Terms and Conditions
1. Operative Provisions
1.1 In this Agreement, unless the contrary intention appears:
(a) a reference to a provision of law is a reference to that provision as extended, applied, amended or enacted from time to time and includes any subordinate legislation and any official guidance issued from time to time;
(b) the singular includes the plural and vice versa;
(c) references to this Agreement or any other agreement or document are to this Agreement or such other agreement or document as it may be varied, amended, supplemented, restated, renewed, novated or replaced from time to time;
(d) references to any Party to this Agreement include a reference to its successors and permitted assignees and permitted transferees under this Agreement;
(e) the Schedule to this Agreement takes effect as if set out in this Agreement;
(f) the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions; and
(g) references to Clauses and Schedules refer to clauses of, and schedules to, this Agreement.
(h) The headings in this Agreement do not affect its interpretation.
1.2 Save as otherwise expressly agreed in writing, the terms of this Agreement, as amended from time to time, which are the standard terms and conditions of trading of Swift, shall apply to all supplies of Deliverables and Services to you by a Swift Company.
2. Ordering process
2.1 The Agreement governs the relationship between us for the supply of Deliverables by a Swift Company (“Us”) to you. Nothing in the Agreement shall be deemed to oblige us to provide Deliverables to you unless and until the Statement of Work is agreed and signed by you.
2.2 You shall provide us with a Specification detailing your requirements for the Deliverables. We will review the Specification and respond to you with a quote for the proposed Deliverables and a Statement of Work to be signed by you.
2.3 Any terms and conditions submitted by or used by you, which are in addition to or in conflict with the terms and conditions of the Agreement and the Statement of Work, as applicable, shall not be binding upon us.
2.4 Any variation or change to the statement of work or order form must be approved in writing by Swift. In the event of a dispute the original statement of work terms shall apply.
3. Our Services
3.1 During the Term, we shall supply the Deliverables on a non-exclusive basis to you in accordance with the Statement of Work; and each Statement of Work will be considered a separate contract between you and the Swift Company.
3.2 The quality and description of the Deliverables shall be as set out in the Specification but we reserve the right to use all appropriate methods (which may or may not be detailed in the Specification) in order to deliver the Deliverables.
3.3 We will:
(a) use all reasonable endeavours to deliver the Deliverables to you in all material respects in accordance with the Specification;
(b) use all reasonable endeavours to complete the Services comprised within the Deliverables within the designated timetable; and
(c) use reasonable skill and care providing the Services and will provide them in accordance with this Agreement and the Service Levels.
3.4 Where we have provided a Statement of Work, you acknowledge that the Statement of Work is based upon certain assumptions. We may introduce necessary alterations to the Statement of Work if these assumptions prove to be inaccurate, based on incorrect or incomplete information provided by you. We may give you notice explaining why the Statement of Work was incorrect and additional sums (the “Additional Charge”) may be payable by you.
3.5 We will work cooperatively with any third party in order to supply the Deliverables. To the extent that this requires chargeable work outside the terms the relevant Statement of Work, we shall promptly notify you and we shall agree a reasonable sum payable for such work.
3.6 Unless otherwise expressly stated in the Agreement or the relevant Product specification, our Services are, due to their nature, provided “as is” and we do not guarantee (a) that the Services will be uninterrupted or error-free or (b) that Data transmitted via or stored on the Services will be secure or free from damage or deletion (excluding our obligations in relation to Personal Data specified below) or (c) that particular results shall be achieved by use of the Services. We shall use reasonable endeavours to restore the Services following interruptions or errors and to keep to a minimum any interruption necessitated by our repair, maintenance or improvement of the Services.
3.7 Where necessary for commercial, technical or other reasons:
(a) a network or service provider connected to the Services may suspend or terminate your connection to the Services; and
(b) the Services may suspend or terminate their connection to another network or service provider.
3.8 You agree that any such suspension or termination referred to in Clause 3.7 above will not constitute a breach by us of the Agreement.
3.9 Where we provide additional services in the Deliverables, the following terms and conditions shall apply to this Agreement in addition to these terms and conditions:
(a) in respect of Website Hosting and Co-location services – Section 2 below;
(b) in respect of Domain Name registration – Section 3 below;
(c) in respect of Online Backup services – Section 4 below;
(d) in respect of Connectivity services – Section 5 below;
(e) in respect of VoIP services – Section 6 below;
(f) in respect of Telephone Number – Section 7 below;
(g) in respect of IT Support Service including pre-paid hours, monthly subscription service and Ad-hoc services – Section 8 below
3.10 If the equipment supplied by you is faulty, non compliant or not available then the Swift takes no responsibility or this and all charges will still be due.
4.1 Unless stated otherwise in the Statement of Work, this Agreement shall commence on the Effective Date and unless and until terminated earlier in accordance with clause 18, shall continue until ended by not less than 90 days’ written notice expiring after the first anniversary of the Effective Date.
5.1 You shall provide us with any necessary information and equipment to facilitate the delivery and (where appropriate) the installation of the Deliverables and to carry out our obligations under this Agreement. Such information shall include, without limitation the following (i) address; (ii) identity of person authorised to take delivery; and (iii) any restrictions concerning access e.g. yellow parking lines etc, availability of lifts and times for access. We rely on this information and you shall reimburse us for any costs, charges and expenses incurred by us, if such information is wrong or delayed.
5.2 Any time or date for delivery and/or installation of the Deliverables provided by us is only an estimate and we shall use reasonable endeavours to tell you if there are any changes to the time or date, where practical.
5.3 Where you do not take delivery of any Products by the agreed date, we will arrange for their storage and insurance at your risk and expense.
5.4 The risk of any damage to, or loss of, the Products shall pass to you upon delivery. Notwithstanding delivery, all Products supplied to you shall remain our property until you have paid all monies due to us from you.
5.5 Any software comprised in the Products or Deliverables, shall be used by you under licence from the relevant third party owner.
5.6 Until such time as the title and property in the Products passes to you
(a) you shall hold the Products as our fiduciary agent and bailee, and shall keep the Products properly stored, protected and insured and identified as our property;
(b) we shall be entitled at any time to require you to deliver up the Product(s) to us and if you fail to do so forthwith:
(i) repossess the Products from you or any third party where the Products are stored; and/or
(ii) require you to cease using the Products until all outstanding moneys due to us are paid in full.
6. What You Must Do
6.1 You are responsible for ensuring that the System and the Products are used in accordance with the Agreement and any recommendations or instructions of us or the Manufacturer and in compliance with all laws and regulations. If while using the System, you discover any unauthorised use of the System, you must inform us immediately.
6.2 You also agree that you will not use, and will take all necessary precautions to ensure that nobody else uses the System/Services:
(a) fraudulently or in connection with any criminal offence;
(b) to send, knowingly receive, upload, download, or use any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
(c) to “spam” or send unsolicited advertising or promotional material or, receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party;
(d) in any way which is detrimental to the provision of Services to you or any of our customers, or to our business and/or reputation;
(e) in breach of any licences or third party rights; or/and
(f) in contravention of our Acceptable Use Policy;
(g) so as to cause an overload of our system
(h) in a way that does not comply with our reasonable instructions.
6.3 You may use the System to link to other networks world-wide, provided that you comply, at all times, with any policies and/or terms and conditions imposed by the operators of such other networks.
6.4 You must comply with our Acceptable Use Policy and bring it to the attention of users.
6.5 You are responsible for all persons who use your username, password and/or security phrase to access the Services, whether authorised or not.
6.6 You warrant that your use of the Services will not infringe any third party intellectual property or other rights.
6.7 It is your responsibility to frequently back-up on your own system all Data that you wish to save (excluding any Services that specifically include a back-up capability).
6.8 You must provide all equipment, site access, passwords and materials requested by Swift. Failure to do so will be treated as a breach of contract and may lead to termination in accordance with clause 18.
7. Charges and Payment
7.1 You shall pay to us the Charges in accordance with the Statement of Work.
7.2 All Charges exclude Value Added Tax and other taxes which shall be payable in addition at the current rate.
7.3 The Manufacturer (at their own discretion) and we may vary our Charges from time to time. Any price change shall become effective immediately upon written notice from us to you. The Charges quoted in any any pre-existing written Statement of Works are valid for acceptance within 14 days.
7.4 You will pay all Charges (unless bona fide disputed under Clause 7.5 below) as follows:
(a) in respect of any Products, on or before delivery of the Products; and
(b) in respect of any Services, within twenty (20) Business Days of the date of invoice.
7.5 If you dispute any invoice then you must write to us within ten (10) Business Days of the date of the disputed invoice and pay any undisputed amounts set out in that invoice by the due date for payment.
7.6 If any undisputed sum payable under this Agreement is not paid by the due date, we may charge interest on the outstanding sum from the date due for payment to the actual date of payment at a rate of two (2)% per annum above the base rate of HSBC Bank PLC from time to time in force.
7.7 Payment must be made without deduction or set-off and time for payment shall be of the essence.
7.8 Non-payment of invoice is deemed to be material breach of the Agreement and would entitle us to terminate this Agreement in accordance with Clause 18 or suspend the Services.
7.9 We have a general and particular lien over any of your property in our possession until all claims and money payable by you have been received in full. If you fail to satisfy any lien within a reasonable time from the date of notice of exercise then the property subject to the lien may be sold in or towards satisfaction of every such lien. We will account to you for any excess.
8. Timetable and Project Management
8.1 Our respective primary contacts shall be the Representatives listed on each Statement of Work.
8.2 We will use all reasonable endeavours to provide the Deliverables in accordance with the Timetable. All dates will be extended by a reasonable period by agreement between us or if any delay or stoppage is caused by any act or omission of you, your contractors, employees, or agents.
8.3 We shall provide to you with regular basis reports containing statistical information relating to the Deliverables and such other information as you may reasonably request from time to time.
9. Installation Tests
9.1 Following installation of the Hardware and Software forming part of the Deliverables, we will submit the Hardware to the standard installation tests (“Installation Tests”) of the applicable manufacturers to ensure that the Hardware is in working order.
9.2 We will supply you with a copy of the results of the Installation Tests of the Hardware before the Acceptance Tests begin.
