluidOne to perform its obligations under the Agreement;

3.2.2 Forthwith upon request by FluidOne, provide FluidOne with originals of all permits, consents and/or other authorisations necessary or desirable to enable FluidOne and/or any of its sub-contractors to perform FluidOne’s obligations under the Agreement;

3.2.3 Prior to FluidOne’s performance of its obligations under the Agreement, provide FluidOne with written identification of any overhead, surface or underground wire, cable, pipe, conduit, channel, obstruction and/or impediment which may restrict, prevent and/or affect the performance of any of FluidOne’s obligations under this Agreement, and the Customer shall if requested by FluidOne (at the Customer’s sole cost and expense) promptly mark, remove and/or divert the same;

3.2.4 Appoint one or more representatives (as reasonably required by FluidOne) in connection with the Services and procure that such representative(s) shall provide professional and prompt liaison with FluidOne and possess the necessary expertise and authority to bind the Customer in respect of its obligations under the Agreement;

3.2.5 Prepare the Site for the delivery of the Equipment and/or performance of the Services in accordance with any requirements stipulated by FluidOne in writing;

3.2.6 Fully comply with the terms of any Third-Party Software License and Acceptable Usage Policy (http://www.fluidone.com/documents/usage.pdf); and

3.2.7 Forthwith notify FluidOne of any problem, error or complaint in respect of the Equipment and the Services giving full details of such problem, error or complaint.

3.3 The Customer shall be solely responsible for:

3.3.1 Maintaining an external procedure for reconstruction of lost or altered files, data and/or programs to the extent deemed necessary by the Customer, and for actually reconstructing any and all such materials.

3.3.2 The obtaining of and any cost and expense of obtaining all consents, permits, authorities and/or approvals that may be necessary or desirable to enable FluidOne and/or any of its subcontractors to fulfil FluidOne’s obligations hereunder.

3.4 The Customer shall be liable for any delays or failures to the implementation or carrying out of the Services caused by the acts or omissions of the Customer. FluidOne shall be entitled to levy additional charges against the Customer for any and all costs, expenses and/or Losses suffered or incurred by FluidOne arising out of or in connection with any such delay(s).

3.5 Save as required by law the Customer shall indemnify FluidOne and keep FluidOne at all times fully and effectively indemnified against any and all Losses suffered or incurred by FluidOne arising out of or in connection with any breach by the Customer of any of its obligations under this Agreement.

3.6 FluidOne will have no liability to the Customer relating to the provision or performance of any Services to the extent that such Services are affected by failure by the Customer to comply with its obligations under this Clause 3 or any Customer obligation set out in the Product Annex.

4. Charges and Payment

4.1 Unless otherwise stated within Part A or Part B or any applicable Order, the Charges include the cost of delivery and installation of the Equipment to the Site.

4.2 The Charges do not include value added tax payable in respect of the Services, Equipment and any additional charges which shall be payable by the Customer in addition and in the manner and at the rate from time to time prescribed by law.

4.3 In addition to the Charges, FluidOne reserves the right to charge the Customer all reasonable expenses incurred by FluidOne in relation the delivery of this Agreement. Such costs shall be invoiced in accordance with this clause 4.

4.4 Unless otherwise stated within Part A or Part B, FluidOne shall raise invoices monthly which will include the Charges for all Services and Equipment as used or ordered in the preceding month. FluidOne will provide any credit issued after this point at its absolute discretion and shall have no obligation to do so under the Agreement.

4.5 Payment of the Charges (less the Deposit) together with value added tax on it shall be paid by no later than the appropriate payment date as set out in Part A or the Order, or within 30 days from the invoice date, whichever is the earlier. For the avoidance of doubt, FluidOne shall not be obliged to carry out any of the Services if the Charges (or any part of it) remain unpaid after its due date for payment.

4.6 Where the Customer disputes any amount due under an invoice, the Customer will notify FluidOne in writing within three calendar months of the date of issue of the relevant invoice, such notification to provide a detailed account of why the invoice is disputed, including all calculations. All undisputed parts of an invoice will be payable in accordance with Clause 4 and the Parties will act in good faith and use reasonable endeavours to resolve the disputed sum following the dispute resolution procedure in Clause 25. A Customer may not dispute any invoices that are more than three calendar months old, and the Customer will be deemed to have accepted such invoices as correct after such period.

4.7 FluidOne reserves the right to charge the Customer interest in respect of the late payment of any sum due under this Agreement (as well after as before judgment) at the rate of at the rate of five (5) percent per annum above the base rate of NatWest plc.

4.8 The Customer agrees that FluidOne may without notice assign to the benefit of a third Party (‘Assignee’), its rights, title and interest, in whole and in part to receive the Charges and any other payments made by the Customer pursuant to an Order.

4.9 FluidOne will also charge for debt collection should it be necessary, following failure to pay by the Customer. This will be carried out by an agency registered with the Financial Conduct Authority. In this event the Customer agrees that additional Charges will be levied to cover the costs of the debt collection agency.

