Terms & Conditions - UK

YELLOWCOM GENERAL TERMS OF BUSINESS

*THIS IS A BUSINESS-TO-BUSINESS CONTRACT (B2B).  IF YOU ARE A MICRO / SMALL BUSINESS, OR A NOT-FOR-PROFIT ENTERPRISE).  PLEASE SEE APPENDIX B – BUSINESS CUSTOMER SIZE-CLASSIFICATION FORM AND APPENDIX C – WAIVER NOTICE FOR SMALL, MICRO AND NOT-FOR-PROFIT ENTERPRISES.

Yellowcom and the Customer hereby agree as follows:

Background:

• Yellowcom Ireland AL Limited, a wholly owned Irish subsidiary company of Yellowcom Limited (“Yellowcom“) is a telecoms service provider, offering bespoke telecoms solutions to businesses in the Republic of Ireland.
• These Terms and Conditions (“Terms“) set out the legal relationship between Yellowcom and the Customer and are the basis upon which Yellowcom will provide the service and any associated equipment to the Customer.

NOW IT IS HEREBY AGREED as follows:

“Account/Billing Manager” shall mean the dedicated individual of Yellowcom who is primarily responsible for the relationship between the parties for Yellowcom;

“Additional Services” means any services outside the scope of the Services, which Yellowcom has agreed to provide to the Customer and Customer’s current and future Affiliates under this Agreement;

“Affiliate(s)” means in relation to each of the parties, any company which is a subsidiary or holding company of that party or a subsidiary of such holding company (as such terms are defined by Section 8 of the Companies Act 2014) or any company which is from time to time under the common control of that party;

“Agreement” means this contract between Yellowcom and the Customer, incorporating these Terms, the Order Form, the SLA, Special Conditions and any applicable service documents as the case may be;

“Charges” means the charge for the Service(s) as set out in the Order Form and any other sums which become due including but not limited to any charges incurred or committed to by Yellowcom with third party suppliers and / or any labour charges (the latter is as set out in the Yellowcom Labour Price List (found at https://yellowcom.co.uk/labour-price-list/);

“Confidential Information” means any and all information of a business, financial or technical nature, disclosed to the other party by or on behalf of the first party after the date of this Agreement which, for the avoidance of doubt, includes Software supplied by the Customer, whether such information is marked as confidential or otherwise;

“Customer” means the entity listed on the Order Form;

“Default” means a breach by either party of its material contractual obligations as set out in this Agreement;

“Deliverables” means anything delivered or to be delivered under this Agreement;

“Data Protection Legislation” Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), the Data Protection Acts 1988 and 2018, any other relevant data protection and privacy.

“Early Termination Charges” means the amount the Customer is liable to pay for exiting the Agreement or any applicable order prior to the end of the Term;

“Effective Date” means the date provided at the start of this Agreement which shall also be the date the Order Form is signed;

“Equipment” means any equipment (including any software) that Yellowcom supplies for Customers use as part of a Service;

“Term” means the period during which the Customer has committed to procure the Services from Yellowcom, calculated from the Service Commencement Date for that Service;

“IPR” means intellectual property rights including copyright, database rights, trademarks, design rights, patents and/or know how;

“Maintenance Services” means the diagnosis of faults and any subsequent repair or replacement of Equipment which is diagnosed as faulty;

“Order Form” means the form that sets out the detailed configuration and specification of, the Services and the Charges and any documents annexed to such Order Form, including any Special Conditions;

“Personnel” means any persons employed or engaged by Yellowcom in the performance of the Services;

“Product(s)” means any item or items ordered by the Customer from Yellowcom from time to time, including Equipment (hardware), Loaned Equipment or Software;

“Service Commencement Date” means the earlier of (i) the date that the Customer is notified by Yellowcom in writing that the Service is connected (gone live) and ready for use; or (ii) the date that the Customer actually starts using the Service, unless otherwise agreed in writing between the parties;

“Scheduled Maintenance” means maintenance that is carried out on any Products which is subject to a maintenance service and shall be maintained by a third party;

“Service(s)” means any combination of (i) consultancy provided by Yellowcom in relation to the deployment of Product, (ii) the installation of Products by Yellowcom on behalf of the Customer, (iii) the provision of a Managed Service by Yellowcom for technical support and (iv) the provision of Yellowcom’s corrective Maintenance Services;

“SLA” means the Service Level Agreement;

“Site(s)” means the Customer’s physical premises at which Equipment is located;

“Software” means any computer or communications software whether embodied in ROM, RAM, firmware or on disk, tape or other media;

“Special Conditions” means any terms set out on the Order Form, which amend or supplement these Terms;

“Target Service Commencement Date” means the date (only where and if applicable) by which Yellowcom shall use reasonable endeavours to deliver the Service(s);

“Work Day(s)” shall mean the 8 hour period on Monday – Friday (inclusive) worked between 9.00 a.m. and 5.30 p.m., excluding public and bank holidays in the UK and the Republic of Ireland;

“Yellowcom Technology” shall mean any materials, equipment, software or other technology owned by Yellowcom or used by Yellowcom under a third party licence or permission, including software and software tools, hardware, computer and telecommunications systems, networks and architecture, and materials and documentation, in whatever format.

1 Order of Precedence

In the event of any conflict, inconsistency or ambiguity between these Terms and an Order Form, the following order of precedence shall apply:

• the Order Form under Appendix 1 and any other documents attached to the Order Form;
• these Terms

2 Service Provision

2.1 Yellowcom shall provide a Service quotation in response to a request for Service. If the Customer wishes to accept such Service quotation, the Customer shall provide Yellowcom with a duly authorised and executed Order Form together with any additional information required.