10. Acceptance Tests
10.1 We will prepare Acceptance Tests which are suitable to demonstrate that the Products and/or System is functional.
10.2 When the Products and/or System is ready for Acceptance Testing, we will undertake the Acceptance Tests using test data prepared by you.
10.3 The Representatives will liaise in all matters relating to the Acceptance Tests. Following the Acceptance Tests your Representative must write to us within ten (10) Business Days of the Tests to confirm your acceptance or rejection of the System. Failure to respond and demonstrate reasonable grounds for rejection within the appropriate period will be deemed acceptance of the System. In the case of rejection, your Representative will list the matters which have not successfully completed the Acceptance Tests together with full written details thereof.
10.4 If any part of the System fails to pass the Acceptance Tests we will be given such time and facilities as are reasonable in all the circumstances to rectify such part of the System and carry out further Acceptance Tests in respect of such part of the System until such part of the System passes the Acceptance Tests. We will not be required to repeat any tests in respect of those parts of the System which have successfully completed the Acceptance Tests applicable thereto.
10.5 We will repeat the Acceptance Tests until the System is accepted by you.
11. Warranty for Products
11.1 Unless otherwise agreed in Writing between us, all Products supplied by us will be sold with the benefit of the Warranty.
11.2 In the event of any claim under the Warranty during the Warranty Period, we shall only be obliged to repair or replace the Products, or if we are unable to repair or replace any of the Products, we shall reimburse you with or provide you with a credit for any part of the price which has been paid by you in respect of the defective Product or part. All defective Products or parts thereof which are replaced shall become our absolute property. The replacement Products or parts thereof shall become your property.
11.3 You will have no claim in respect of any defect in or other claim in relation to the Products, unless you give written notice within the Warranty Period.
11.4 We shall have no liability to you under the Warranty in respect of any Products which;
(a) have not been maintained or operated in accordance with our recommendations or Manufacturer’s instructions or recommendation’s;
(b) have been modified contrary to the recommendations or instructions of the Manufacturers or us;
(c) have had their serial numbers removed or altered; or
(d) have been subject to abuse, negligent or other improper treatment or have been otherwise damaged by you or your agents, representatives or contractors at any time after delivery.
11.5 Save as provided in Clause 11.1, all other warranties, conditions, terms, guarantees, or any other terms implied by statute or common law as to the quality or fitness of the Products or their compliance with any description or sample are excluded to the fullest extent permitted by law.
12. Limitation of Liability and Indemnity
12.1 This section (Limitation of Liability and Indemnity) and any other clause limiting our liability applies to and may be enforced by our directors, officers, employees, subcontractors, agents and Associates as well as to/by us. You acknowledge that the pricing of the Services and other Deliverables is directly related to, and would be substantially higher in the absence of, the limitations in this section and that they are therefore reasonable.
12.2 We accept liability without limit for death or personal injury caused by our negligence or if we act fraudulently.
12.3 Subject to clause 12.1, we shall not in any circumstances be liable, whether in tort (including, without limitation, for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(a) loss of profits; or
(b) loss of business; or
(c) depletion of goodwill or similar losses; or
(d) loss of anticipated savings; or
(e) loss of goods; or
(f) loss of contract; or
(g) loss of use; or
(h) loss or corruption of data or information; or
(i) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
12.4 Without prejudice to any other provision in this Agreement, you acknowledge that we shall have no liability of any kind for any losses or damage resulting from your breach of this agreement.
12.5 In no event may you bring any claim against us more than 12 months after you knew of (or ought reasonably to have discovered) the event(s) giving rise to the potential liability.
12.6 Subject to clause 12.2, and above, the provision of a Service Credit shall be your sole and exclusive remedy if we fail to provide the Services in accordance with the relevant Service Levels and this Agreement.
12.7 All claims for a Service Credit must be made in accordance with the incident reporting and other procedures set out in our SLAs in force from time to time.
12.8 Subject to 12.2, to the extent allowed by law, we exclude all conditions, terms, representations, guarantees and warranties, whether expressly or impliedly imposed by statute or by law or otherwise, that are not expressly stated in this Agreement including, without limit, the implied warranties of satisfactory quality and fitness for a particular purpose.
12.9 You will indemnify us against all third party claims and proceedings directly or indirectly related to use or misuse of the Services by you or a third party or breach by you of this agreement.
13. Hardware and Software Maintenance
13.1 We will provide support and maintenance services for the Hardware and where appropriate for the Software, as listed in the Services and Statement of Work, if any.
14. Data Protection
14.1 If we provide Services during which we have access to Personal Data collected on your behalf you shall be the Data Controller and we shall be Data Processor for the purposes of the Data Protection Act 1988 (“DPA”).
14.2 We undertake at all times:
(a) to act only on your instructions in respect of all processing of the Data;
(b) put in place appropriate technical and organisational measures to avoid unlawful processing, accidental loss, destruction or damage to the Data; and
(c) comply with our obligations as Data Processor under the DPA.
15. Intellectual Property Rights
15.1 We retain ownership of any Intellectual Property Rights belonging to us relating to the Deliverables.
15.2 All Software is licensed to you under licence from the third party owners and on their standard licence terms in force from time to time.
16.1 We both agree to use all Confidential Information we receive or obtain from the other solely for the purpose of performing this Agreement and keep all such Information strictly confidential.
16.2 A party may disclose Information which would otherwise be Confidential Information if and to the extent:
(a) required by law, or by any securities exchange or regulatory or governmental body;
(b) is reasonably disclosed to the professional advisers and auditors of such party;
(c) the information has come into the public domain through no fault of that party;
(d) the information has been received from a third party under no such confidentiality obligations; or
(e) with the prior written approval of the other party.
16.3 The restrictions contained in this Clause shall continue to apply after the termination or expiry of this Agreement without limit in time.
17.1 You or we may at any time by written notice to the other terminate the Agreement with immediate effect:
(a) if the other is declared insolvent or is not capable of paying its debts;
(b) if the other is in material breach and (in the case of remediable breach) fails to remedy the breach within twenty (20) Business Days of written notice to do so;
c) if the other persistently or materially breaches the terms of this Agreement.
d) All the cancellations (terminations) of the contract must be submitted in the written format and sent to firstname.lastname@example.org.
17.2 We may suspend some or all of the Services immediately on written notice:
(a) in the event of exceptional circumstances;
(b) if you have breached any payment obligation in this Agreement;
(c) if you exceed our data transfer limits; or
(d) if we are required to do so by regulation or competent authority and we may charge a reasonable reconnection fee if we agree to resume suspended Services.
18. Consequences of Termination
18.1 Upon termination of part of or a Statement of Work under Clause 17, we shall continue to provide Deliverables in relation to all the Services which have not been terminated in accordance with the provisions of this Agreement
18.2 Upon termination of this Agreement:
(a) all Statements of Work will be terminated on the same date as the Agreement; and
(b) each of us shall return to the other, at its own expense, all material or documentation belonging to the other.
(c) we will immediately stop supplying, and will terminate access to, the relevant Services;
(d) you will lose access to and/or we may delete any Data stored on our servers (unless we expressly agree otherwise in writing);
(e) all licences granted by us will terminate;
(f) any fees due shall remain payable and the Charges for all Deliverables delivered to you under any terminated Statement of Work, whether invoiced or not as at the termination date shall become due for payment immediately and where we have terminated this Agreement, all fees and Charges shall be payable as if the Agreement had continued until the earliest date that it could otherwise have been ended under clause 4 above;
(g) accrued rights and liabilities will be unaffected.
18.2 (d) you will lose access to and we may delete any data stored on our servers or any servers or equipment we have worked on or had access to ( unless we expressly agree otherwise in writing)
18.3 Clauses 7,11,12,15,16,17,18 and 22-25 will survive termination or expiry of this Agreement together with those other clauses the survival of which is necessary for the interpretation or enforcement of this Agreement.
19.1 Any notice or communication to be shall be in writing.
19.2 Any such notice shall be
(a) personally delivered, in which case it shall be deemed to have been given upon delivery at the relevant address; or
(b) sent by registered delivery, in which case it shall be deemed to have been received on signature of the letter by the recipient; or
(c) sent by fax, in which case it shall be deemed to have been given when despatched, subject to confirmation of uninterrupted transmission by a transmission report provided that any notice despatched by fax after 17.00 hours on any day shall be deemed to have been received at 08.00 on the next day.
19.2 (d) by email to email@example.com
19.3 Any such notice shall be sent to the addresses set out on the first page of this Agreement.
20.1 Further assurance. You and we shall each use all reasonable endeavours to do or procure to be done all such further acts and things and execute or procure the execution of all such other documents as may from time to time be reasonably required for the purpose of giving the other the full benefit of the provisions of this Agreement, and the documents referred to in it.
20.2 Waiver and remedies. The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law or a waiver of a breach of this Agreement does not constitute a waiver of the right or remedy or a waiver of other rights or remedies or any other breach or default and we can still choose to enforce that term or take action in the future. The rights and remedies provided by this Agreement are cumulative and (subject as otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law.
20.3 Severance. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
20.4 Amendment. No amendment of this Agreement shall be effective unless and until it is in writing and signed by (or by some person duly authorised by) both of us.
20.5 Entire agreement.
(a) This Agreement, and each Statement of Work, constitute the entire agreement and understanding of the Parties and supersedes any previous agreement between the Parties relating to the subject matter of this Agreement; and
(b) in case of conflict between a Statement of Work and the main body of this Agreement, the relevant Statement of Work will take precedence.
20.6 Third party rights. No term of this Agreement shall be enforceable under The Contracts (Rights of Third Parties) Act 1999 by a third party.
20.7 Swift shall have the absolute right to re-assign this contract. The customer may not reassign without the written consent of Swift which will not be unreasonably withheld.
21. Dispute Escalation Procedure
21.1 Where at any point during the Term of this Agreement any matter relating to this Agreement cannot be agreed between us, it shall be escalated as follows:
(a) The matter shall be referred as soon as practicable to the Representatives for resolution;
(b) If the matter has not been resolved within ten (10) Business Days of being transferred to the Representatives, or if the Representatives determine it is capable of being resolved at that level, then the matter shall be immediately referred to the responsible person/CEO of you and us;
21.2 Any joint decision as to a resolution at any stage in the above process shall be recorded in writing and signed on behalf of each of us by the respective representatives and shall be final and binding on the parties. The Representatives shall keep a record of all such resolutions.