4.10 FluidOne reserves the right to modify the Charges in response to a change of Applicable Laws that materially affects the cost of delivery or any increase in the cost of delivery of the third party Services that FluidOne relies on, FluidOne will provide notice of the change and/or any consequent increase/pass through in the Charges along with a written explanation and the Charges will be amended from the date of such notice.

4.11 In addition to the rights set out in the paragraph above, FluidOne shall be entitled to increase the Charges for any Service once in any Year by serving not less than thirty (30) days’ written notice on the Customer, provided that the percentage increase in the relevant Charge is no greater than the percentage increase in the CPI or 5%, whichever is higher.

5. Delivery and Installation

5.1 Delivery of the Equipment shall be made by FluidOne or, where applicable, any third-party instructed to deliver the Equipment on FluidOne’s behalf. FluidOne shall use reasonable endeavours to effect delivery of the Equipment by the Delivery Date, provided always that the Delivery Date is an estimate only and time shall not be of the essence in this regard.

5.2 The Equipment may be delivered by FluidOne in advance of the quoted Delivery Date on giving reasonable notice to the Customer.

5.3 FluidOne may deliver the Equipment by separate instalments. Where applicable, each separate instalment shall be paid for in accordance with the provisions of the Agreement.

5.4 The Customer shall be responsible (at the Customer’s cost) for preparing the Site for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment. If FluidOne is prevented from carrying out delivery or installation on any specified date because no such preparation has been carried out, FluidOne may levy additional charges to recover any Loss arising from this event.

5.5 Unless otherwise agreed in writing by FluidOne, FluidOne shall not be obliged to install the Equipment (or any part of it) at any other location other than the Site.

5.6 Notwithstanding applicable Warranty Periods in respect of any Equipment supplied, acceptance of the Equipment shall take place if installation is:

5.6.1 Not required by the Customer, once the Equipment has been successfully delivered to the Site; or

5.6.2 Required by the Customer, once, in FluidOne’s reasonable determination, the Equipment has been properly installed at the Site and that it is functioning materially in accordance with the Specification and any supporting documentation.

5.7 If the Customer fails to accept physical delivery of the Equipment on the Delivery Date, then, except where such failure is caused by FluidOne’s failure to comply with its obligations under the Agreement:

5.7.1 The Equipment shall be deemed to have been delivered at 9:00am on the Delivery Date; and

5.7.2 FluidOne shall store the Equipment until delivery takes place and charge the Customer for all related Losses (including insurance) that FluidOne may suffer as a result.

6. Warranty

6.1 FluidOne warrants that on delivery and for the duration of the Warranty Period, any Hardware shall:

6.1.1 Conform in all material respects with any applicable Specification;

6.1.2 Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended);

6.1.3 Be free from material defects in design, material and workmanship;

6.1.4 Comply with all applicable statutory and regulatory requirements; and

6.1.5 Be fit for any purpose held out by FluidOne.

6.2 Subject to clause 6.3, if:

6.2.1 The Customer gives notice in writing to FluidOne during the Warranty Period within a reasonable time of discovery that some or all of the Hardware does not comply with the warranty set out in clause 6.1;

6.2.2 FluidOne shall be given a reasonable opportunity of examining such Hardware; and

6.2.3 The Customer (if asked to do so by FluidOne) must return such Hardware in the same condition that it was delivered to the Customer, to FluidOne’s premises at the Customer’s cost (such reasonable return costs to be refunded to the Customer if the Hardware is found not to comply with the warranty set out at clause 6.1),

FluidOne shall, at its option, repair or replace the defective Hardware, or refund the Charges of the defective Hardware in addition to any reasonable return costs in accordance with clause 6.2.3.

6.3 FluidOne shall not be liable for the Hardware’s failure to comply with the warranty set out in clause 6.1 in any of the following events:

6.3.1 The Customer makes any further use of such Hardware after giving notice in accordance with clause 6.2;

6.3.2 The defect arises because the Customer failed to follow FluidOne’s (or any applicable manufacturer of the Hardware’s) oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Hardware or (if there are none) good trade practice regarding the same;

6.3.3 The defect arises as a result of FluidOne following any drawing, design or Specification supplied by the Customer;

6.3.4 The Customer alters or repairs such Hardware without the written consent of FluidOne;

6.3.5 The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

6.3.6 The Hardware differs from the Specification as a result of changes made to ensure it with applicable statutory or regulatory requirements.

6.4 Except as provided in this clause 6, FluidOne shall have no liability to the Customer in respect of the Hardware’s failure to comply with the warranty set out in clause 6.1.

6.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreement.

6.6 This Part C shall apply to any repaired or replacement Hardware supplied by FluidOne.

7. Title to and risk in the Equipment

7.1 The risk in the Equipment shall pass to the Customer on its successful delivery accordance with clause 5 (Delivery and Installation).

7.2 Title to any Equipment shall not pass to the Customer until the date that the Charges for that Equipment and value added tax thereon has been paid in full to FluidOne. Title in any Third-Party Software shall remain with the licensor (or such party as may be identified in the Third-Party Software Licence).

7.3 All IPR in any Deliverables produced by FluidOne shall remain the exclusive property of FluidOne and no licence in respect of any Deliverables is granted to the Customer under the Agreement.

