Terms & Conditions - UK

YELLOWCOM GENERAL TERMS OF BUSINESS

*THIS IS A BUSINESS-TO-BUSINESS CONTRACT (B2B). IF YOU ARE A CONSUMER (OR WHERE YOU ARE A MICRO/SMALL BUSINESS WITH LESS THAN 10 EMPLOYEES, OR A NOT-FOR-PROFIT ENTERPRISE), PLEASE SEE OUR CONSUMER & SMALL BUSINESS WAIVER NOTICE WITHIN THIS DOCUMENT.

THE CONSUMER CONTRACTS (INFORMATION, CANCELLATION AND ADDITIONAL CHARGES) REGULATIONS 2013 AND THE GENERAL CONDITIONS OF ENTITLEMENT (GENERAL CONDITIONS) AND COMMUNICATIONS ACT 2003 DO NOT APPLY TO THIS CONTRACT.

Yellowcom and the Customer hereby agree as follows:

Background:

(A)         Yellowcom Limited (“Yellowcom”) is a telecoms service provider, offering bespoke telecoms solutions to businesses in the Northern Ireland, Republic of Ireland and Scotland.

(B)        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 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 736 of the Companies Act 1985) 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 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;

“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 Minimum 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;

“Minimum Term” means the initial minimum period during which the Customer has committed to procure the Services from Yellowcom, and 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, and is more particularly referred to in Schedule 1 attached hereto;

“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 set out at Schedule 1 to these Terms;

“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:

• any Special Conditions;
• the Order Form;
• these Terms;
• Price List;
• any other documents attached to the Order Form; and
• Yellowcom’s Policies.

2. Service Provision
   • 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.
   • 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.
   • 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.
   • Yellowcom shall not be liable for the consequences of any incorrect information the Customer supplied in relation to the provision of the Services.
   • If Yellowcom rejects any information for a valid reason, it is the Customers responsibility to correct and re-submit the correct information to Yellowcom.
   • 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.
   • 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 Customer 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.
   • 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.
   • 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.
   • Yellowcom may obtain services from third party suppliers or sub-contractors in order to provide the Customers Services.
   • The Customer accepts that the Customer may not be able to receive Services due to certain technical restrictions.
   • Yellowcom records all calls for monitoring and training purposes and handles such recordings in line with the DPA.
   • 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.
   • Yellowcom may change these Terms (including changing or introducing new Charges or changing or withdrawing Services), subject to clause 6.4: (i) where required to comply with applicable law or regulation; (ii) due to a change in Yellowcom’s or a third-party operator’s charges, out-payments, operations or services; or (iii) where Yellowcom reasonably determines the change is needed to maintain or improve quality of the Service.

3. Supply of Equipment & Services
   • 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.

• 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 of the said Mobile Phone Equipment to Yellowcom.

• Yellowcom shall undertake to provide the Maintenance Services during the hours of cover in respect of the Equipment at the Customer’s Site.

•    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.

• 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.

• 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.

• 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 for any Loaned Equipment.

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

• 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.

Where any Equipment is required to be replaced, Yellowcom will charge the Customer for the cost of any such replacement Equipment. 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.

• Any faults outside of a Working Day cannot be supported unless Maintenance Services are purchased unless additional out of hours labour fees are charged to the Customer.

4. Yellowcom’s Responsibilities

4.1                  Yellowcom will:

• 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;
• 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;
• ensure that all work carried out by Yellowcom in connection with the Service(s) is carried out by competent and suitably qualified Personnel;
• 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
• comply with all laws and regulations directly applicable to Yellowcom in respect of the provision of the Services.
  • 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:

1. use reasonable endeavours to ensure the safety of the Personnel and their property, whilst they are working at the Site(s);
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);
3. ensure that the Equipment is suitably located within the Site(s) in accordance with the manufacturer’s recommendations;
4. maintain appropriate environmental conditions for the Equipment;
5. comply with all other responsibilities agreed with Yellowcom;
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
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 Customer’s 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:

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

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

5.5.13   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 – 5.7above, 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.

Fixed Line

Fair usage policy of 3000 UK 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.

Mobile

Calls and texts are capped at 3,000 per month each, Data is capped at 650GB per month in the UK and 25GB usage anywhere outside the UK 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 (ie 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      Any Charges set out in this section 6 are subject to change including but not limited to RPI increases as set out in paragraph 6.6 below. 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.

6.4      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.

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

6.5      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 Bank of England 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.

6.6      Pursuant to clauses 6.1 to 6.3 above, Yellowcom reserves the right to increase the Charges during the Minimum Term and/or any Rolling Period on or after the 1st of April each year in line with the annual percentage increase in the Retail Price Index (“RPI”) or 2%, whichever is the highest. Any RPI increase applied pursuant to this clause shall be applied to the full value of the Charges, not including any finance agreements or discounts which may be applied. For the avoidance of doubt, any yearly RPI increase shall be applied to the pre-discount monthly Charge and is also not applied to your finance agreement eg. If the Services total £50 p/m, and the monthly discount is £10 p/m, and the finance agreement is £20 p/m, the RPI 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:

(RPI rates illustrative only):

If Customer’s Charges are £50 / month* ():

Year 1: if the RPI Rate announced in the February preceding the RPI 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 RPI would not be applied to the monthly discount amount or the finance agreement amount

Year 2: If the RPI Rate announced in the February preceding the RPI 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 RPI would not be applied to the monthly discount amount or the finance agreement amount

*         For the avoidance of doubt, any yearly RPI increase shall be applied to the pre-discount monthly Charge eg. If the Services total £50 p/m, and the monthly discount is £10 p/m, the RPI increase would be applied to the £50 p/m and not the £40 p/m amount. The RPI increase would also not be applied to the finance agreement amount.