22. Law and jurisdiction
22.1 This Agreement is governed by the laws of England and Wales.
22.2 We each hereby submit to the exclusive jurisdiction of the courts of England for all purposes relating to this Agreement.
23. Definitions and Interpretation
23.1 In this Agreement, and the Statement of Works, unless the contrary intention appears:
“Acceptance Date” the date on which the System has passed successfully the Acceptance Tests;
“Acceptance Tests” the tests referred to in Clause 10 to test whether the System is functional;
“Business Day” a day on which banks are open in the City of London not being a Saturday or Sunday;
“Charges” the charges payable by you under this Agreement as set out in the Statement of Work;
“Confidential Information” all information which is imparted or obtained under or in connection with this Agreement on, before or after the Effective Date in confidence (whether in writing, verbally or by other means and whether directly or indirectly) or is of a confidential nature, relating to the business or prospective business, current or projected plans or internal affairs of either us or you;
“Connectivity” the connectivity services between Telehouse and the Hosting Centre provided by us as set out if applicable, in the relevant Statement of Work ;
“Data” your data that will be processed in or uploaded to the System;
“Deliverables” the Software, Hardware and/or Services as per the Statement of Work;
“Documentation” the operating manuals, user instructions, technical literature and all other related materials supplied to you relating to the Deliverables;
“Effective Date” the date of signature of this Agreement;
“Good Industry Practice” using standards, practices, methods and procedures conforming to the law and exercising that degree of skill, care and diligence, prudence and foresight which would reasonably and ordinarily be expected from a reasonably skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances;
“Hardware” the hardware supplied and installed by us as set out in the Statement of Work;
“Hosting Centre” If applicable where the Hardware will be located;
“Hosting” the hosting of the Hardware by us as set out in the Statement of Work;
“Intellectual Property Rights (a) patents, registered trade marks, domain names and registered designs (and all pending applications and renewals relating to the foregoing);
(b) rights in designs, rights in inventions (not yet subject to any patent application) trade or business names (including rights in goodwill or reputation), copyright, know how and Confidential Information (to the extent that the latter is capable of assignment) and database right; and
(c) all and any forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world;
“Losses” all losses, liabilities, damages, costs and expenses;
“Maintenance Services” the support and maintenance services in relation to the Deliverables;
“Manufacturer” the person, firm and company who makes the Products;
“Online Back Up” the online back up services of the Data to be provided as part of the Services set out in the relevant Statement of Work;
“Products” any Hardware, Software, any component or part thereof and/or any peripheral equipment including any support documentation in whatever format;
“Provision of bandwidth” the provision of bandwidth from the Hosting Centre as part of the Services set out in the Statement of Work;
“Representatives” the Parties’ representatives designated in the Statement of Work;
“Service Levels” the service levels referred to in the Statement of Work and as more particularly set out in our standard SLAs in force from time to time and published on our website;
“Services” the services of system design, pre-sales support, installation, modification, product configuration, training and post-sales support provided in accordance with this Agreement (excluding whose repair and replacement services offered under the Warranty);
“Software” the third party software to be provided by us to you hereunder as set out in the relevant Statement of Work;
“Specification” the specification as given by the Manufacturer in any of its published material or the specification issued by you setting out your requirements in respect of the supply of Products and/or Services;
“Statement of Work” each new order and cost estimate which sets out information relating to the provision of the Deliverables and Charges signed by each of us;
“Sub-Contractor” any company hired by us to provide all or any of the Deliverables;
“Swift Company” Swift Managed Services Limited (CN 07752164), Swift Computers Limited (CN 3211523) and any other company which is a subsidiary or holding company of any of these companies from time to time and having the meanings set out in s1159 of the Companies Act 2006;
“System” the Hardware, Software and Services running together at the Hosting Centre;
“Term” has the meaning referred to in Clause 4;
“Timetable” the timetable, for the supply of the Hardware and Software and carry out of the Services as set out in the relevant Statement of Work;
“Update” any new release, change, modification, enhancement and/or correction to the Software made generally commercially available;
“Virus” any software, bug etc. intended to corrupt, destroy or otherwise damage or interfere with the use of the System;
“Warranty” the warranty as provided by the respective Manufacturer of the Products in force from time to time; and
“Warranty Period” the duration of the Warranty as stated by the Manufacturers.
Section 2 – Webhosting and Co-location services
This section of the Terms and Conditions applies to website hosting on servers owned or operated by us (“Hosting”) and to our co-location Services ie storage of your computer server and related equipment (“Your Server”) on our or third party premises (“Co-location”).
You should read this section in conjunction with Section 1 of the Terms and Conditions which also applies to Hosting and Co-Location.
Additional customer obligations and representations
In the case of Hosting, it is your responsibility to ensure that Content (meaning Data placed on our servers by you or on your behalf or third party data facilitated by you eg chatrooms, discussion groups, FTP sites) is “server-ready” (including virus-free), to upload Content to our server and to check that it functions satisfactorily. You bear sole legal and other responsibility for all Content. We do not, and are not obliged to, check Content. Our rights to remove and take other steps in relation to Data are without prejudice to this subclause.
In the case of Co-Location, you bear sole legal and other responsibility for all aspects of management, maintenance, insurance and use of your server and all Data thereon.
You must observe our limits on data transfer and, if such limits are exceeded, pay the appropriate excess charge at our then current rates.
In the case of Hosting, you must not embark on any course of action, whether by use of your website or any other means, which may cause a disproportionate level of website activity without providing us at least seven day’s prior notice in writing. If you give notice or we otherwise become aware of such disproportionate use we may:
move your website to a dedicated server and charge our then current rate; or terminate some or all of the Services forthwith.
1.2.5 In the case of Co-Location, you may access the premises at which your Server is stored only insofar as reasonably necessary for the purpose of inspecting, maintaining or removing your Server and only at the times and as otherwise specified in any relevant Product Specification or, if none, during normal business hours subject to reasonable notice. You must ensure that such premises are kept in good condition and are returned to their original condition by the end of any visit. Whilst present at the premises you must not do anything which may be dangerous, or a nuisance, or inconvenience or disturb any persons at the premises and you must comply with all health and safety and other policies as may be notified to you from time to time in relation to such premises.
Section 3 – Domain Name registration services
1.1.1 This section of the Agreement applies to registration, administration, DNS hosting and renewals of domain names. You should read this section in conjunction with section 1 of the Agreement which also applies to these Services.
1.2 Registration, renewal and hosting of domain names
1.2.1 We will use our reasonable endeavours to register domain names you request and notify you of the outcome but we give no guarantee of success. No refunds shall be available once your domain name has been registered.
1.2.2 You must carefully check notification of new registrations and inform us immediately if anything is incorrect. You must not take any action in reliance on ownership of the domain name until you have received notification.
1.2.3 You accept that the registration and use of your domain name is subject to the terms and conditions of use (including dispute policies) applied by the relevant domain name registration authorities including Nominet UK in the case of .uk ccTLD domain names and the relevant registrar in the case of gTLD domain names. You must ensure that you are aware of those terms and conditions which are available on the relevant authority’s website and that you comply with them.
1.2.4 Newly registered domain names will be hosted on our DNS unless we are otherwise notified at date of the order. We shall be set up as the technical (or equivalent) contact by default on all newly registered domain names and on all domain names transferred to our DNS. The registrant, administrative and billing contact details will be as specified by you.
1.2.5 Domain names which expire are at risk of deletion. You are responsible for renewing your domain names well in advance of the expiry date. You are responsible for keeping your domain name contact details up to date and all other aspects of administration of your domain names. We have no responsibility for renewals or administration of domain names unless we expressly agree otherwise in writing.
1.2.6 If we host a domain name on our DNS and you are not using it to resolve to a website, we may redirect it to a holding or parking page. We also reserve the right to remove domain names from our DNS if you are not hosting a website at that domain through us or if any fees due to us are unpaid.
1.2.7 If domain names are removed from our DNS:
a) we may remove ourselves as technical (or other) contacts;
b) websites at those domains may become inaccessible; and
c) web and email forwarding will cease and emails may be lost.
- Domain Name Renewal Procedure
2.1 All domains are renewed on an annual basis, we will send out reminder emails 60 days, 30 days, 14 days and 7 days before expiry and then if no response give a client a call. We will send the emails to the email address on the account, it is the registrants responsibility to make sure their contact details are up to date. Swift Managed Services take no responsibility if your domain renewal fails due to your contact details being incorrect. If you do not wish to renew a domain please make sure you contact us a minimum of 14 days before your domain expires by emailing us at firstname.lastname@example.org All domains will be auto renewed 14 days in advance of the domain name expiring and will be billed 30 days in advance.
If you do not renew your domain before its expiry date it will have all services we provide suspended and you will have up to 30 days (protected period) after to renew the domain name at the original renewal fee. Please give us a call on 0208 963 7580 or email acccounts@Swiftmanagedservices.com as soon as possible After 30 days your domain will be suspended and will go into a 60 day grace period which you can still renew your domain name but with an additional redemption fee. This must be requested by email before the 80th day after your domain has expired, after 90 days your domain will be cancelled and deleted from the register and made available for resale through a third party registrar. Swift Managed Services will not guarantee the renewal of a domain name.
2.2 If you wish to transfer your domain name from Swift Managed Services to another provider you will be charged an administrative fee of £10 for one or multiple domains.
2.3 Please contact 0208 963 7580 or email technical@Swiftmanagedservices.com, outside of office hours please email us at email@example.com We will to respond to all points of contact within 2 business day and aim to resolve any issues you have within 5 business days.
Section 4 – Online Backup services
1.1.1 This section of the Agreement applies to our online backup services (“Backup”).
1.1.2 You should read this section in conjunction with section 1 of the Agreement which also applies to Backup.
1.2 Additional customer obligations and representations
1.2.1 You acknowledge that we retain title in any equipment which we supply to you for the purpose of Backup (“Equipment”). You hold the Equipment as bailee and all risk of loss or damage to Equipment passes to you on supply. We reserve the right to enter your premises during business hours to inspect, maintain or replace the Equipment. You must not use or interfere with the Equipment in any way other than for the purpose of Backup and in accordance with our prior instructions. You must not alter, modify or repair the Equipment. You are responsible for ensuring the security of the Equipment.