8. Third-Party Software 

8.1 In order for the Customer to use the Hardware the Customer may be required to use Third-Party Software. In such instances, the Customer warrants and undertakes that it shall comply with any applicable Third-Party Terms and the Customer expressly acknowledges that FluidOne shall have no responsibility whatsoever for any Losses suffered by the Customer as a result of the Customer’s use of any Third-Party Software.

8.2 FluidOne may treat the Customer’s breach of any Third-Party Terms as a breach of the Agreement.

8.3 The Customer acknowledges that all IPRs in any applicable Third-Party Software belong to the relevant third-party owner(s), and the Customer shall have no rights in or to that Third-Party Software other than the right to use it in accordance with the terms of the Agreement and the any applicable Software Licence.

8.4 The Customer shall indemnify FluidOne, keep FluidOne indemnified and hold FluidOne harmless against any Losses which FluidOne may suffer or incur as a result of the Customer’s:

8.4.1 Breach of any Third-Party Terms;

8.4.2 Possession and use of any software (including any Third-Party Software),howsoever arising and unless otherwise set out in writing by FluidOne, FluidOne provides no warranty or assurances that the Customer’s use of any Third-Party Software will:

8.4.3 Not infringe the rights (including the IPRs) of any third party;

8.4.4 Conform to any Specification; or

8.4.5 Be suitable for the Customer’s intended use of any Hardware.

9. Support Charges and automatic renewal

9.1 Unless otherwise agreed in an Order, Services will continue for a period of 12 months from the date of the Order acceptance or signature; and

9.1.1 Shall (subject to clause 14) automatically renew for a further period of equal to the original term on a rolling basis unless terminated by either Party on giving no less than three months’ notice in writing to the other prior to the date of renewal.

9.2 Unless specified as a Service within the Agreement, FluidOne will not keep any form of asset register for the Customer and such will remain the responsibility of the Customer at all times.

9.3 Calls made to FluidOne in respect of the Support (or any other matter relating to the Agreement) may be recorded or monitored for record keeping, training or quality assurance purposes. By using the telephone services as provided by FluidOne the Customer expressly consents for FluidOne to record such calls.

10. Support

10.1 FluidOne shall provide the Support in accordance with Part B or the Order (as the case may be) in all material respects.

10.2 Any Support requested by the Customer in addition to those provided for in Part B or the Order shall be subject a separate written agreement between the parties and, unless otherwise agreed, FluidOne’s Standard Variable Charge Out Rates. For the avoidance of doubt, FluidOne shall only be obligated to provide any additional Support where a written agreement between both parties has been entered.

10.3 Where FluidOne is required to attend the Site(s) to perform Support, the Customer shall provide free, safe and unencumbered access to, egress from and movement around the Site(s) to FluidOne.

10.4 Where FluidOne is performing or has performed the Support in circumstances where it is established that the Equipment was not in Good Working Order due to any of the misuse, FluidOne may charge, and the Customer shall pay any applicable additional charges as invoiced to it by FluidOne in respect of that Support.

10.5 The ‘under-use’ of any allowances under this Agreement by the Customer shall not result in any credit from FluidOne of any kind.

11. Support warranties

11.1 The FluidOne shall use its reasonable endeavours to meet any timeframes and/or service levels relating to Support quoted in Part B or the Order, but any such timeframes shall be estimates only and time shall not be of the essence for the provision of the Support under the Agreement.

11.2 Any request for Support by the Customer which are not specified in Part B or the Order shall be subject to clause 10.2 and dealt with by FluidOne on a reasonable endeavours basis.

11.3 FluidOne warrants that Support shall be provided:

11.3.1 By an appropriate number of suitably qualified and experienced personnel;

11.3.2 Using reasonable skill and care; and

11.3.3 In accordance with all applicable laws and regulations in force from time to time.

11.4 FluidOne shall accept no responsibility for goods or services supplied by third parties. Where the Customer agrees to take such services, the Customer is responsible for agreeing to said goods or services’ terms and conditions and it is the Customer’s responsibility to ensure it has read and understood those terms and conditions.

12. Data protection

12.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 12 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under the Data Protection Legislation.

12.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the FluidOne is the Processor. The scope, nature and purpose of processing by FluidOne, the duration of the processing and the types of personal data and categories of data subject are set out below:

12.3 Without prejudice to the generality of Clause 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the FluidOne for the duration and purposes of this Agreement.

12.4 Without prejudice to the generality of Clause 12.1, the FluidOne shall, in relation to any Personal Data processed in connection with the performance by FluidOne of its obligations under this Agreement:

(a)           process that Personal Data only on the documented written instructions of the Customer unless the FluidOne is required by Domestic Law to otherwise process that Personal Data. Where the FluidOne is relying on Domestic Law as the basis for processing Personal Data, the FluidOne shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the FluidOne from so notifying the Customer;

(b)           ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c)           ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d)           not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained, and the following conditions are fulfilled:

(e)           the Customer or the FluidOne has provided appropriate safeguards in relation to the transfer;

(f)            the data subject has enforceable rights and effective legal remedies;

(g)           FluidOne complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(h)           FluidOne complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

(i)            assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(j)            notify the Customer without undue delay on becoming aware of a Personal Data Breach;

(k)           at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Domestic Law to store the Personal Data; and

(l)            maintain complete and accurate records and information to demonstrate its compliance with this Clause 12.