2.2 Pursuant to clause 2.1 above, a Yellowcom Order Form signed and submitted by the Customer to Yellowcom shall constitute an offer to acquire the Services specified in the order in accordance with these Terms.

2.3 Yellowcom shall be entitled to reject any order containing inconsistent or erroneous information and/or where Yellowcom reasonably determines that degradation to the Services or the Company system is or may occur in a specific geographical area. Yellowcom shall promptly notify the Customer of such rejections so that the Customer may investigate and, where necessary, implement the appropriate remedies.

2.4 Yellowcom shall not be liable for the consequences of any incorrect information the Customer supplied in relation to the provision of the Services.

2.5 If Yellowcom rejects any information for a valid reason, it is the Customers responsibility to correct and re-submit the correct information to Yellowcom.

2.6 Yellowcom shall promptly inform the Customer whether the order can be fulfilled. If Yellowcom are unable to fulfil the order, Yellowcom shall be entitled to cancel the Service without penalty immediately on giving the Customer written notice.

2.7 Yellowcom shall use reasonable endeavours to provide the Service by the Target Service Commencement Date(s) or such later date(s) as Yellowcom may notify (if applicable), subject to the Customer ensuring (at the Customers expense) that all consents, approvals, servitudes, rights of way and wayleaves necessary for the provision of the Services to the Sites and other similar rights relating to installation of the Company Equipment have been obtained. The Customer acknowledges and agrees that: (i) all timeframes are estimates only; (ii) are subject to third party delays; (iii) any service levels are targets only; and Yellowcom accepts no liability for failure to meet the Target Service Commencement Date(s) or such later date(s) as may be advised.

2.8 Yellowcom shall provide the Service(s) with the reasonable skill and care of a competent telecommunications service provider and, where applicable, in accordance with the Standards of Service.

2.9 Yellowcom cannot guarantee Services against unauthorised interruption or interception by third parties or that Services shall be error free and/or uninterrupted. The Customer agrees that use of the Service is at the Customers sole risk. Yellowcom makes no warranty that the Service will meet the Customers requirements and/or those of the Customers end users.

2.10 Yellowcom may obtain services from third party suppliers or sub-contractors in order to provide the Customers Services.

2.11 The Customer accepts that the Customer may not be able to receive Services due to certain technical restrictions.

2.12 Yellowcom records all calls for monitoring and training purposes and handles such recordings in line with Data Protection Legislation.

2.13 Yellowcom may auto-enrol the Customer into such opt-out products that Yellowcom reasonably believes is for the Customer’s benefit (i.e. current cyber threats, future proofing, fraud protection) by providing 30 days’ notice, however, should the Customer decide to opt out pursuant to incurring charges for this product, they will no longer be charged for this product and the product will be cancelled.

2.14 Yellowcom may change these Terms (including changing or introducing new Charges or changing or withdrawing Services). Yellowcom will give the Customer one month’s prior notice of any contractual change (which is not: (i) to benefit of the Customer, (ii) purely administrative in nature, or (iii) where it is directly imposed by law) and, in such notice, inform the Customer of their right to terminate the contract if they do not accept the change.  If the Customer does not express their intention to terminate the contract following such notice, the Customer will be presumed to have accepted the change. 

3 Supply of Equipment & Services

3.1 Any equipment without the appropriate Maintenance Services can be replaced/repaired under standard manufacturer’s warranty with the limitation that if any remote or on-site support is required in replacing the Equipment, labour time will be chargeable.

3.2 Where Yellowcom sells mobile phone equipment to the Customer, title to said mobile phone equipment shall not transfer to the Customer until the Customer has paid the full retail price, as set out in the Order Form, of the said mobile phone equipment to Yellowcom.

3.3 Yellowcom shall undertake to provide the Maintenance Services during the hours of cover in respect of the Equipment at the Site.

3.4 The Maintenance Services shall consist of the diagnosis of faults and corrective maintenance in respect of faulty items. Corrective maintenance may require the replacement of faulty items and the attendance on Site by an engineer. Replacement items may be new or refurbished and should be of at least a similar specification to the original item.

3.5 Where Yellowcom has replaced items of the Customer’s Equipment, the items which have been replaced shall thereafter be owned by Yellowcom. The Customer hereby warrants that it is lawfully entitled to transfer the ownership of such replaced items to Yellowcom. The parties agree that in some case, data stored within hard drives may need to be retained by the Customer under its security policy, which may delay or prevent the return of the items to Yellowcom. In such cases, the parties shall discuss, in good faith, an alternative procedure.

3.6 Where the Customer, for security or commercial reasons, wishes to retain a replaced item of the Equipment, Yellowcom shall be entitled to charge the Customer a reasonable fee for such retained item.

3.7 If Yellowcom is unable to effectively repair an item diagnosed as faulty at the Site, Yellowcom reserves the right to install loan Equipment of at least an equal specification to allow the necessary repairs to occur (the “Loaned Equipment“). In the event that any Loaned Equipment is provided, Yellowcom will charge the Customer the amount incurred by Yellowcom for any Loaned Equipment, which shall be notified to the Customer in advance of delivery.

3.8 Yellowcom shall comply with any security procedures and specific rules in relation to health and safety rules advised by the Customer when attending the Site, subject to those rules having been issued in writing in advance to Yellowcom.

3.9 Yellowcom warrants that it will perform the Maintenance Services with reasonable skill and care and shall exercise a level of skill and prudence that might reasonably be expected of a skilled and experienced person engaged in such activities in similar circumstances and on similar contractual terms.