1.2.2 All software which we supply or make available to you for the purposes of Backup is subject to the licence agreement from the owner of the copyright in the software in Schedule You are bound by this licence insofar as it relates to the “Customer End-User”.
1.2.3 We will provide you with a unique encryption key. You acknowledge that it is your responsibility to keep this key safe and secure and that, if it is lost, access to your stored Data may also be lost.
1.2.4 You acknowledge that the speed of Backup is dependent amongst other things on the bandwidth made available by you and we give no warranty that any particular Backup procedure will be completed within any particular time. You also acknowledge that there may be delays or interruptions to your internet connection as a consequence of Backup.
1.2.5 You acknowledge that a particular backup process may fail for a number of reasons including (but not limited to) an Equipment power failure or problem with internet connections. For that reason we do not guarantee that backing up processes will function correctly or at all each time they are is scheduled. If such error comes to our attention, we will use reasonable endeavours to rectify the problem and to retry the process that failed.
1.2.6 You acknowledge that it is your ongoing responsibility to determine, and advise us in writing, precisely which Data you wish to have backed up.
1.3 Term and Termination
1.3.1 In the event of termination of Backup or this Agreement for any reason:
a) you must immediately return the Equipment to us in good condition less reasonable wear and tear;
b) you must immediately delete or return to us all copies of any software which we have supplied to you for the purpose of the Services (excluding your backed up Data);
c) we shall not provide any further Backup related services except: where the services included provision to you of your backed up Data on tape or other media, we will supply any outstanding Data in respect of backups completed before termination; and
d) we reserve the right to destroy any of your backed up Data which is in our possession and/or held on our behalf and/or which is on the Equipment.
Section 5 – Connectivity services
1.1. This Agreement sets out the general terms and conditions of supply upon which Swift Managed Services Ltd supply any Equipment and/or Services to you.
1.2. We subscribe to the industry codes of conduct which can be found at Cisas
1.3. Definitions for the terms used in this Agreement are set out in the Glossary below.
1.4. The Schedules to this Agreement set out terms and conditions specific to particular services we supply to you.
1.5. We both agree as follows:
Placing Your Order
2.1. You can place your order for Equipment and/or Services by any of these methods:
2.1.1. Using our Web Site; or
2.1.2. Electronically signing a completed Customer Application form sent to you by us via Email;
2.1.3. Sending us a completed Customer Application form by post to the address set out on Our Web Site
2.1.4. We will provide confirmation of your order using the contact details provided by you,
2.3. You are responsible for checking that your order is correct before you confirm and submit it. If you or your agent has made a mistake please call our Customer Services telephone number.
2.4. Subject to your right to cancel (if you are a Consumer) as set out below, placing your order constitutes your automatic acceptance of the terms and conditions of this Agreement.
3.1. We shall not be obliged to provide the Services and/or Equipment to you unless and until:
3.1.1. We have sent written notice to you (either by post or email) of our acceptance of the customer Application; and
3.1.2. We have received any initial Charges due from you in respect of the Services and/or Equipment and;
3.1.3. in the case of an XML order we have returned a successful response.
3.2. We will activate the Services, as soon as reasonably possible following completion of the matters referred to in Clause 3.1 above.
3.3. The Services will be activated at the installation address stated on the Customer Application.
4.1. Subject to your right to cancel if you are a Consumer, as set out at Clause 5.1, then unless otherwise terminated or suspended in accordance with this Agreement or amended in any Statement of works (order form) the following Services shall be provided for a Minimum Service Period of
36 months from the date of activation:
4.1.1. Leased Lines, including Ethernet in the First Mile and Generic Ethernet Access services;
4.1.2. Fibre to the Cabinet (FTTC) and Fibre to the Premises (FTTP);
4.1.3. Private Wide Area Network (PWAN)/Internet Protocol Virtual Private Network (IP VPN);
4.1.4. Unlimited broadband packages.
4.3. On expiry of the periods referred to in Clause 4.1 the Services will, unless terminated on or before the date of such expiry, continue until terminated pursuant to this agreement unless otherwise agreed in our Statement of works (order form)
- Right to Cancel Order
5.1. If you are a Consumer (i.e. you are not purchasing either wholly or in part for your business or you are not a business) you have the right, in addition to your other rights, to cancel the Agreement (other than for personalised or perishable products, video, audio or software products which have been unsealed by you, or other products which we have specified as non-returnable) and receive a refund from us. You must inform us in writing if you wish to cancel within 14 days, starting on the day after the contract between you and us is concluded by you completing the order confirmation and making payment of any initial fee due.
5.2. If you are a Consumer details of your right to cancel will also be provided during the order process.
5.3. If you choose to cancel then you must return any Equipment to us at your cost and risk and we advise you to ensure the Equipment is insured to its current market value during the return journey. You must ensure that you take reasonable care of the Equipment.
5.4. If you have not returned the Equipment within 14 days of cancellation or when requested by us to do so, whichever occurs first, we can collect the Equipment from you at your cost.
6.1. Except as otherwise provided in the Agreement, all Charges and other sums due from you in respect of the Services and/or Equipment shall be set out in the Price List and/or the Customer Application and/or the invoice relating to such Equipment and/or Services.
6.2. You will pay the Charges (without any offset or deduction of any kind) on either a monthly, quarterly or annual basis as stated in the Customer Application and/or the Price List and/or the invoice referred to at Clause 6.1 above. Where payment is not made in accordance with these terms, you will pay interest on any unpaid amounts calculated at 4% above Barclays Bank PLC’s base rate for the time being in force, calculated on a daily basis.
6.3. All amounts payable by you in accordance with the Agreement will be exclusive of Value Added Tax (“VAT”), or any other applicable tax or duty, which will be payable in addition to all such amounts due from you.
6.4. You agree that you will notify us as soon as possible of any change in your credit/debit card or bank account details used for sanding order, continuous card authority, Direct Debit or other ongoing payment method purposes under this Agreement. Should you terminate the Services in accordance with this Agreement, it is your responsibility to terminate any standing order or Direct Debit instruction with your bank.
6.5. We will send you a VAT invoice following completion of the provision of the Services or for regular monthly payments, subject to the following:
6.5.1. Where payment is taken in advance of an invoice for an existing service, we will send you a VAT invoice following receipt by us of such payment.
6.5.2. Where payment for the provisioning of a future service is made in advance we will not provide a VAT invoice until that service is provisioned. This includes where a pro-forma invoice for a deposit is raised prior to a service being provisioned.
- Changes to this Agreement – Pricing
7.1. If you are a Business User, we may increase the amount payable by you for any Services and/or Equipment by giving you 14 days’ notice in writing after the expiry of the Minimum Service Period.
7.2. If you are a Consumer we may increase the amount payable by you for Services and/or Equipment by giving you 30 calendar days’ notice in writing.
7.3. If you are a Consumer, and this change is to your material detriment, you may, within 30 days of receipt of such notice, cancel this Agreement without penalty by giving a minimum of 14 days’ notice in writing to us.
7.4. For the avoidance of doubt, installation and rental charges for services which are subject to a Minimum Service Period of more than 30 days shall remain unchanged during their applicable Minimum Service Period unless
7.4.1. We can reasonably demonstrate that the cost of providing the Service has increased because of a change by a third party supplier. Any such increase in our charges will not exceed the increased cost incurred by us in providing the Service. We will give 30 calendar days’ notice or such change; or
7.4.2. The cost of providing the service increases to comply with any legal or regulatory obligation, decision or request. We will give 30 calendar days’ notice or such change, save where our compliance with that legal or regulatory obligation requires a shorter period of notice or no notice.
Changes to this Agreement – Terms
8.1. We may have to change the terms and conditions of the Agreement. Where this is necessary we will notify you in advance before the changes to the terms and conditions take effect. The reasons we may make changes include, but are not limited to:
8.1.1. complying with any legal or regulatory obligation, decision or request;
8.1.2. changing the Price List in accordance with Clause 7 above;
8.1.3. changing the conditions relating to a Service in order to reflect contractual changes imposed upon us by our Suppliers;
8.1.4. introducing new products, improved Service features, variations that are necessary by virtue of any new law or regulation or as required by any regulator or other competent authority;
8.1.6. maintaining the integrity or security of the Service or any network;
8.1.7. improving clarity, or making corrections to typographical errors;
8.1.8. changing the processes and procedures detailed in any Product Handbook.
8.2. We will endeavour to let you know about any change referred to in Clause 8.1 at least 30 calendar days before it happens, save where our compliance with that legal or regulatory obligation requires a shorter period of notice or no notice.
8.3. In respect of changes to this Agreement made under Clause 8.1 such changes shall not require a new Agreement to be signed by the Parties and shall take effect at the expiration of such notice as is provided by 8.2.
8.4. We may from time to time make test or trial services and/or promotional offers (“Offers”) available. Such Offers may be subject to specific terms and conditions (“Promotional Terms and Conditions”) which we notify to you. Promotional Terms and Conditions may require a variation to this Agreement in which case you will be deemed to have accepted such variation on your acceptance of the Offer. Unless otherwise stated in the Promotional Terms and Conditions, an Offer may be amended or withdrawn by us at any time and without notice. For the avoidance of doubt we are not obliged to include you in any Offer we make to our other customers. Unless expressly permitted under the terms of a specific promotional offer, current and former customers, under the same or any other identity, are ineligible for any promotional offer reserved for new customers.
9.1. Any notice or other information to be served by us on you in accordance with this Agreement will be validly sent if in writing and sent by either email or first class post to your last known email or postal address. For the avoidance of doubt, by agreeing to these terms and conditions you expressly agree to receive correspondence by email, including notices relating to switching your services. Any notice sent by first class post will be deemed served 2 days after posting. Any notice sent by email will be deemed served on the day that it is sent.
9.2. Any notice or other information to be served by you on us in accordance with this Agreement will be validly sent if in writing and sent by either by recorded delivery post to our registered office or by email to firstname.lastname@example.org Any notice sent by email will be deemed served on the day that it is sent.