12.5 The Customer consents to FluidOne appointing a third-party processor of Personal Data under this Agreement on the basis that FluidOne has entered or (as the case may be) will enter with the third-party processor into a written agreement.

13. Escalation procedures

13.1 In the event that a Customer is dissatisfied with any aspect of the Support, the following procedures shall be followed:

13.1.1 The Customer shall contact the member of staff within FluidOne who dealt with the Customer’s problem to discuss appropriate solutions;

13.1.2 In the event that this does not resolve the Customer’s issue, the Customer should raise its concerns to FluidOne’s Service Desk Manager;

13.1.3 In the event that this does not resolve the Customer’s issue, the Customer should raise its concerns to FluidOne’s Operations Director; and

13.1.4 In the event this does not resolve the Customer’s problem, the Customer should raise its concern with the director within FluidOne that the Customer normally deals with. If the Customer’s preferred director contact is unavailable, the Customer may ask to speak to any other director of FluidOne.

13.1.5 In the event this does not resolve the Customer’s problem, Clause 25 (Dispute Resolution) shall apply.

14. Termination and Suspension

14.1 Subject to Clause 9, Each Order will commence upon the Order Committed Date and will continue for the applicable Initial Term set out in the Quote or an Order and/or the Product Annex and thereafter for a Renewal Term and each successive Renewal Term unless and until terminated in accordance with Clause 9 or the terms of the relevant Product Annex (“Term”).

14.2 FluidOne will not accept any notice to terminate this Agreement (and this Agreement cannot be terminated by the Customer by notice) where overdue undisputed invoices remain unpaid. Such invoices must be settled in full prior to termination. Current invoices will not prevent termination provided they are received within the thirty (30) calendar day payment term.

14.3 Without prejudice to its other rights or remedies hereunder or generally at law, FluidOne may suspend provision of the Services or any part thereof without liability to the Customer:

(a)           forthwith on written notice to the Customer (i) where FluidOne reasonably believes the Customer is in breach of Clause 3; and/or (ii) FluidOne has a right to terminate the Agreement or any Order, irrespective of whether it delays or waives for a time its right to do so; and/or (iii) the Customer fails to pay any Charges in accordance with the relevant Order, subject to FluidOne giving the Customer at least fourteen (14) days prior written notice of the breach and the Customer fails to make payment during the notice period and such notice expires; and/or (iv) FluidOne is required to comply with an order, instruction or request of a Government, court, agency or other competent administrative or regulatory authority, provided that FluidOne has given the Customer reasonable written notice; and/or (v) where FluidOne reasonably believes the Customer is in breach of any of the Customer obligations set out in the relevant Product Annex; and/or

(b)           where temporary suspension of Services is required for the purpose of operational or technical reasons. FluidOne will reinstate the Services suspended under this Clause as soon as reasonably practicable

14.4 FluidOne will reinstate the Service suspended under Clause 14.3 (a) in its absolute discretion which will in any event be subject to payment by Customer of an admin charge of £150 and any direct pass-through costs incurred by FluidOne as a result of suspension and/or reinstatement. If FluidOne has not reinstated a Service suspended under Clause 14.3 within a period of thirty (30) days from the date of suspension, the Order relating to such Services will terminate automatically at the expiry of such 30-day period, in which event the provisions of Clause 14 will apply.

14.5 FluidOne will be entitled to terminate, suspend or modify a Service and related Order, without any liability, if any consent, licence or authorisation which FluidOne requires in order to provide that Service is not obtained, is withdrawn or otherwise cancelled or the provision of the Service would result in FluidOne being in breach of contract to a third Party. In the event of a modification to the Service that is materially detrimental to the Service, the Customer will have the right to terminate the Order in question upon written notice to FluidOne, such notice to have immediate effect. FluidOne will use its reasonable endeavours to give the Customer reasonable notice prior to such termination or modification taking effect. Any Charges paid in advance for the terminated Services in respect of the period after termination will be refunded to the Customer save to the extent that these are in respect of committed Carrier charges that cannot be recovered by FluidOne from the Carrier.

Disputed Invoices

14.6 If there is a valid dispute relating to any final invoice, such dispute must be notified in writing to accounts@fluidone.com. Any credit due will be applied by FluidOne to the final invoice before termination of Service. If a refund is due, this will be paid by FluidOne by BACS transfer to a nominated bank account supplied in writing by Customer.

Termination for Customer Fault

14.7 FluidOne may terminate an Order and/or this Agreement by written notice, to take effect forthwith if:

(a)           the Customer commits a material breach of any Order or this Agreement and if capable of remedy such breach is not remedied within a period of seven (7) days following a written request by FluidOne to remedy;

(b)           the Customer has provided inaccurate or misleading information concerning its registered details or financial standing, or FluidOne has reason to believe is likely create disruption or harm to the Network;

(c)           the Customer fails to pay any overdue amount within thirty (30) days of the date of a reminder notice and/or fails at any time to comply with Clause 4.