3.10 Where any Equipment is required to be replaced, Yellowcom will charge the Customer for the cost of any such replacement Equipment, which shall be notified to the Customer in advance of delivery. To the extent, the fault in the Equipment was not attributable in any way to the Customer and the Customer has maintenance included in the Services, Yellowcom shall duly apply a credit of the cost of the replacement Equipment to the Customer’s account. Notwithstanding this, Yellowcom shall at their discretion request either the return of such faulty Equipment to diagnose the cause of the fault/issue, or where a Yellowcom engineer is already at the Customer premises or Site, they shall have option where possible to diagnose the cause and to determine that the Customer had no involvement in causing the fault or issue.

3.11 Any faults outside of a Working Day cannot be supported unless the requisite Maintenance Services are purchased or the additional out-of-hours labour fees are accepted by the Customer.

4 Yellowcom’s Responsibilities

Yellowcom will:

4.1.1 provide the Services in accordance with any order and/or the Service Schedules (where applicable), and using the reasonable skill and care of a competent provider;

4.1.2 ensure that any Equipment supplied as part of the Service(s), as at the date of delivery, conform in all material respects with their specification;

4.1.3 ensure that all work carried out by Yellowcom in connection with the Service(s) is carried out by competent and suitably qualified Personnel;

4.1.4 provide the Service(s) in accordance with the service levels wherever possible, however, the SLA’s provided below are guide times only that Yellowcom work towards, and accordingly Yellowcom does not warrant that the Services will be uninterrupted or fault-free; and

4.1.5 comply with all laws and regulations directly applicable to Yellowcom in respect of the provision of the Services.

4.2 Yellowcom will use its reasonable endeavours to provide the Service(s) in a timely manner. Unless otherwise specified, however, all delivery timescales are estimates only, and Yellowcom shall have no liability to the Customer for failure to meet any delivery timescales.

5 Customer Responsibilities

5.1 The Customer shall, in a timely manner, provide any information and assistance (including access to the Site(s) and the Customer’s personnel) as is reasonably required by Yellowcom to enable it to perform its obligations.

5.2 The Customer shall:

5.2.1 use reasonable endeavours to ensure the safety of the Personnel and their property, whilst they are working at the Site(s);

5.2.2 use the Equipment only in accordance with the manufacturer’s written instructions (and use only those operating supplies which are in accordance with the manufacturer’s specifications);

5.2.3 ensure that the Equipment is suitably located within the Site(s) in accordance with the manufacturer’s recommendations;

5.2.4 maintain appropriate environmental conditions for the Equipment;

5.2.5 comply with all other responsibilities agreed with Yellowcom;

5.2.6 not allow anyone other than Yellowcom to repair, adjust (other than for configuration purposes) or maintain the Equipment during the term of this Agreement; and

5.2.7 ensure that it takes and keeps secure proper back-up copies of all Software or data processed by the Equipment. Yellowcom shall not be liable for loss or damage suffered by the Customer where the Customer, could have avoided that loss or damage by taking proper back-ups.

5.3 Prior to any installation work for the Service, at the Customer’s own expense, obtain all necessary consents, including consents for any necessary alterations to buildings and any land access rights and wayleaves and the right for Yellowcom and/or suppliers of third party equipment to install, keep and maintain duct and/or cable across land and buildings between the public highway or other land over which Yellowcom and/or suppliers of third party equipment have sufficient pre-existing rights and the Site where such rights are required for Yellowcom to provide the Service, where applicable. The Customer shall, if requested by Yellowcom, provide sufficient evidence that such access rights have been granted.

5.4 The Customer may be responsible for infrastructure at a Site, including but not limited to the responsibility to ensure any blockages are cleared to allow third parties to connect to the infrastructure so that the Service(s) may be provided. In such cases, the Customer must ensure that, at it its own expense, such work is carried out as soon as reasonably practicable so that Yellowcom may provide the Service(s). For the avoidance of doubt, where the Target Service Commencement Date is not met as a result of the Customer’s delay or failure to fulfil its obligations under this Agreement, the Charges for that Service shall be payable from the Target Service Commencement Date for that Service, unless otherwise agreed in writing by the parties; and the Customer shall have no right to terminate the Agreement or cancel any Order Form without penalty.

5.5 The Customer shall be responsible for the provision, installation, configuration, operation, monitoring and maintenance of the Customer equipment and cables connected to the Equipment or the network. Yellowcom does not warrant the interoperability of the Customer’s equipment and cables with any Equipment or the network through which the Service is supplied under this Agreement. Yellowcom will have no liability in respect of Charges incurred as a result of any faulty equipment owned by the Customer, for example, if such equipment is faulty and incurs a large data bill the Customer will be liable for the full Charges associated.

5.6 The Customer is responsible for setting its own data and usage limit notifications and/or restrictions. Yellowcom will not be responsible for any such notifications and/or restrictions.

5.7 The Customer shall ensure that all areas containing Equipment at a Site are maintained in a clean condition and that there is a reasonable working area around the Equipment and safe working environment for Yellowcom employees, contractors and third parties; and they shall:

5.7.1 not stack any equipment or materials on top of Equipment;

5.7.2 not repair, adjust or modify, or interfere with the Equipment;

5.7.3 be solely responsible for ensuring the compatibility of any applications the Customer wishes to use with the Service.

5.8 Where the Customer does not comply with clauses 5.2 – 5.7 above, Yellowcom will have no liability to the Customer relating to the provision of the Service (or Yellowcom’s inability to provide the Service), the performance of the Service, its effect on other services or Equipment or the withdrawal of the Service.

5.9 The Customer accepts and agrees that it will not be granted any right to use the Equipment (or any part of the Equipment) other than as is necessary in order to utilise the Services in accordance with the terms of this Agreement.