9.3. You are responsible for the maintenance of a correct and functioning email address.
9.4. You agree to keep the contact details which you have provided to us up to date.
- Ownership and Title to Goods
10.1. You agree that all static IP addresses are allocated to you on a rental only basis and will remain our property at all times.
10.2. We may make software available to you that enables you to use the Services. This includes but is not limited to software embedded in routers and firewalls. This software must not be copied or modified by you or anyone else unless allowed by Law. You undertake and agree that you will access the Services only via use of this software, or in an alternative way permitted by us, and you will not attempt to circumvent any security measures inherent in the Services. Where such software is owned by or licensed to us, we will, where possible, grant you a revocable, non-transferable, non-assignable, non-exclusive license to use it for the duration of the Agreement (or, if shorter the duration of any licence of the software to us). Where the use of such software by you requires you to enter a separate licence you agree to do so.
10.3. Where we provide managed equipment to you or your end users it will be our property at all times. You are responsible for making sure to keep our equipment safe and ensure that it is used properly at all times, and that they agree to follow the manufacturer’s instructions and any other reasonable instructions we provide. End Users are responsible for providing mains power and ensuring adequate ventilation and air circulation are available at the installation site. You agree that you are responsible for any loss, theft or damage to such rented equipment regardless of how it happens.
10.4. Within 14 calendar days of service termination, the equipment must be returned in good working condition to our office at your cost and risk. If you fail to do so, we reserve the right to charge you for replacement of the equipment. Payment for such charges must be received within 30 days. The amount of the charge is calculated as a percentage of the current market price to replace the supplied equipment or equivalent with genuine new Cisco equipment from Swift Managed Services Ltd current hardware supplier, the applicable percentage to be calculated from the table below, and based on the length of time the equipment has been deployed:
Where the number of years elapsed since the contract began is:
Percentage of market price payable at the time of return is:
Up to 1 year 80%
Between 1 and 2 years 65%
Between 2 and 3 years 50%
Between 3 and 4 years 35%
Between 4 and 5 years 20%
Over 5 years 20%
10.5. Ownership of any Equipment which we have expressly agreed to sell to you will not pass to you until we have received in full (in cash or cleared funds) all sums due to us in respect of the Equipment.
- Equipment; Delivery and Access Rights
11.1. Delivery of the Equipment will be made to the delivery address stated on the Customer Application.
11.2. Any managed equipment, and/or routers, which we supply to you, will be configured by us to meet your basic network and Internet specifications. Equipment will be connected by you unless otherwise pre-agreed in your schedule of works. You are not permitted to make any alterations to the configuration of such Equipment and any such alterations will invalidate our support obligation (if any) relating to such Equipment unless expressly authorised by us in advance.
11.3. You agree that any Equipment not supplied by us which is connected to or used with the Services is technically compatible with the Services and is used in compliance with all relevant instructions and safety and security procedures, and we have no liability for equipment not supplied by us.
11.4. Where the End User is a Consumer as defined by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 as an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession we shall deliver any Equipment sold without undue delay and in any event within 30 days of the date the contract was entered into.
11.5. Where the End User is not a Consumer (as defined by The Consumer Contracts Information, Cancellation and Additional Charges Regulations 2013 as an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession) we will use reasonable endeavours to deliver the Equipment or activate the Services by the delivery date advised by us during the provisioning process and will use our best endeavours to update you on any changes to the estimated delivery date.
11.6. If, despite those endeavours, we are unable for any reason to fulfil any delivery or activation on or by the specified date, we will not be deemed to be in breach of the
Agreement, nor (for the avoidance of doubt) will we have any liability to you for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery or activation. Any delay in delivery or activation beyond the stated delivery date (or any extended delivery date under Clause 19.1) will not entitle you to cancel the Agreement unless and until you have given 30 days’ written notice to us requiring the delivery or activation to be made and we have not fulfilled the delivery or activation within that period. Such notice may not be given until after the stated delivery date (or any extended delivery date if applicable). If you cancel the Agreement in accordance with this clause then:
11.6.1. We will refund to you any sums which you have paid to us in respect of that Agreement or part of the Agreement which has been cancelled; and
11.6.2. You will be under no liability to make any further payments in respect of that Agreement or part of the Agreement which has been cancelled, save that;
22.214.171.124. You will be liable for reimbursing us for the costs we incur from our suppliers upon such cancellation. If you cancel an ordered Service or any part of it, notwithstanding that such order has only been provisionally accepted by us, you agree to reimburse us for any costs we have incurred in preparing to deliver the Service in addition to the standard cancellation charge, as may be applicable at the time.
126.96.36.199. We will take all reasonable steps to mitigate any such costs. If you have had a site survey you will pay the full site survey charges. If the Service includes any excess construction charges such charges will be payable in full by you on cancellation of an ordered Service. If we have provided you with any Equipment you will return such Equipment to us immediately in full working order at your cost.
11.7. Risk of damage to or loss of the Equipment will pass to you upon delivery.
11.8. We will use our best endeavours to notify you as soon as possible if either we or our agents, employees, representatives or anyone else involved in providing the Services and/or the Equipment require access to your premises to install the Services and/or the Equipment or to carry out repairs, maintenance or upgrades. Where such notice is received by you, you agree to grant us and/or such other persons referred to, access to your premises. We will meet your reasonable requirements, and you agree to meet ours, concerning the safety of people on your premises.
- Suspension and Termination
Our Rights to Terminate
12.1. We will provide the Services for the relevant Service Period. However, we may have to modify, suspend, vary or discontinue the whole or any part of the Services (including, without limitation, any codes or access details or technical specifications associated with the Services) and will endeavour to give you as much notice as is reasonably practicable if we need to do so.
12.2. You are responsible for ensuring that the Services and/or Equipment are used in accordance with this Agreement. If you breach this Agreement we may, in our sole discretion:
12.2.1. Suspend or terminate this Agreement and/or any of the Services in whole or in part, for any period which we shall determine without notice or refund; and/or
12.2.2. Make a reasonable additional charge to cover our costs incurred; and/or
12.2.3. Block access to any part of the Services.
12.3. We will endeavour to ensure that the Services are of a high quality. In order to maintain the quality and safety of the Services, and any other services which we provide to our customers, we may from time to time:
12.3.1. Suspend, close down or restrict the whole or any part of the Services in order to carry out emergency or other repairs, maintenance and/or improvements or to prevent overload of the network or to preserve the safety, security or integrity of the Services and any Internet traffic conveyed (although we will give you as much notice as is reasonably practicable before doing so and will endeavour to carry out such works during the relevant scheduled maintenance periods as published by us); and/or
12.3.2. Give you instructions on how to use the Services. You agree to comply with any reasonable instructions we may give you in accordance with this Clause.
12.4. If your communications network does not conform to the standards set out in Clause 13.11. and by not so conforming causes detriment to us or any of our other customers we may, without prejudice to our other rights under Clauses 12.2 and 12.5, suspend your access to the Services until you have given a suitable undertaking to remedy the non-conformance.
12.5. You agree that we may suspend or terminate the Services and/or your Account and/or terminate the Agreement at any time, without prior notice or refund to you, and without affecting any of our accrued rights or claims:
12.5.1. Where we reasonably believe that the Services are being used in breach of Clauses
13.10, 13.11 or 13.13; or
12.5.2. For non-payment (when due) of the Charges or any other sum due from you under the Agreement or any other agreement with us; or
12.5.3. Where you have breached the Agreement in any other way on three or more occasions (and we have given you notice of the first two breaches); or
12.5.4. Where you are or you become Insolvent or suffer any distress or execution or other legal process to be levied or enforced or sued upon or against any part of your property, assets or revenue and which is not discharged or stayed within 7 days, or you cease or threaten to cease to carry on business; or
12.5.5. Where, at any time, an agreed method of payment is unavailable for collection under this Agreement; or
12.5.6. for any other material breach of the Agreement by you.
12.6. You also agree that where this Agreement or your Account is terminated for your breach, the Services will automatically terminate.
12.7. You agree that, notwithstanding the provisions of Clauses 4.3 and 12.4 (but without affecting our other rights to terminate under this Agreement), we may terminate all or any of the Services at any time, on 14 days’ notice, to expire at any time on or after the Minimum Service Period. Any refund that is due to you, will be made by us following the cancellation of the Service(s), and will be made direct to your credit card or bank account (notified to us for this purpose) by BACS transfer. Should you fail to provide suitable bank or credit card details to allow a refund to be made, you will lose the right to such refund, unless you are a Consumer, in which case we will send you a cheque to the customer’s address stated on the Customer Application.
12.8. Any suspension of the Services by us in accordance with this Agreement will not constitute a termination of the Agreement and we may (where we have suspended the Services due to your breach of this Agreement) require you to pay a reconnection fee to recommence the Services together with the relevant Charges.
Your Rights to Terminate
12.9. You may terminate all or any of the Services, at any time after the Minimum Service Period, by giving 14 days’ notice in writing to us in accordance with Clause 9.2 unless otherwise agreed in Specific Terms and Conditions. Where you terminate within the Minimum Service Period you will:
12.9.1. If you are a business, be liable to pay the Charges due in respect of that Minimum Service Period; and
12.9.2. If you are a Consumer, be liable to pay the Charges due in respect of that Minimum Service Period less any costs we save.
- Conditions of Use (Network and Services)
13.1. We will (in consideration of the Charges) deliver data packets to your network boundary only and will not be held responsible for the transit, routing and delivery of data packets to individual workstations on your network.
13.2. You agree that we may, at any time, scan any IP addresses allocated to you for anything which may affect the security of the Services (including open relays and/or open proxies or equivalent).
13.3. You agree that the configuration of your internal network remains your responsibility. Any interruption to the Services resulting from such configuration will not be regarded as an interruption in or suspension of the provision of the Services by us.
13.4. You agree that you are entirely responsible for any form of automated dialling system which you have set up (including, but not limited to, the reliability of such system and any call costs which may be incurred as a result of its use).
13.5. You acknowledge that the Internet is separate from the Services and that use of the Internet is at your own risk and subject to any applicable Laws. We have no responsibility for any goods, services, information, software, or other materials which you may obtain from a third party when using the Internet.