(d)           the Customer fails or is unable to pay its debts when they become due;

(e)           the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(f)            the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that Customer with one or more other companies or the solvent reconstruction of that Customer;

(g)           the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

(h)           a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(i)            an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company, partnership or limited liability partnership);

(j)            the holder of a qualifying floating charge over the assets of that Customer (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

(k)           a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

(l)            a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer's assets and such attachment or process is not discharged within 14 days;

(m)          any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.7 (c) to Clause 14.7 (j) (inclusive);

(n)           the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

(o)           the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or

(p)           there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).

14.8 FluidOne may terminate a Order and/or this Agreement by written notice, to take effect forthwith if any material breach of the Acceptable Usage Policy is committed (excluding for the avoidance of doubt any technical breaches that are not knowingly made by the Customer or do not cause FluidOne any damage).

15. Consequence of Termination

15.1 On termination of the Agreement for any reason, the Customer shall immediately pay to FluidOne all of FluidOne’s outstanding unpaid invoices and interest.

15.2 Without prejudice to clause 15.1 title to any Hardware (and, where applicable, Deliverables) which the Customer has not paid in full for shall be retained by FluidOne and FluidOne reserves the right to recover any Hardware (and Deliverables) held, but not paid for, by the Customer.

15.3 Termination of the Agreement shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

15.4 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

16. Confidentiality and Non-Solicitation

16.1 Each Party will: (i) keep all Confidential Information relating to the other Party confidential; (ii) will disclose such Confidential Information only to its personnel having a need to know for the purposes of this Agreement; and (iii) will use such Confidential Information only for the purpose of exercising its rights or performing its obligations hereunder.

16.2 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 16.2, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.

16.3 The Customer will keep confidential all passwords, logon codes and other access methods. FluidOne will not be liable for any disclosure by Customer of the same, whether intentional or otherwise.

16.4 The Customer and FluidOne will keep confidential the contents of this Agreement and document. No part of this Agreement or document contents may be used, copied, disclosed or conveyed to any person in any manner whatsoever without prior written permission from the other Party, save to the Customer’s or FluidOne’s advisors.

16.5 With regard to the Freedom of Information Act and where applicable the Freedom Of Information Scotland Act (the “Acts”), if any requests for information are received in respect of any dealings FluidOne has with the Customer including in respect of any contract that FluidOne has agreed or may agree with the Customer, expect that any non-public financial information, the Charges payable for goods and services supplied or to be supplied together with terms and conditions of trade are treated as “trade secrets” the disclosure of which would have a material adverse effect on our commercial interests because of a reduction in our “competitive edge” and therefore such information should be considered exempt from disclosure in accordance with the exemptions contained in the Acts including in Part 2, Section 43 in the case of the Freedom of Information Act and Section 33 in the case of the Freedom of Information Scotland Act. The Customer will consult with FluidOne regarding any requests for information received by the Customer which relate to any dealings FluidOne has with the Customer and which may encompass such trade secrets save as required by law.

16.6 This Agreement may be amended, modified, or varied only by an agreement in writing signed by a statutory director listed on Companies House from both Parties.

16.7 Neither Party will act in a manner which expresses or implies a relationship other than that of independent contractor or have any authority to bind the other Party.

16.8 For the term of this Agreement (and if expiring at a later date, from the term of any Order) and a period of one year thereafter, the Customer and their Affiliates will not entice or endeavour to entice away from FluidOne or Employ, or make any offers of Employment to, any Significant Person who is or has been a director of or employed or engaged by FluidOne at any time during the term of this Agreement or term of any Order, except as may be agreed between the Parties. "Employ" or “Employment” means the engagement of such a person as an employee, director, subcontractor or independent contractor to carry out duties which are identical or substantially similar to the duties for which such person has been employed or engaged by FluidOne to carry out. For the purpose of this Agreement, “Significant Person” will mean any director of FluidOne or employee or sub-contractor of FluidOne holding a sales, operational or managerial position (excluding for the avoidance of doubt any FluidOne personnel having a purely secretarial role) and having a material involvement with the Customer at any time during the period of 12 months prior to any such enticement, offer of Employment or Employment.

16.9 The estimate of the impact that breach of Clause 16.8 would have is herein specified as liquidated damages in the amount of one year's salary or remuneration of any such employee or director at the date of leaving FluidOne to join the other Party. The Parties accept that this is a reasonable estimate of loss, and each Party agrees to pay the same in the event of each and every breach by it of this Clause 16. This provision is without prejudice to the right of each Party to seek injunctive relief.