5.10 The Customer shall use the Service(s) in accordance with Yellowcom’s fair usage policy, detailed below:

Fair Usage Policy

Like many providers, Yellowcom operates a fair usage policy on all of their unlimited package deals. This helps ensure that everyone on its network is using their tariff appropriately without affecting any other customers. Overuse from one customer can affect the quality of service for others when used inappropriately, please see below.

Fixed Line:  Fair usage policy of 3000 Republic of Ireland Local/National and mobile calls applies to customers who purchase any unlimited landline package. If the fair usage is breached, relevant call charges will apply, as specified in the Order Form.

Mobile:  Calls and texts are capped at 3,000 per month each, Data is capped at 650GB per month in the Republic of Ireland and 25GB usage anywhere outside the Republic of Ireland per month. Additionally, the use of applications that may be flagged up as unfair usage include (but is not limited to):

• Peer-to-peer (P2P) file sharing software;
• P2P TV;
• Streaming video services;
• Excessive usage and downloads.

These applications, as well as others, can continue to send and receive data in the background, even though the Customer may not be using it at the time. If Yellowcom reasonably believes that the Customer is abusing the Service, they may ask the Customer to moderate the usage. In rare cases, Yellowcom reserves the right to cap the Customer’s usage, limit speed, or block access where deemed appropriate.

6 Charges and Payment Terms

6.1 Yellowcom shall invoice the Charges to the Customer for the Products and / or the Services, at the agreed intervals as set out on the Order Form (i.e. monthly, quarterly, annually). For the avoidance of doubt, line rentals are invoiced in advance and call charges are invoiced in arrears.

6.2 For all Additional Services, the Customer shall pay Charges in accordance with Yellowcom’s then current pricing. This shall be communicated to the Customer and agreed between the parties, and subsequently shall be subject to these Terms; unless otherwise agreed between the parties.

6.3 Some Service(s) are subject to third party charges as set out on the Order Form.

6.4 Charges detailed in this Section 6 and the Order Form are subject to CPI adjustments as outlined in Clause 6.8 below. Additionally, Yellowcom reserves the right to modify the Charges for the Service(s) (e.g., adjust pricing). Should Yellowcom implement such changes, you may be eligible to terminate your contract, as specified in Clause 2.14.  Invoices are payable by the Customer within 7 days of the date of invoice with the exception of Early Termination Charges which are payable by the Customer immediately as set out in clause 10.5.

6.5 All payments must be made by Direct Debit. Any discount applied to the Charges is discretionary and Yellowcom reserves the right to charge the Customer the greater of: (i) an additional 15% or (ii) €15, if the Customer does not pay by Direct Debit.

6.6 All Charges are stated exclusive of local sales taxes, which shall be additionally payable at the rate and in the manner prescribed by law.

6.7 If any undisputed Charges are not fully paid on the due date, Yellowcom shall be entitled, in addition to its other rights and remedies, to charge interest on the overdue balance at the rate of 4% per annum above the base rate of the European Central Bank for the time until the date of payment and/or suspend performance of its duties under this Agreement and against all other Service(s) under any other agreements the Customer may have with Yellowcom until such time as payment has been made in full.

6.8 Pursuant to clauses 6.1 to 6.3 above, Yellowcom reserves the right to increase Charges on or after the 1st of April for all customers each year in line with the annual percentage increase in the Consumer Price Index (“CPI”) published by the Central Statistics Office in January of that year or 3%, whichever is the highest. Any CPI increase applied pursuant to this clause shall be applied to the full value of the Charges, not including any finance agreements or discounts which will be applied. For the avoidance of doubt, any yearly CPI increase shall be applied to the pre-discount monthly Charge and is also not applied to your finance agreement, e.g., if the Services total €50 p/m, and the monthly discount is €10 p/m, and the finance agreement is €20 p/m, the CPI increase would be applied to €30 (as it does not take into consideration the €10 monthly discount and also does not apply to the €20 monthly finance amount).

For example:

(CPI rates are illustrative only):

If Customer’s Charges are €50 / month* 0:

Year 1: if the CPIRate announced in the February preceding the CPI Change was 3.0% i.e. €50 x 1.030 = €51.50; On your first April bill you would see your airtime tariff increase to €51.50 a month. The CPI would not be applied to the monthly discount amount or the finance agreement amount Year 2: If the CPI Rate announced in the February preceding the CPI Change was 2.7%), i.e. €51.50 x 1.027 = €52.89. On your next April bill you would see your airtime tariff increase to €52.89 a month. The CPI would not be applied to the monthly discount amount or the finance agreement amount.

For the avoidance of doubt, any yearly CPI increase shall be applied to the pre-discount monthly Charge, e.g., if the Services total €50 p/m, and the monthly discount is €10 p/m, the CPI increase would be applied to the €50 p/m and not the €40 p/m amount. The CPI increase would also not be applied to the finance agreement amount.

6.9 The Customer must notify Yellowcom in writing of any amount disputed in good faith within five (5) calendar days of receipt of the invoice. Provided that the Customer has complied with the foregoing, they may withhold the part of the invoice which is disputed in good faith until the dispute is resolved, but must settle any undisputed amounts by the original date due. Once the dispute is resolved, Yellowcom shall charge the Customer interest on any correctly invoiced sums from the original due date.

7 Data Protection

Each party commits to adhere to comply with all legal obligations without limitation under the Data Protection Legislation.

7.1 Each party warrants to the other that they have made the proper notification to the Data Protection Commission in respect of their use and processing of personal data (as defined in the Data Protection Legislation). The Customer warrants that all such personal data are accurate and complete.