13.6. You also acknowledge that we may exercise editorial control over the content of our servers, but that we do not have the resources to ensure, nor are we capable of checking, the full content of our servers at all times. Neither we, nor any of our agents, contractors, licensees, employees and information providers, involved in providing the Services, are able to control the content of the Internet. You therefore agree that we shall not be held responsible for the publication, transmission or reception of any defamatory material or information of any kind, other than information which is inserted by us. You specifically acknowledge that we have given no warranties as to the quality, content or accuracy of information received through, or as a result of the use of, the Services.
13.7. You agree that you will promptly provide us with all information within your possession or control that we may reasonably require in order to provide the Services and to perform all of our other obligations under this Agreement.
13.8. You agree that you will be responsible for all use of the Services and (unless, we have agreed to supply it as part of the Equipment) for providing the necessary equipment and/or services (including, without limitation, a telephone line, if required), and for obtaining any permits and/or licences which are necessary for connecting to, and accessing, the Services. You agree that you are responsible for complying with all terms and conditions (including, without limitation, terms of payment) relating to any telecommunications service which is required by you to access the Services. You agree to comply with the manufacturer’s instructions for equipment you provide.
13.9. If, while using the Services, you discover that another person is using the Services, and is failing to do so in accordance with the Agreement, you must inform us immediately.
13.10. You agree that you will, at all times and for whatever purpose, use the Services and/or the Equipment in compliance with all Laws.
13.11. In addition to Clause 13.10, you agree that you will not use, and will take all reasonable precautions to ensure that nobody else within your control uses the Services and/or the Equipment:
13.11.1. Fraudulently or in connection with any criminal offence;
13.11.2. In a way that is false or misleading (including, but not limited to, asking for money under false pretences or impersonating others);
13.11.3. to send, knowingly receive, upload, download, use or re-use any material which is offensive, abusive, indecent, obscene (including, but not limited to, nudity, pornography, bestiality or activity that exploits, harms, or threatens to harm children), defamatory, or menacing (including, but not limited to, stalking, advocating violence against others or hate speech), or in breach of copyright (including, but not limited to, unauthorized sharing of copyrighted maps, music, photographs and other content), in breach of confidence, privacy or any other rights;
13.11.4. to cause alarm, distress, annoyance, inconvenience or anxiety;
13.11.5. to “spam” or to send or provide unsolicited advertising or promotional material or knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party;
13.11.6. to make or attempt to make false or hoax calls to emergency services;
13.11.7. in any way which, in our reasonable opinion, is or is likely to be detrimental to the provision of services to you or any of our customers, or to our business and/or reputation;
13.11.8. in contravention of any applicable licences or third party rights, or in contravention of our Acceptable Use Policies; or
13.11.9. in a way that does not comply with any instructions provided to you.
13.12. You may use the Services to link to other networks world-wide, provided that you comply, at all times, with any policies and/or terms and conditions imposed by the operators of such other networks.
13.13. You agree that you will not perform, or allow anyone else to perform, any unauthorised IP or Port multicasting, spoofing, broadcasting, vectoring, filtering, translation or routing.
13.14. Where you have ordered an Ethernet service, you confirm your understanding that, due to packet overheads, the throughput experienced may be slightly less than the bandwidth you ordered.
13.15. You agree to:
13.15.1. keep any records of your User Name(s) and/or Password(s) in separate places and take all necessary steps to ensure their security; and
13.15.2. keep your User Name(s) and/or Password(s) private and confidential and ensure, at all times, that it (or they) do not become known to anyone else.
13.16. You agree that you will notify us immediately if you become aware of any change in circumstances which may lead you to believe that your User Name(s) and/or Password(s) have become known to anyone else.
13.17. You agree that we may, from time to time, and on giving you reasonable notice wherever possible, suspend and/or change your User Name(s) and/or Password(s). You also agree that you will not change or attempt to change your User Name at any time.
13.18. Any fault with the Services and/or the Equipment which you detect must be reported to us as soon as possible either:
13.18.1. by telephone on our Technical Support Telephone Number; or
13.18.2. by email sent to us at: email@example.com; or
13.18.3. to such other telephone number or email address or at such other Web site as we may notify to you from time to time for this purpose.
14.1. You agree that, in view of their nature, your use of the Services is at your sole risk. Whilst we will endeavour to ensure that the Services are of a high quality, neither we nor any of our suppliers, agents, contractors, licensees, employees or information providers involved in Swift Managed Services Ltd providing the Services, give any guarantee that the Services will be uninterrupted or free from error. Where necessary for commercial, technical or other reasons:
14.1.1. a network or service provider connected to the Services may suspend or terminate its network connection to the Services; or
14.1.2. we may suspend or terminate the connection of the Services to another network or service provider.
14.2. Although we will try to ensure the accuracy and quality of the Services, the Services are provided on an “as is” basis and:
14.2.1. we do not accept responsibility for any use of or reliance on the Services or for any disruptions to or delay in the Services; and
14.2.2. we do not make any representations as to the accuracy, comprehensiveness, completeness, quality, currency, error-free nature, compatibility, security or fitness for purpose of the Services.
14.3. No warranty, term or condition, express or implied, is offered by us and our third party suppliers in relation to the Services, except as expressly provided in this Agreement. You agree that any such suspension or termination referred to in Clause 14.1 above will not constitute a breach by us of the Agreement.
14.4. You further agree that we will not be held liable for any costs, expenses, losses, damages or other liabilities (howsoever arising) which you may incur as a result of a suspension of the Services in accordance with Clause 12.3.1 above.
14.5. You agree and acknowledge:
14.5.1. that you are in a better position than us to foresee and evaluate any potential damage or loss which you may suffer in connection with the Equipment and/or the Services and/or any other service provided to you under the Agreement;
14.5.2. that we cannot adequately insure our potential liability to you; and
14.5.3. that the sums payable by you under the Agreement have been calculated on the basis that we shall exclude liability in accordance with the Agreement.
14.6. In no circumstances whatsoever will we be liable to you (whether in contract, for breach of duty, negligence or otherwise) for;
14.6.1. where you are a business:
188.8.131.52. loss of revenue;
184.108.40.206. loss of actual or anticipated profits (including loss of profits on contracts);
220.127.116.11. loss of the use of money;
18.104.22.168. loss of anticipated savings;
22.214.171.124. loss of business;
126.96.36.199. loss of opportunity;
188.8.131.52. loss of goodwill;
184.108.40.206. loss of reputation;
220.127.116.11. loss or corruption of, or damage to, data, systems or programs; or
18.104.22.168. any indirect or consequential loss or damage howsoever caused, which arises out of or in connection with any use of, or inability to use, the Services and/or the Equipment; or
14.6.2. where you are a Consumer:
22.214.171.124. loss of revenue;
126.96.36.199. loss of actual or anticipated profits;
188.8.131.52. loss of the use of money;
184.108.40.206. loss of anticipated savings;
220.127.116.11. loss or corruption of, or damage to, data, systems or programs; or
18.104.22.168. any indirect or consequential loss or damage howsoever caused, which arises out of or in connection with any use of, or inability to use, the Services and/or the Equipment.
14.7. You acknowledge that any firewall we supply is not designed, manufactured, authorized or warranted to be suitable for use in any system where a failure of such system could result in a situation that threatens the safety of human life, including without limitation any medical, life support, aviation or nuclear applications. Any such use and subsequent liabilities that may arise from such use are totally the responsibility of the End User, and all liability, whether in contract, tort or otherwise in relation to the same is excluded subject to Clause 14.9.
14.8. In any event:
14.8.1. Our liability to you for any failure of the Services or other event in any minimum period of notice that you must give to us to terminate a specific Service or this Agreement shall not exceed the Charges payable in respect of a notice period of 14 days.
14.8.2. Our aggregate liability to you of any sort (including for breach of contract and negligence) in connection with this Agreement shall not exceed the amount of Charges paid by you to us in accordance with this Agreement.
14.9. Nothing in this Agreement will limit our liability under Part I of the Consumer Protection Act 1987 or for death or personal injury caused by our negligence, or:
14.9.1. where you are a business:
22.214.171.124. for liability under any breach of the obligations implied by s.12 Sale of Goods Act
1979 or s.2 Supply of Goods and Services Act 1982;
126.96.36.199. (ii) for fraud or fraudulent misrepresentation; or
188.8.131.52. (iii) any other liability which cannot be excluded or limited by applicable law; or
14.9.2. where you are a Consumer:
184.108.40.206. for liability under any breach of the obligations implied by s.12, s.13, s.14, or s.15
Sale of Goods Act 1979 or s.2 or s.13 Supply of Goods and Services Act 1982;
220.127.116.11. (ii) for fraud or fraudulent misrepresentation; or
18.104.22.168. (iii) any other liability which cannot be excluded or limited by applicable law,
22.214.171.124. and any statutory rights you may have as a Consumer remain unaffected.
14.10. You agree that you will be responsible for and hold us and our suppliers, agents, contractors, licensees, employees and information providers, involved in providing the Services and/or Equipment, harmless from and against any and all losses, claims, damages, costs, demands, expenses and other liabilities which we suffer as a result of any breach by you of the terms of this Agreement, and from and against any claim brought by a third party alleging that the unauthorised use by you or modification by you of the Services and/or the Equipment, by you or under your Account, has infringed any intellectual property or other right of any kind, or any applicable legislation or regulation (whether international or domestic) but excluding any liability which we face as a result of criminal prosecution.
14.11. You agree to pay all costs, damages, awards, fees (including legal fees), judgments and other sums awarded against, or agreed to be paid by, us in relation to such claims referred to at Clause 14.10 above. You further agree that you will, as soon as possible, notify us of, and forward to us all correspondence received by you in relation to such claims.
14.12. You also agree that we shall have full authority to defend, compromise or settle such claims referred to at Clause 14.10 above, and that you will, at your expense, provide us with all reasonable assistance necessary to defend such claims.
14.13. Subject to clause 14.14, the only remedy available to you for a breach by us of the
Agreement shall be for breach of contract under the terms of the Agreement.