17. Representations, Warranties and Limitations

17.1 FluidOne warrants that it will carry out the Services materially as described in any Specification.

17.2 FluidOne shall perform the Services with reasonable care and skill.

17.3 For the avoidance of doubt and without prejudice to the generality of the foregoing, FluidOne gives no warranty that:

17.3.1 The operation of the whole or any part of the Equipment will be uninterrupted or error free;

17.3.2 The Equipment will (in whole or in part) be compatible with future FluidOne product(s), Services and/or with any Third-Party Software, services and/or system(s); and

17.3.3 Any Third-Party Software will operate in hardware and/or Software combinations selected by Customer.

17.4 For the avoidance of doubt it is the responsibility of the Customer to back-up any information or data that is to be transferred on to the Equipment and to check the accuracy and integrity of such information or date once it has been transferred.

18. Limitation of liability

18.1 Nothing in this Agreement will exclude or limit either Party’s liability (i) for death or personal injury caused by or arising from negligence; or (ii) for fraud or fraudulent misrepresentation; or (iii) in respect of any other matter which for which liability cannot, be excluded or limited by applicable law.

18.2 Subject to Clause 18.1, FluidOne’s aggregate liability for failure to provide any part of the Service in accordance with the Service Levels and SLA where applicable will be limited to the Service Credits set out in the Service Level Agreement.

18.3 Subject to Clause 18.1, and except as provided in Clauses 18.2, 18.4, 18.5 and 18.6, FluidOne’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Charges paid during the 12 months immediately preceding the date on which the claim arose.

18.4 Subject to Clause 18.1, except in respect of the Service Credits stated and paid in accordance with the Service Level Agreement, FluidOne shall have no liability, in any circumstances, for any loss or damage, whether direct or indirect, which results or may result from:

(a)           Customer’s access to, or inability to access, the internet or use therefore for any purpose whatsoever; and/or

(b)           any reliance on or use of information, service or goods purchased on or through the Service or the internet.

18.5 Subject to Clause 18.1, FluidOne shall have no liability in contract, tort (including negligence or breach of statutory duty) for:

(a)           any loss of actual or anticipated profits, loss of contracts, downtime costs, loss of opportunity, loss of reputation, loss of business, loss of goodwill, loss of anticipated savings or wasted expenditure;

(b)           losses or claims relating to the transmission or receipt of infringing or unlawful information or content of whatever nature transmitted via the Service;

(c)           without derogating from the obligations contained in Clause 16, loss of, damage to or corruption of data, or files, stored, transmitted, or used on the Service or the FluidOne Network;

(d)           loss or damage suffered as a result of any virus or other hostile computer program, denial of service, spamming, or hacking being introduced via the Service;

(e)           pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.

18.6 Notwithstanding any other provision of this Agreement or any provision contained in a Order, neither Party will be entitled to recover compensation or make a claim under this Agreement or under an Order in respect of any loss that it has incurred to the extent that it has already been compensated in respect of that loss pursuant to this Agreement, under a Order, or otherwise.

18.7 Each Party (“Party 1”) will notify the other Party (“Party 2”) in writing of any actual or alleged failure, defect or issue with the Service that may give rise to a claim against Party 2, as soon as reasonably practicable. Without prejudice to the foregoing, Party 2 will not be liable to Party 1 in respect of any such failure, defect or issue unless (i) the relevant failure, defect or issue has been notified by Party 1 to Party 2 within 60 days of Party 1 becoming aware of the failure, defect or issue; and (ii) Party 2 has been given a reasonable opportunity to rectify it.

18.8 Each Party will notify each other of their intention to bring a claim in connection with this Agreement (other than any claim for Service Credits which will be governed by the Service Level Agreement) within 12 months of the failure or circumstances giving rise to the claim taking place Subject to Clause 18.1, neither Party will be liable to the other in respect of any claim or claims that have not been notified to a Party in accordance with this Clause 18.8.

18.9 The Customer is advised to obtain insurance in respect of any liability excluded by FluidOne hereunder, including but not limited to the loss or corruption of data.

18.10 Risk of Loss Insurance – the Customer will take out third-party insurance with a reputable insurer approved by FluidOne in respect of (and will accept responsibility for any loss or damage to) the Service Equipment during the Initial Term. Customer will provide FluidOne with a copy of such insurance upon request.

18.11 If any third party makes a claim, or notifies an intention to make a claim, against the indemnified Party under any indemnity provided under this Agreement (“Party 1”) which may reasonably be considered likely to give rise to a liability under the indemnity (“Claim”), Party 1 will:

(a)           as soon as reasonably practicable, give written notice of the Claim to the indemnifying Party (“Party 2”), specifying the nature of the Claim in reasonable detail;

(b)           not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Party 2 (such consent not to be unreasonably conditioned, withheld or delayed);

(c)           give Party 2 and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Party 1, so as to enable Party 2 and its professional advisers to examine them and to take copies (at Party 2's expense) for the purpose of assessing the Claim; and

(d)           subject to Party 2 providing security to Party 1 to Party 1's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as Party 2 may reasonably request to avoid, dispute, compromise or defend the Claim.

19. Intellectual Property Rights

19.1 FluidOne shall retain ownership of all Intellectual Property contained in the Services together with Intellectual Property in all training materials (“Deliverable”) provided by FluidOne to the Customer.