7.2 The parties acknowledge and agree that, for the purposes of this Agreement, the Customer shall be the data controller and Yellowcom shall be a data processor (both terms as defined in the Data Protection Legislation).

7.3 The Customer shall procure that the Customer has all the necessary consents from the data subjects (as defined in the Data Protection Legislation) to use and for Yellowcom to use the data for the purpose of the performance of the Services.

7.4 For any personal data (as defined in the Data Protection Legislation) processed by a party in connection with this Agreement, that party warrants to the other that:

7.4.1 it has made all necessary registrations of particulars including sources and disclosures in line with the provisions of the Data Protection Legislation;

7.4.2 it complies, and will continue to comply, with the Data Protection Legislation, including the data protection principles;

7.4.3 it will co-operate as far as is reasonable with the other party in complying with any subject access request; and

7.4.4 it will co-operate fully with the other party in dealing with any investigations carried out by the Data Protection Commission.

7.5 Yellowcom shall ensure that any such personal data is processed only for the purposes of this Agreement and in accordance with the Data Protection Legislation and the Customers written instructions. The Customer undertake that any instructions given to us will be in accordance with the Data Protection Legislation.

7.6 Yellowcom may retain the Customer’s personal data and the Customer authorises Yellowcom to use the Customer’s personal data for the following purposes:

7.6.1 providing the Service to the Customer;

7.6.2 keeping a record for a reasonable period after the Customer’s Service terminates;

7.6.3 operation and enforcement of the Customer’s Agreement;

7.6.4 carrying out technical maintenance and maintaining the quality and integrity of the Service;

7.6.5 providing the Customer with information about other services Yellowcom offer, subject to Customer’s right to opt out of receiving such information when ordering the Service or thereafter;

7.6.6 transferring it to another company in the event of a sale of the Customer company; and

7.6.7 legal compliance including disclosing it to any third party who Yellowcom reasonably consider has a legitimate interest in any such investigation or its outcome.

7.7 The Customer may be subject to a standard credit check. The information that the Customer provides may be disclosed to a licensed credit reference agency (which will retain a record of the search) and the Customer authorises Yellowcom to make such disclosures.

7.8 Both parties agree that they will take appropriate technical and organisational measures to guard against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, having regard to the nature of the data and the processing to be undertaken.

8 Limitation of Liability & Indemnity

8.1 Neither party excludes or limits its liability for death or personal injury caused by its negligence or its liability for fraud.

8.2 Yellowcom’s liability for any claims, demands, damages, costs (including legal costs) and expenses resulting from any tortious act or omission and/or breach of any terms and conditions set out in this Agreement shall not exceed an amount equal to 125% of the total Charges paid or payable in respect of the relevant Products and Services that is the subject of a claim.

8.3 Neither party shall be liable for any loss of revenues, loss of profits, business interruption, loss of or damage to data, or indirect and consequential loss.

8.4 The Customer agrees to indemnify and keep indemnified Yellowcom against all losses, costs, claims and damages suffered or incurred by Yellowcom directly or indirectly as a result of a breach of clauses 5, 7, 8, 9 in this Agreement by the Customer.

9 Intellectual Property Rights

9.1 All Intellectual Property Rights (“IPR“) (a) owned or licensed by a party before the Effective Date and (b) created, developed or licensed by that party after the Effective Date independently of this Agreement, shall continue to vest in that party and/or its licensors.

9.2 Yellowcom shall remain the sole owner of and retain all right, title and interest in any service, technical information and all the Yellowcom Technology. Where applicable, and in return for payment of all charges, Yellowcom shall grant to the Customer a non-exclusive, non-transferable, non-assignable license, during the term, to use any IPR provided with the Service(s) purchased. Subject to clause 7, Yellowcom shall be free to provide similar IPR to other parties and shall retain the right to unrestricted use of any data, any and all related concepts, know-how, techniques or IPR either acquired or developed as a result of this Agreement.

9.3 Each party shall immediately notify the other as soon as it anticipates that the Intellectual Property Rights of a third party may have been infringed.

9.4 In the event that Yellowcom provides the Customer with notice of an actual or potential infringement or the Customer is advised by legal counsel that their use or performance of the Services constitutes such an infringement, Yellowcom shall immediately upon notice and without further charge to the Customer at the Customer’s sole option:

9.4.1 procure for the Customer the right to continue using, taking or possessing the Deliverables and/or Services; or

9.4.2 replace or modify the same so that they become non-infringing provided that such amendment or modification does not adversely affect the Deliverables and/or Services’ compliance with the agreed service levels or disrupt the Customer’s business.

9.5 Yellowcom shall, at its own expense (up to a maximum amount of €100,000), indemnify, settle or defend and pay any damages or costs resulting from any claim brought against the Customer that use of the Services infringes any third party IPRs, provided that the Customer:

9.5.1 notifies Yellowcom promptly and in writing of any such claim; and

9.5.2 does not make any admission in relation to the claim; and

9.5.3 provides Yellowcom with all necessary assistance in connection with defence and/or settlement of the claim; and

9.5.4 permits Yellowcom to have control of the defence of the claim; and

9.5.5 the Customer mitigates its losses to the fullest extent possible.

10 Term and Termination

10.1 This Agreement shall commence on the Effective Date and shall continue in force until terminated in accordance with the terms of this Agreement. The Term of the Services provided to the Customer under this Agreement shall be a period of 60 months, unless otherwise set out on the Order Form (the “Minimum Term”). Upon the expiry of the Minimum Term of each order, the Term shall continue unless and until terminated in accordance with this Agreement.  Any Services ordered hereunder shall continue in full force until the Term expires or unless it is terminated in accordance with clause 10.2 or 10.3 below.