14.14. Nothing in the Agreement shall exclude or limit our liability for fraudulent misrepresentation.
- Intellectual Property Rights
15.1. You agree that you will not use the corporate marks (including photographs of buildings) of us or our suppliers or name or any element thereof either alone or in combination with another word or device mark, nor any other brand, get up or trade mark of us or our suppliers, where such use constitutes or would constitute an infringement of our registered trade mark or common law trade mark rights; or
15.1.1. use or register or attempt to register as a trade mark, company name or domain name, anything that is identical to, similar to, or likely to be confused with any of our or our suppliers’ corporate marks.
15.2. You will not display our corporate marks without our express permission and in any event you will not display our corporate marks after the termination of this Agreement.
15.3. However, nothing in clause 15.1 prohibits you from making legitimate use of our name or any trade mark of ours whether in the form of factual statements or in accordance with Section 10(6) of the Trade Marks Act 1994, or in any other way which does not constitute an infringement of our registered or common law trade mark rights.
15.4. All copyright and other intellectual property rights in this Agreement remain with us.
- Passing Off
16.1. You agree that you will not:
16.1.1. represent yourself as us or our suppliers;
16.1.2. misrepresent your relationship with us or our suppliers;
16.1.3. misrepresent the nature and/or effect of your contracts with End Users;
16.1.4. in any other way pass off your business as being ours or represent that you are in any joint venture with us in the absence of explicit prior written consent from us.
17.1. Neither failure nor delay by you or by us in exercising any of your or our rights under the
Agreement shall amount to a waiver of any such right, or operate so as to bar the exercise or enforcement of such right at any time in the future.
- Right to Assign
18.1. We may transfer, assign or sub-contract the whole or any part of our rights and obligations under the Agreement. You agree that you will not assign, sub-contract, sell, transfer, lease, licence or charge by way of security any of your rights or obligations under the
Agreement without our prior written consent. Breach of this restriction in any way (whether successful or not), will result in your Account being terminated.
- Force Majeure
19.1. You agree that we shall not be liable for any and all losses (including loss of data), damages, costs, claims and other liabilities which arise as a result of any delay or interruption in, or any non-delivery, or missed delivery or failure of the Equipment and/or Services due to circumstances beyond our or any of our suppliers’ reasonable control (including, but not limited to, fire, lightning, explosion, war, military operations, disorder, flood, drought, subsidence, industrial dispute, sabotage, terrorism, weather conditions, riot, failure of power supplies, mandatory network change freezes over the festive season or acts or omissions of local or central Government or other competent authorities including but not limited to highways authorities and Public Communications Providers) and acts or omissions or insolvency of our suppliers (a “Force Majeure Event”). In such circumstances, the time for performing our obligations (including any delivery date stipulated in an order form) shall be extended by a period equal to any delay caused to us as a result of a Force Majeure Event, whether or not we have given notice to you of the occurrence of such Force Majeure Event.
19.2. Should any event, referred to at Clause 19.1 above, affecting delivery of the Services continue for more than 60 days, then either we or you may terminate the Agreement forthwith. Where you terminate the Agreement you agree to reimburse any costs which we are liable for as a result of the termination.
- Data Protection
20.1. You agree that we may collect personal information from you via our Web Site and that we may hold all names and other information in the Customer Application in a computerised database for the following purposes (including but not limited to):
20.1.1. submission to a credit reference agency;
20.1.2. to establish and manage your account, including providing notifications to you regarding your account;
20.1.3. to provide you with information or support which you request;
20.1.4. to inform you about new services; and
20.1.5. to bill and collect for services.
20.2. The information we request may include personally identifiable information such as your name, billing and shipping address, telephone number, e-mail address or credit card information. It is solely your choice whether or not you provide this personally identifiable information. However, should you choose not to provide the information, we may be unable to process an order, fulfil a service or display certain content on our Web Site.
20.3. We do not sell or rent personal information, including personally identifiable information, to unrelated third parties.
20.5. You acknowledge that we may, from time to time, be required under regulations and/or legislation to co-operate with and/or disclose provide personal data, communications content and/or traffic data to an appropriate judicial, law enforcement or government authority lawfully requesting such information.
20.6. You agree that in order to improve the service we provide to you we may record and/or listen to calls received by our helpdesk. We and/or our suppliers may also record 999 and 112 calls.
21.1. Neither you nor we shall, without the prior written consent of the other, disclose any
Confidential Information of the other to any third party. Information will be considered Confidential if it is;
21.1.1. expressly identified, whether in writing or orally, as confidential at the time of disclosure; or
21.1.2. it contains the disclosing Party’s customer lists, customer information, technical information, pricing information, pricing methodologies, financial position, trade secrets, customer communications or proposals, benchmarking information, satisfaction surveys, or information regarding the disclosing Party’s business planning or operations.
21.2. Other than the terms and conditions of this Agreement, information will not be deemed Confidential information if such information:
21.2.1. is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; or
21.2.2. becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; or
21.2.3. becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or
21.2.4. is independently developed by the receiving Party.
21.3. Each Party will secure and protect the Confidential Information of the other Party (including, without limitation, the terms of this Agreement) in a manner consistent with the steps taken to protect its own trade secrets and confidential information, but not less than a reasonable degree of care.
21.4. Each Party may disclose the other Party’s Confidential Information where the disclosure is required by applicable law or regulation or by an order of a court.
21.5. The obligation of confidentiality under clause 21.1 shall continue for 24 months after the termination of this Agreement.
21.6. You acknowledge that a breach of clause 21.1 may cause harm for which monetary damages would not be an adequate remedy and that you or we may seek injunctive relief against such a breach.
22.1. The Agreement shall be governed by and construed in accordance with the laws of England and Wales and you agree to submit to the exclusive jurisdiction of the Courts of England and Wales. In the event that the Agreement is translated into any other language, the English language version shall prevail.
23.1. We and you will:
23.1.1. comply with all applicable laws, statutes and regulations relating to bribery and corruption (the “Anti-Bribery Laws”) including, but not limited to the UK Bribery Act 2010;
23.1.2. ensure that our and your associated persons (as defined in the UK Bribery Act 2010 and related guidance) comply with the Anti-Bribery Laws;
23.1.3. implement and maintain policies, procedures and controls, including but not limited to ‘adequate procedures’ (as defined in the Bribery Act 2010 and related guidance), to ensure compliance by us and you and our and your associated persons with the Anti-Bribery Laws, and will enforce them where appropriate.
24.1. If any provision, clause or sub-clause of the Agreement is held by any competent authority to be void, voidable, illegal, invalid or otherwise unenforceable, but would be valid and/or enforceable if any part of such provision, clause or sub-clause were deleted or modified, then that provision, clause or sub-clause shall apply with such deletion or modification as may be necessary to make it valid and/or enforceable.
24.2. If any part of the Agreement or the application of it to any person shall, for any reason, be adjudged by a competent authority to be invalid, void, voidable, illegal or unenforceable such judgement shall not affect the remainder of the Agreement which shall continue in full force and effect.
- Entire Agreement
25.1. Subject to clauses 14.9 and 14.14, this Agreement represents the entire agreement and understanding between you and us with regard to the supply of the Equipment and/or Services, to the exclusion of all prior agreements, arrangements and understandings. The
Agreement contains express promises and obligations on our part. You agree that any other term which might be implied or incorporated into the Agreement by statute, at common law or otherwise, is excluded to the fullest extent permitted by Law.
25.2. Subject to clause 14.14, you acknowledge and agree that in entering into this Agreement you have not relied upon any oral or written representation, statement or understanding (whether negligently or innocently made) by any of our employees, agents, subcontractors or representatives other than as expressly set out in this Agreement.
25.3. You further acknowledge and agree that you will have no remedy in respect of any untrue representation innocently or negligently made by us or any of our employees, agents, sub-contractors or representatives prior to entering into this Agreement upon which you may claim to have relied in entering into this Agreement, whether such representation was made orally or in writing.
- Third Party Rights
26.1. A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of any third party which exists or is available apart from that Act.
- Customer Complaints Code
27.1. We make a copy of our Complaints Policy available at www.swiftmanagedservices.com
- Interpretation of Clauses
28.1. References to the singular include the plural and vice versa. References to one gender include all other genders and vice versa.
28.2. The headings in this Agreement are for ease of reference only and shall not affect the interpretation of the Agreement.
28.3. Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time and include any by-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made thereunder.
28.4. All periods expressed in days shall mean calendar days unless specifically stated otherwise.
28.5. The term “includes” is not a word of limitation.
Schedule 1 – Terms and Conditions for Broadband Services
- We will provide you with transit and routing services for email and general Internet access.
- Where a broadband cease (termination) arises either as a cease request or as a on sequence of a Migration Authorisation Code/Notice of Transfer not being obtained and/or used in moving the service away from Swift Managed Services Ltd or where we receive an unsolicited cease, a cease charge at the rate published in our price list will be applied, and any usage Charges incurred up to the actual termination date remain payable.
- Expected minimum lead times (which are not guaranteed and are subject to variation) are:
Technology Type New Provide Migration from ADSL
Approximately 5 working days where line is in place
Approximately 5 working days where line is in place – 10 working days from June 2015
FTTC Broadband Engineer visit required;
Minimum 10-17 working days
Minimum 10-17 working days
FTTP Broadband Engineer visit required;
Minimum 14 working days
As new provide
- To ensure the best experience for our users we actively manage our network. During busy periods non-interactive bulk traffic (such as Peer to Peer traffic) will receive lower priority than interactive traffic such as video and VoIP.
- Your use of the broadband service is entirely at your own risk. We will not be liable for any loss or damage arising from any virus, Trojan horse, spam or other malicious content that you may receive while using the broadband service.
- You acknowledge and agree that our resources, used in providing the Services, are limited and that any reckless or wasteful use of the Services may affect those resources and may have a material impact on the services provided to our other customers. You agree that we may suspend or terminate an individual End User access to the Services where we decide, acting reasonably, that End User is using the Services in a reckless or wasteful manner. You further agree that we may terminate that End User’s access to the Services where we decide, acting reasonably, that they are continuing to use the Services in a reckless or wasteful manner after having first been suspended and then reinstated.