19.2 The Customer will notify FluidOne immediately if the Customer becomes aware of any unauthorised use of the Services or any of the Intellectual Property relating to the Services and will provide reasonable assistance to FluidOne at FluidOne’s cost in defending FluidOne’s rights. The Customer will not have any rights to use the mark or logo of FluidOne or any member of the FluidOne Group, unless otherwise agreed in writing.

19.3 Any Intellectual Property in the Customer Equipment will remain the property of the Customer and/or its licensors.

19.4 Customer:

(a) warrants that the receipt of the Services in accordance with the terms of any Order does not and will not infringe any Intellectual Property rights of FluidOne or any third party; and

(b) will indemnify FluidOne against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred or paid by FluidOne arising out of or in connection with any claim brought against FluidOne for actual or alleged infringement of a third party’s Intellectual Property arising out of, or in connection with, the Customer’s receipt or use of the Services and the Deliverable.

20. Force majeure

20.1 Neither Party will have any liability or be deemed to be in breach of this Agreement or the Order, for any delays or failures in performance of this Agreement which results or arises from circumstances beyond the reasonable control of that Party, including without limitation acts of God; epidemic or pandemic and including, without limitation, any effects arising from or in connection with an epidemic or pandemic, including, but not limited to, any actions, recommendations, announcements or restrictions, related to its subject matter (whether made by a government body, authority, public health organisation or other similar official body) which affects a Party’s performance of its obligations under this Agreement; regulations, or laws of the government; war; civil commotion; destruction of network or connection facilities or materials by fire, flood, earthquake, explosion, storm or other natural disaster; labour disturbances; epidemic; pandemics and failure of public utilities or common carriers (“Force Majeure Event”).

20.2        Provided it has complied with Clause 20.3, if a Party is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event, each Party shall not be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations. The time for performance of such obligations shall be extended accordingly.

20.3 Each Party shall immediately notify the other Party of a Force Majeure Event and of the period for which such inability is expected to last.

20.4 Each Party shall use reasonable endeavours to minimise the duration of any failure to perform its obligations and where the fault cannot be rectified within 30 days the Parties agree to discuss termination of any subsisting Agreement or Order.

20.5 For the avoidance of doubt a Force Majeure Event shall include circumstances where FluidOne personnel must self-isolate under government guidance or where such personnel contract Covid-19. Where personnel must self-isolate, FluidOne’s obligations under the Agreement shall be extended accordingly.

21. Confidentiality

21.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 21.2.

21.2 Each party may disclose the other party’s confidential information:

21.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 21; and

21.2.2 As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

21.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.

22. Notices

22.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be:

22.2 Delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

22.3 Sent by email to contact details specified in the Proposal or Order or otherwise as notified previously by that party.

22.4 Any notice shall be deemed to have been received:

22.5 If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

22.6 If sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or

22.7 If sent by email, at 9.00 am on the next Business Day after transmission.

22.8 This clause does not apply to service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.

23. Anti Bribery

23.1 The Customer will, and procures that Authorised Personnel will:

(a)           Comply with all applicable Bribery Act;

(b)           Not offer, promise, give, request, agree to receive, receive or accept a bribe or financial or other advantage or commit any corrupt act;

(c)           Have and will maintain in place throughout the term of all Orders its own policies and procedures, including adequate procedures under the Bribery Act, to ensure compliance with Bribery Act and relevant policies, and will enforce them where appropriate;

(d)           Not do or omit to do any act or thing which constitutes or may constitute an offence under Bribery Act;

(e)           Not do or omit to do any act or thing which causes or may cause FluidOne and/or its group to be in breach of and/or commit an offence under any Bribery Act;

(f)            Without prejudice to Clause 16, not do or omit to do any act or thing which causes or may cause FluidOne or any member of its group to be guilty of an offence under section 7 of the Bribery Act (or would or may do so if FluidOne was unable to prove that it had in place adequate procedures designed to prevent persons associated with it from undertaking such conduct); and

(g)           Provide FluidOne and any member of it group (at the Customer's cost) with such reasonable assistance as it may require from time to time to enable it to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with any Bribery Act.

24. Sub-Contractors

24.1 FluidOne shall use commercial endeavours to manage its sub-contractors who it uses to carry out the Services in a manner consistent with a competent telecommunications service provider. FluidOne shall remain responsible and liable for the acts of omissions of sub-contractors who have been instructed directly or indirectly by FluidOne how to install the Service or any part of the Service. However, it is acknowledged and agreed by the parties that FluidOne shall not, to the extent permitted by law, be liable to the Customer for claims by the Customer in contract, tort (including negligence) or breach of statutory duty for any acts or omissions of any FluidOne sub-contractors during installation of any part of the Service for the Customer at the Service Location when direct instruction on how to install the Service or any part of the Service has been provided by the Customer (“Installation Claims”), save that this Clause 24.1 shall not exclude FluidOne’s liability to Customer in respect of (all or part of) Installation Claims to the extent that FluidOne is able to seek and obtain reimbursement from the relevant sub-contractor in respect of (all or part of) such Installation Claims pursuant to the relevant sub-contract.