6.7      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 you interest on any correctly invoiced sums from the original due date.

7. Data Protection

Each party commits to adhere to the terms of the Data Protection Act 2018 (the “DPA”).

• Each party warrants to the other that they have made the proper notification to the Office of the Information Commissioner in respect of their use and processing of personal data (as defined in the DPA). The Customer warrants that all such personal data are accurate and complete.
• 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 DPA).
• The Customer shall procure that the Customer has all the necessary consents from the data subjects (as defined in the DPA) to use and for Yellowcom to use the data for the purpose of the performance of the Services.
• For any personal data (as defined in the DPA) 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 DPA;

7.4.2               it complies, and will continue to comply, with the DPA, 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 Information Commissioner.

• Yellowcom shall ensure that any such personal data is processed only for the purposes of this Agreement and in accordance with the DPA and the Customers written instructions. The Customer undertake that any instructions given to us will be in accordance with the DPA.
• Yellowcom may retain the Customers personal data and the Customer authorises Yellowcom to use the Customers 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 Customers Service terminates;

7.6.3               operation and enforcement of the Customers Agreement;

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

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

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

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

• 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.
• 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:

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

1. 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 Intellectual Property Rights, provided that the Customer:

1. notifies Yellowcom promptly and in writing of any such claim; and
2. does not make any admission in relation to the claim; and
3. provides Yellowcom with all necessary assistance in connection with defence and/or settlement of the claim; and
4. permits Yellowcom to have control of the defence of the claim; and
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 Minimum Term of the Services provided to the Customer under this Agreement shall be for a minimum of twelve (12) months, unless otherwise set out on the Order Form.  Upon the expiry of the Minimum Term of each order, the term shall continue and thereafter roll unless and until terminated in accordance with this Agreement (the “Rolling Period”). Thereafter, any Services ordered hereunder shall continue in full force until ceased by either party pursuant to clause 10.2 or 10.3 below.

10.2    The Customer must provide ninety (90) days’ notice for fixed line services, or thirty (30) days’ notice for mobile services to terminate this Agreement, such notice to expire at the end of the Minimum Term or relevant Rolling Period. This notice must be served in writing to support@yellowcom.co.uk and must state which Service(s) the Customer intends to terminate (an Order Form may list more than one Service and only the Service(s) listed in the termination notice will be terminated, all other Service(s) will continue to be in force unless Yellowcom uses its discretion to cancel other connected Services). Yellowcom will respond to such notices promptly with a case reference number and once such case reference number has been allocated, the notice will be deemed to be served and any Early Termination Charges shall be notified (where applicable). If the Customer does not follow the correct termination process as set out in this clause and Yellowcom receives notice of termination by any other means (including a number port request from another provider), the Customer will further be liable for Early Termination Charges for all Service(s) on the applicable Order Form.

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, Yelllowcom 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:

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

1. 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 123 of the Insolvency Act 1986 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 Minimum Term.  For the avoidance of doubt, the Customer must pay the full contract amount, for example:

• If a Customer cancels a 60 month contract before the Service Commencement Date, then the Early Termination Charges for the Customer shall be the total value of the full 60 months.

10.8       If the Customer terminates this Agreement at any point from the Service Commencement Date prior to the end of the Minimum Term or any relevant Rolling Period, 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 Minimum Term or relevant Rolling Period as applicable. For the avoidance of doubt, such Charges shall be calculated in the following way:

• If the monthly Charges were £90 at the Service Commencement Date but were subject to a 10% RPI increase taking them to £99 at the point of termination and the Agreement is terminated 6 months prior to the end of the Minimum Term or relevant Rolling Period, 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 written notice of a dispute under the Agreement (to support@yellowcom.co.uk with the subject as ‘Complaint’), 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 the event any dispute between the parties arising out of this Agreement cannot be resolved amicably through ordinary discussions pursuant to clause 11.1 above, either party may refer the dispute to Ofcom.

11.3       Yellowcom is a member of the Communications Ombudsman, the maximum award for claims heard through the Communications Ombudsman is £10,000. Where the dispute between the parties is suitable to be heard through the Communications Ombudsman, the Customer should follow the process set out on the Communications Ombudsman website: https://www.ofcom.org.uk/complaints/complain-about-phones-or-internet-services.

11.4       If the Customer is not successful in the award of any claim it pursues under either the Communications Ombudsman, Ofcom or otherwise, Yellowcom reserves the right to seek recovery of all of its costs without limitation (including but not limited to any Ofcom 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 13.3.4 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:

• to carry out maintenance;
• 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;

• where the Customer fails to pay any charges in accordance with Clause 6;

• where the Customer threatens not to pay any Charges in accordance with Clause 6 in writing, orally or otherwise;

• where, in its reasonable opinion, it suspects that the Customer has breached its obligations under Clause 5;

• 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;

• 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. Non-solicitation

15.1       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.

16. General

16.1       This Agreement shall be governed by and construed in accordance with the laws of Scotland, however, Yellowcom reserves its right to submit to the jurisdiction of the Customer’s local courts for the convenience of both parties.

16.2       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.

16.3       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.

16.4       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.

16.6       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.

16.7       Both parties shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.

16.8       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.

16.9       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.