10.2 The Customer may end this contract on or after the end of the Minimum Term by giving Yellowcom thirty (30) days’ notice to terminate this Agreement. This notice must be served in writing to support@yellowcom.ie and must state which Service(s) the Customer intends to terminate.  If the Customer terminates this Agreement at any point from the Service Commencement Date prior to the end of the Minimum Term, they will be liable for the Early Termination Charges, as set out under Clause 10.7 – 10.10.

10.3 Yellowcom may terminate the Agreement with immediate effect in the event that the Customer has not paid Charges when they become due, and the Customer continues to withhold payment seven (7) calendar days after Yellowcom has issued a written reminder. If Yellowcom terminates in accordance with this clause 10.3, Early Termination Charges will become payable.

10.4 Without Prejudice to clause 6.7, in the event it is determined that an invoice dispute has been raised in error or fraudulently by the Customer or where Yellowcom resolves any issues with respect to a disputed invoice, Yellowcom reserves the right to charge an administrative fee as well as interest on amounts unpaid from the due date and the provisions of clause 10.3 shall come into effect.

10.5 In the event the Customer has entered into a finance agreement with a third party and subsequently cancels this agreement either before accepting delivery of the Equipment or prior to the end of the Minimum Term (post-delivery of the Equipment); the Customer agrees to pay Yellowcom the remaining balance of the loan amount for the Equipment and any other reasonable miscellaneous charges incurred as a result of the cancelled finance agreement.

10.6 Notwithstanding clause 10.1 either party shall be entitled to terminate the Agreement with immediate effect by notice in writing:

10.6.1 if the other has committed a material breach of its obligations under the Agreement and has failed to remedy that breach within 30 days of the other party’s written request. For the avoidance of doubt, non-payment of amounts due for payment shall be a material breach; or

10.6.2 if the other passes a resolution, or the Customer makes an order that it be wound up otherwise than for the purpose of a bona fide reconstruction or amalgamation, or a receiver, manager or administrator on behalf of a creditor is appointed in respect of the business or any part thereof, or it is unable to pay its debts within the meaning of Section 570 of the Companies Act 2014 (as amended) or any similar event occurs under the law of any other jurisdiction.

Termination of the Agreement shall be without prejudice to any rights or liabilities of either party, which arose on or before its termination or which are expressed to arise upon or continue after termination.

10. 7 If the Customer terminates this Agreement at any time prior to the Service Commencement Date, they shall still be liable for the full value of the expected Charges as if the Agreement was entered into on the Effective Date until the end of the Term. For the avoidance of doubt, the Customer must pay the full contract amount, for example:

10.7.1 If a Customer cancels a contract before the Service Commencement Date, then the Early Termination Charges for the Customer shall be the total value of the full contract.

10.8 If the Customer terminates this Agreement at any point from the Service Commencement Date prior to the end of the Term, they will be liable for the Early Termination Charges, being the full value of the Charges at the point of termination, (including any subsequent price increases in line with clause 6 since the Service Commencement Date) to the end of the Term. For the avoidance of doubt, such Charges shall be calculated in the following way:

10.8.1 If the monthly Charges were €90 at the Service Commencement Date but were subject to a 10% CPI increase taking them to €99 at the point of termination and the Agreement is terminated 6 months prior to the end of the Term, the Early Termination Charges will be €99 x 6 month = €594.

10.9 Any discount applied to the Charges on the Order Form is applied on a discretionary basis and may not be honoured when calculating Early Termination Charges.

10.10 Early Termination Charges must be paid to Yellowcom immediately of any such Termination.

11 Problem Escalation and Dispute Resolution

11.1 Following notice of a dispute under the Agreement the parties shall in the first instance attempt to resolve any such dispute through negotiations between senior executives of the parties who have authority to settle the same.

11.2 In dealing with your complaint Yellowcom will follow the process outlined in the Yellowcom Code of Practice for Complaints Handling, which is available here: https://yellowcom.co.uk/make-a-complaint-roi/

11.3 In the event any dispute between the parties arising out of this Agreement cannot be resolved amicably through ordinary discussions pursuant to clause 11.1 – 11.2 above, either party may refer the dispute to the Commission for Communications Regulation (“ComReg”).

11.4 If the Customer is not successful in the award of any claim it pursues from either ComReg or otherwise, Yellowcom reserves the right to seek recovery of all of its costs without limitation (including but not limited to any ComReg charges for reviewing the complaint).

12 Force Majeure

12.1 Neither party shall be deemed in Default or liable for any loss or damage resulting from delays in performance or from failure to perform or comply with this Agreement due to any causes beyond its reasonable control, which include, but are not limited to: acts of God or the public enemy; riots and insurrection; war; accidents; fire; strikes and other labour difficulties which are not within the party’s control and which affect the supply of non-substitutable goods; embargoes; judicial, government or regulatory authority action and acts of civil or military authority; the failure of any third party public telecommunications operator or network carrier to provide network capacity (or any element thereof) to Yellowcom on which Yellowcom was reliant for the purposes of this Agreement (whether in breach of contract or otherwise); (“Force Majeure“).

12.2 A party affected by any of the foregoing shall immediately notify the other party of its occurrence and if possible, shall use reasonable endeavours to mitigate the effect of Force Majeure.

12.3 Neither party shall be liable for any delay or failure in performing its obligations under this Agreement caused by a Force Majeure event. A party affected by a Force Majeure event shall serve prompt written notice of the Force Majeure event and its expected duration on the other party and shall take all reasonable steps to mitigate the effects of the same.