24.2 FluidOne may assign the benefit and/or burden of this Agreement and any Order upon written notice to Customer and may subcontract the provision of all or any part of the Service or Services to third parties.

24.3 Customer shall not assign, novate or grant an encumbrance over this Agreement, any Order, Product Annex and/or Order or the rights and/or obligations hereunder, nor shall the Customer encumber, lease or lend the Service Equipment or CPE or submit them to be used by anyone other than the Customer’s employees or agents without the prior written consent of FluidOne.

24.4 The Customer agrees that FluidOne may without notice assign to and/or for the benefit of a third party Assignee, its rights, title and interest, in whole and in part, to receive the Charges and any other payments made by the Customer pursuant to the Order.

24.5 Where FluidOne assigns any of its rights, title and interest in the Charges to an Assignee pursuant to Clause 24.4:

(a)           the Assignee will not be liable for or be required to perform any of FluidOne’s obligations to Customer under the Agreement, Product Annex and/or Order, such obligations being retained by FluidOne.

(b)           For the avoidance of doubt, Service Credits, rebates or Charges reductions, if applicable, will be independent of the Customer’s obligation to pay the Charges and will not have the effect of reducing the Charges payable.

24.6 Customer’s obligation to pay the Charges and liability therefor will continue notwithstanding, and will not be affected by, released and/or reduced as a result of any of the following: (i) any breach under or in connection with the Agreement, Product Annex and/or Order and/or any wrongful or negligent act or omission by or on behalf of FluidOne; (ii) any dispute between FluidOne and the Customer; (iii) any change or revision to the Agreement, Product Annex and/or Order; (iv) any termination or suspension of the Agreement, Product Annex and/or Order (or any function thereof), in each case in whole or in part for any reason whatsoever; (v) any accident or damage to and/or loss of any Service Equipment for any reason whatsoever. This will not affect any right the Customer may have to bring a claim in damages against FluidOne directly.

25. Dispute Resolution

25.1 If any dispute arises in connection with any part of the Order, the Parties will first attempt to settle it as follows:

(a)           the Parties will attend a conference call between a member of FluidOne’s finance team and the Customer’s account manager within 7 Working Days of the dispute arising;

(b)           failing resolution of the dispute at such conference call the Parties will hold a meeting between the respective account managers within 7 Working Days of the above conference call, or where an invoice is disputed, the date of notification of such dispute by the Customer;

(c)           failing resolution of the dispute at such meeting, the matter will be escalated to a meeting between senior director of each Party which will be held within 7 Working Days of the first meeting.

25.2 Each Party will use their respective reasonable endeavours to consult or negotiate with each other in good faith, and recognising their mutual interests, attempt to reach a just and equitable settlement satisfactory to both Parties.

25.3 If the Parties are unable to settle any dispute by negotiation within the earlier of 21 Working Days of the dispute arising or within 3 Working Days of the conclusion of the second meeting, the Parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (ADR) (use Ombudsman Services) procedure to be completed within a further 45 days, or in default of agreement, through an ADR procedure as recommended to the Parties by the President or the Deputy President, for the time being, of the Chartered Institute of Arbitrators. The costs of the ADR procedure and the Arbitrator will be borne between the Parties equally.

25.4 If the Parties are unable to settle any dispute by negotiation through ADR or either Party refuses or declines to follow ADR procedure as required under Clause 25.3, either Party may exercise its rights and remedies under this Agreement and to take such proceedings as it deems necessary pursuant to Clause 25.

25.5 Nothing in this Clause 25 will prevent either Party from seeking injunctive or similar relief at any time if such action is necessary to preserve or protect its commercial or business interests under the Order or this Agreement.

26. General Terms

26.1 This Agreement and each Order contains the entire agreement between the Parties in respect of the Services and supersedes and replaces any prior written or oral agreements, representations, or understandings between the Parties.

26.2 Save as expressly set out in this Agreement or any Order, all representations, warranties, conditions or other terms (whether written or oral, express or implied by statute, common law or otherwise) including, without limitation, implied terms as to fitness for purpose, quality or merchantability are hereby excluded.

26.3 If any provision of this Agreement is held by a court or any governmental agency or authority to be invalid, void, or unenforceable, the remainder of this Agreement will nevertheless remain legal, valid, and enforceable.

26.4 FluidOne’s failure to exercise or enforce, or any delay in exercising or enforcing, any right or benefit conferred by this Agreement will not be deemed to be a waiver of any such right or benefit nor operate so as to bar the exercise or enforcement thereof or of any other right or benefit on any later occasion.

26.5 No variation of this Agreement or any Order will be effective unless it is in writing and signed by the Parties. their Authorised Representatives or Authorised Personnel.

26.6 Save where expressly provided otherwise, for the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not Party to it any right to enforce any of its provisions.

26.7 Nothing in this Agreement will be construed as creating any form of partnership or relationship of agency or joint venture between the Parties.

26.8 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

26.9 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

26.10 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

27.Governing law and Jurisdiction

27.1 This Agreement along with the applicable Product Annex and Order will be governed and construed in accordance with the Laws of England and Wales, and the Parties irrevocably submit to the exclusive jurisdiction of the English courts.

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