13 Confidentiality

13.1 Subject to clause 13.2.4 below, at all times during the Term and 10 years thereafter each party shall keep secret and confidential all business and trade secrets, methods of doing business, policies and procedures, Customer lists and other Confidential Information and materials disclosed by or obtained from the other in connection with this Agreement. All Confidential Information made available to either party under this clause shall be treated as Confidential Information under this clause 13. Each party undertakes not to disclose the Confidential Information to any third party other than to its respective employee, sub-contractor or agent who require such disclosure where bona fide necessary for the proper performance of their duties hereunder and who will individually comply with all obligations of confidentiality imposed upon the parties by the provisions of this clause 13. Each party undertakes to take all reasonable steps to minimise the risk of disclosure of the Confidential Information by its employee, sub-contractor or agent in breach of the provisions of this clause 13. Neither party shall publicise this Agreement or any work carried out under it without the prior written consent of the other party

13.2 The obligations of confidentiality under clause 13.1 above, shall not apply to any information or material which the recipient party can prove:

13.2.1 was already known to it prior to its receipt from the disclosing party;

13.2.2 was subsequently disclosed to it lawfully by a third party who lawfully obtained the same and who was not bound by any obligation of confidence in respect thereof to the disclosing party;

13.2.3 was in the public domain at the time of receipt by the recipient or has subsequently entered into the public domain other than by reason of the breach of the provisions of this clause 13 or breach of any obligation of confidence owed by the recipient or by any of its associates; or

13.2.4 was required to be disclosed by law or by the rules or directions of any court or any authority.

13.3 Neither party shall publicise this Agreement or any work carried out under it without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction; and save to the extent Yellowcom informally mentions a business relationship between the parties to a prospect or otherwise.

14 Suspension of Service

14.1 Yellowcom reserves the right to suspend all or any of the Services for the following reasons:

(i) to carry out maintenance;

(ii) to make any modification, change, addition to, or replacement of, the Equipment or any Software or the Services where this is required to conform with any applicable safety, statutory or legal requirements, provided that such modification, change, addition or replacement does not materially detract from, reduce or impair the overall quality or performance of the Services;

(iii) where the Customer fails to pay any charges in accordance with clause 6;

(iv) where the Customer threatens not to pay any Charges in accordance with clause 6 in writing, orally or otherwise;

(v) where, in its reasonable opinion, it suspects that the Customer has breached its obligations under clause 5;

(vi) where Yellowcom is obliged to comply with an order, instruction or request of government, court, law enforcement agency or other competent administrative or regulatory authority;

(vii) where Yellowcom has reason to terminate this Agreement in accordance with its terms.

14.2 Where suspension or degradation of the Services is necessary for the purposes of maintenance or in accordance with the provisions of clause 14.1(ii), Yellowcom shall carry out such work as Scheduled Maintenance but in circumstances where this is not possible, Yellowcom shall use all reasonable endeavours to perform such work between the hours of midnight and 6am and shall restore the Service as soon as reasonably practical in the circumstances.

14.3 Where Yellowcom suspends Service(s) in accordance with the provisions of clause 14.1(iii), (iv), or (v) save where Yellowcom is entitled to and subsequently elects to terminate this Agreement in respect of such Service(s) in accordance with the terms of this Agreement, Yellowcom shall use its reasonable endeavours to reinstate the Service as soon as is reasonably practical in the circumstances upon Yellowcom becoming satisfied (acting reasonably) that the grounds for suspension as aforesaid are no longer applicable. To the extent any Service is disconnected or stopped altogether (beyond suspension, when the circumstances giving rise to the suspension right continues to exist after a period of suspension), Yellowcom reserves the right to charge a reactivation fee for each Service at its absolute discretion.

14.4 If Yellowcom exercises its right of suspension under this clause this will not exclude its right to terminate this Agreement later in respect of that or any other event, nor will it prevent Yellowcom claiming damages from the Customer in respect of any breach, including but not limited to Early Termination Charges for cancellation due to non-payment of Charges.

15 Broadband Protocol

15.1 Table 1 below sets out the estimated maximum, minimum and normally available upload and download speeds internet service that we provide as part of this Agreement. Yellowcom may publish updates to Table 1 from time to time, as required.  However, your contracted estimated maximum speed is that which applied at the time your Contract for services with Yellowcom commenced. 

Table 1

15.2 Factors Affecting Contractual Speeds:

15.2.1 Your actual speed may be lower due to several factors, including the quality of your internal phone line wiring, the use of a wireless connection, the age or type of equipment being used or if the equipment is faulty, the number of devices connected simultaneously, the location of your hub, network capacity, and the number of customers on the network or a particular website at the same time.

15.2.2 Data transmission delays and jitters, or packet loss, can cause your broadband to run slowly, fail to load web pages, or create problems with services. Packet loss or delay in data transfer might result in momentary interruptions of service.

15.2.3 Speed tests should be completed on a wired connection at the point of entry to the premise, i.e., the router / firewall. In relation to ADSL / VDSL, the average speed depends on the distance between the customer premises and the exchange.

15.3 Issues with Contractual Speeds:

15.3.1 If you experience any continuous or regularly recurring discrepancy between the actual performance of your speed, or other quality of service parameters and the performance indicated above, then please contact Yellowcom and we will attempt to diagnose and resolve your issue. We will endeavour to resolve your issue as soon as possible.  Any complaints will be managed in accordance with our Code of Practice for Complaints Handling which is available here: https://yellowcom.co.uk/make-a-complaint-roi/  

15.3.2 If having gone through this process it is still not possible for Yellowcom to remedy a situation where you are not continuously or regularly achieving the speeds that we have communicated and, where the relevant facts are established by a monitoring mechanism certified by ComReg, this may constitute non-conformity of performance for the purposes of triggering the right to seek potential remedies available to you under Irish law.

16 Non-solicitation

16.1 During the Term of this Agreement neither party shall solicit any employee of the other party with whom it has had dealings and/or contact with in relation to this Agreement (a “Relevant Employee“). For the avoidance of doubt, the provisions of this clause shall not apply to the recruitment of a Relevant Employee who responds to a bona fide public advertisement for a job vacancy.

17 General

17.1 This Agreement shall be governed by and construed in accordance with the laws of Ireland.

17.2 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the parties shall immediately commence good faith negotiations to remedy such invalidity.

17.3 The failure of either party to insist upon strict performance of any provision of this Agreement, or the failure of either party to exercise any right or remedy to which it is entitled under this Agreement, shall not constitute a waiver of this Agreement and shall not cause a diminution of the obligations established. A waiver of any Default shall not constitute a waiver of any subsequent Default. No waiver of any of the provisions of this Agreement or shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing.

17.4 This Agreement is personal to each party. Neither party shall assign, novate or sub-contract any of its rights or obligations under this Agreement without obtaining the other’s prior written consent, such consent not to be unreasonably withheld or delayed; save that Yellowcom may at any time assign or transfer the Agreement and/or any of its rights or obligations thereunder, in whole or in part to any affiliate of Yellowcom; or to any successor to Yellowcom following a re-organisation or merger of Yellowcom with another organisation; upon notice but without consent.

17.5 Any notice given hereunder shall be by post or email. In the case of a notice to Yellowcom, it shall also be copied to the Senior Legal Counsel at the address shown at the top of this Agreement.

17.6 Both parties shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Criminal Justice (Corruption Offences) Act 2018.

17.7 The Customer shall not slander, defame or provide any incorrect and/or unsubstantiated information within any reviews of Yellowcom they leave on any public forum. If any review is not representative of the truth then Yellowcom reserves the right to hold the Customer accountable and without prejudice to any other rights or remedies available, Yellowcom shall be entitled to seek injunctive or other equitable relief.

17.8 This Agreement supersedes all prior agreements, arrangements and understandings (and excludes any pre-Agreement communications of whatsoever nature) between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof.

Appendix A – Order Form

Please see appended Customer Order Form in relation to the Service(s).

Appendix B – Business Customer / Not-For-Profit Organisation Size-Classification Form

To ensure your rights are comprehensively addressed in this contract, please confirm the size of your enterprise per the categorisation explained below.

Classification Confirmation – The Customer hereby confirms it has reviewed the categorisation information provided above and further confirm that the Customer qualifies as a:

• Not-For-Profit Organisation*
• Microenterprise*
• Small Enterprise*
• Medium-sized Enterprise
• Large-sized Enterprise

*If you have confirmed you qualify as either a Not-For-Profit Organisation,  a Microenterprise or a Small Enterprise, please proceed to complete Appendix C after completing Appendix B.

Appendix C – Waiver Notice For Small, Micro And Not-For-Profit Enterprises

The Commission for Communications Regulation (“ComReg”) is the statutory body and competition authority responsible for the regulation of the electronic communications sector and the postal sector in Ireland.

Directive 2018/1972 of the European Parliament and of the Council of 11 December 2018 (the “EECC”) and S.I. 444/2022 – European Union (Electronic Communications Code) Regulations 2022 (the “EECC Regulations”) set out the regulatory conditions that apply to all providers of electronic communications networks and services if they want to provide these services in the Ireland.  The EECC Regulations offer, amongst other things, certain protections to certain customers – where you are a small or micro enterprise with less than 50 / 10 employees and an annual turnover or balance sheet below €10 / €2 million, respectively, or a not-for-profit enterprise (the “Qualifying Customers“) when entering into telecommunications contracts with service providers.

This notice is for Qualifying Customers and sets out the rights we are asking you to waive, so that you can make an informed decision before contracting with us.

You can find details of the EECC and EECC Regulations and the protections they contain for Qualifying Customers here:

• EECC: https://eur-lex.europa.eu/eli/dir/2018/1972/oj.
• EECC Regulations: https://www.irishstatutebook.ie/eli/2022/si/444/.

Rights We Are Asking You To Waive

Under the EECC Regulations, Qualifying Customers have the right to receive the following:

• Pre-Contract Information and Contract Summary:
• Specific pre-contract information would be provided in writing and in advance to a Qualifying Customer before they enter into a contract (absent a waiver), including the main elements of the service offer (such as the charges, the length of a contract and the process for cancelling).
• Qualifying Customers would also be provided with a one-page (absent a waiver), (three-page for bundled services) ‘Contract Summary’, before entering into a contract.

For the avoidance of doubt, where a waiver is given i.e., in the absence of contract information and summary documentation, all the relevant information with respect to your order will be detailed either on your order form or within the terms and conditions you will sign up to prior to conclusion of contract.

• Monitoring Usage Tool: Access to additional usage monitoring tools (e.g., information in relation to itemised billing to allow verification of charges and to monitor usage and expenditure) would be provided (in the absence of a waiver).
• Contract Duration: Certain terms regarding contract termination (prohibitions on terms in contracts to which act as “disincentives” to changing service providers) and durations beyond 24 months (would be provided in the absence of a waiver). If a waiver is granted and your minimum term exceeds 24 months, please ensure you are happy with the length of your commitment period. 
• Bundled Products: Certain terms regarding bundled packages, extending the above requirements to each element of a bundle, including in relation to termination rights associated with bundles, would also be provided to Qualifying Customers (in the absence of a waiver).

*If you do not wish to waive any of the rights specified in this notice, please speak to your Sales Representative who will be able to discuss the impact this will have on your contract with us.