In these General Terms and Conditions of Supply the following words and phrases shall have the following meanings:
Policies means such policy or policies set out on our Web Site relating to the use of the Services, as modified or amended from time to time and “Acceptable Use Policy” shall be construed accordingly;
Account means your account with us for the provision of the Services;
Agreement means, in the following decreasing order of precedence, the Customer
Application, any Specific Terms and Conditions, including any Service Level
Artificial Inflation of Traffic means where the flow of Calls to a Revenue Share Service is
disproportionate to the flow of Calls which would be expected from good faith usage or an acceptable and reasonable commercial practice relating to the operation or use of such service or of telecommunication systems and any other situation where calls are made and/or prolonged fraudulently;
Business User means a Customer who uses the Services and/or Equipment in the course of any trade or business;
Charges means the charges payable by You in return for the Services and/or Equipment in accordance with Clause 6.1;
Consumer means you use the Services and/or Equipment otherwise than in the course of a business, trade, profession or occupation;
Customer means the person, group of persons or other entity whose name and address is or are set out in the Customer Application, and references to “your” shall be construed accordingly;
Customer Application means the application form for the supply by us of the Equipment and/or
Services, completed by, or in accordance with, an order from you;
Customer Services Telephone Number means 02089637580 or such other number as we display on our Web Site;
Direct Customer means a person or entity billed by us;
Electronically Signing means when the signature of a party is delivered as a scanned image (for example as a PDF) as an attachment to an email or through an online signature service (for example, EchoSign, Connectwise);
End User means the person or entity receiving the benefit of the service. End User and Customer are interchangeable terms when the customer is a Direct Customer;
Equipment means the equipment specified on the Customer Application;
Insolvency means in relation to the Customer any of the following (as relevant): the appointment of any nominee, trustee, supervisor, administrator, administrative receiver, receiver or liquidator pursuant to the Insolvency Act 1986 (as modified, amended or replaced from time to time); or the entry into any compromise or arrangement with its creditors or, being a Consumer, commits any act of bankruptcy, becomes bankrupt or enters into an individual voluntary arrangement; or if an order is made or effective resolution is passed for its winding up (except for the purposes of amalgamation or reconstruction of a solvent company); or the occurrence or sufferance of anything equivalent under any jurisdiction other than
England or Wales and “Insolvent” shall be construed accordingly;
Intellectual Property means all intellectual property of any kind whatsoever including without limitation any patent, trademark, trade name, service mark, copyright, moral right, rights in design, rights to inventions, utility models, copyright and related rights, database right, design right, community design right, semiconductor topography right, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in confidential information and know-how and any other intellectual or industrial property whether or not registered or capable of registration together with all or any goodwill relating to such intellectual property or any similar right in any part of the world and shall include any applications for the registration of any such rights capable of registration in any part of the world and include all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Law means the law of England and Wales, in force from time to time, and shall include (without prejudice to generality of the foregoing) all criminal law, laws relating to Intellectual Property and all laws, rules and/or regulations relating to the publication or transmission of information or data in electronic form. References to “Law” and “Laws” shall be construed accordingly;
Minimum Service Period means the minimum Service Period as set out in Clause 4.1 the Statement of Works (order form)
Network Connection means an Internet access service for use by multiple machines;
Ofcom means the Office of Communications or its successor body or authority;
Password means a password issued to the Customer for the Customer’s access to the Services
Service means a service provided by us to enable the Customer to gain access to the Internet and other services and facilities provided by us in connection with that service
Customer Application, and described in our literature at the date of completion of the Customer Application together with all services and/or facilities referred to in any Specific Terms and Conditions; all references to “Services” shall be construed accordingly;
Service Period means the period of an individual Service provided in accordance with this Agreement;
Statement of Works (order form) means the order form as signed by the client (end-user)
Technical Support Number means 02089637580 or such other number as we display on our Web Site;
Us or We means Swift Managed Services Ltd (Company Registration Number 07752164) of AMC House, 12 Cumberland Avenue, London, NW10 7QL and references to “our” shall be construed accordingly;
User name means an identifier issued to the Customer for controlling the Customer’s access to the Services; VAT means Value Added Tax chargeable under English law for the time being;
Web Site means https://www.swiftmanagedservices.com/;
Working Day means any day other than Saturdays, Sundays, public or bank holidays in England;
You means the person, group of persons or other entity whose name and address is or are set out in the Customer Application, and references to “your” shall be construed accordingly.
Section 6 – VoIP services
- Any order for VoIP telephony services which is accepted by us is conditional on you acknowledging:
1.1.1. The VoIP service may not offer all the features or resilience you may expect from a Public Switched Telephone Network fixed phone line;
1.1.2. You are responsible for maintaining up to date and accurate location details for the use of the emergency services;
1.1.3. If you use the service outside the United Kingdom you may not be connected to United Kingdom emergency services when dialling 999 or 112;
1.1.4. Emergency operators may not be able to identify your telephone number in order to call you back if the call either cannot be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the service is not operational for any reason, and emergency operators may also not be able to hold your line open in the event that you hang up;
1.1.5. You understand and accept that the equipment you use to make emergency calls requires power so to do;
1.1.6. You understand and accept that you should always have an alternative means of accessing 999 or 112 emergency services as your ability to make 999 or 112 emergency calls cannot be guaranteed and emergency calls will fail if, for example, there is a power cut or your broadband connection fails. These failures may be caused by reasons outside our control.
1.2. You understand and accept that the emergency call may not receive the same network priority as an emergency call made on a mobile network or on a circuit-switched fixed line.
1.3. You understand and accept that if we suspend or terminate the service you may not be able to dial 999 or 112.
1.4. You agree that you will not use the services in a manner that is in any way unlawful, fraudulent or in bad faith (including Artificial Inflation of Traffic) or, to your knowledge, has any unlawful, fraudulent or bad faith purpose or effect (including Artificial Inflation of Traffic); or in a manner that could materially affect the quality of any telecommunications service provided by us or our suppliers.
1.5. You agree that all service faults will be reported to us and not direct to our suppliers.
1.6. You consent under the Data Protection Act 1998, the Privacy and Electronic Communications Regulations 2003 and any other relevant data protection statutes or regulations to our providing our supplier with your name and address information for the purposes of recording in a database emergency services location information and supplying Directory Information in accordance with our obligations to Ofcom.
- Where you use our call recording service you accept that it is your responsibility to obtain legal advice to ensure you are fully compliant before recording any calls and that you will comply with all legal requirements when using any call recording product and agree that we have no liability for any costs or claims which may be incurred as a result of any failure by you to comply with any legal requirements.
- Where you use our service to upload audio files for music on hold you agree to obtain any necessary licences and consents as may be required and agree to indemnify us from any direct or indirect claims arising from your failure so to do.
3.1. This page may be printed to provide a label to attach to your equipment: I understand that this service allows calls to the emergency services numbers 999 and 112. However I understand that calls will fail if, for example, there is a power cut or my broadband connection fails.
Section 7 – Telephone Numbers
- Where we allocate telephone numbers to you, you will not acquire any rights in such numbers, and you will make no attempt to apply for registration of the same as a trade or service mark whether on its own or in conjunction with some other words or trading style.
1.1. If applicable, and unless you request otherwise, we will use reasonable endeavours to ensure your name, address and the telephone number allocated to you appear in a local telephone directory if required, and that they are available on the national directory service.
We cannot however accept any liability for errors or omissions in this directory listing by third parties.
1.2. Where we provide a number range to you, we cannot guarantee that these numbers are allocated to you until you have placed calls across them, and we will not be responsible for any costs you may incur as a result of a change in these numbers prior to this.
1.3. Where we provide numbers to you, we may for operational or other reasons change the numbers allocated to you, but we will not do so unreasonably.
1.4. You are responsible for complying with all regulatory and legal provisions governing the telephone numbers allocated by us to you.
- The national numbering scheme is controlled by Ofcom. Telephone numbers are a finite resource and in some cases availability is further constrained where Ofcom designates a Number Conservation Area. We reserve the right to pass on the charges which Ofcom levies on us for numbers in Conservation Areas, inclusive of any cost of administration.
- In the event that a telephone number or range of numbers is withdrawn by Ofcom or any of our suppliers we reserve the right to recover the number or range of numbers from you immediately where we are required to do so. We will use reasonable endeavours to supply you with a replacement number or range of numbers. We will not be responsible for any costs you may incur as a result of a change in numbering.
- We will use all reasonable efforts to ensure that you are able to retain your existing numbers in the event that you change suppliers of telephony service or addresses. There will be some instances in which this will not be possible, and you are responsible for ensuring that porting is available in your circumstances. During the porting process, some outages are likely, but we will use our best endeavours to minimize these.
- Where you take a premium rate number service you agree that your use of such a service must comply with all relevant legislation, regulations, guidelines and codes of practice and you agree to indemnify us from any failure of yours to so comply.
Number Conservation Area defined by Ofcom in their National Telephone Numbering Plan as an area where geographic numbers are in short supply;
Section 8 – IT Support Service including pre-paid hours, monthly subscription service and Ad-hoc services
1.1.1 This section of the Agreement applies to IT Support Service including pre-paid hours, monthly subscription service and Ad-hoc services. You should read this section in conjunction with section 1 of the Agreement which also applies to these Services.
1.2 During the supply of any Services relating to the support of hardware and/or software, the Swift Managed Services will investigate and/or attempt to rectify malfunctions with any hardware and/or software, subject to the following:
1.2.1 The Customer warrants that the hardware and/or software is fully serviceable on the Contract Date;
1.2.2 The Services do not include:
The repair of external or internal cables;
Issues relating to errors outside the scope of the Services; or
Remedies in respect of virus or malware attack where such attack has been caused by the negligence of the end-user. If applicable these will be charged at the Supplier’s discretion.
2. For the avoidance of doubt, any Services relating to the support of hardware and/or software do not include the support of hardware and/or software that is not listed in the Order Form.
2.1 Any Services relating to the support of hardware and/or software that do not require on-site assistance at the Customer’s Premises may be carried out remotely in accordance with the following:
2.1.1 The Customer agrees to permit the Swift Managed Services full and unrestricted remote access via third party proprietary software to the Customer’s computer systems and/or devices as may be necessary for the Swift Managed Services supply of the Services
2.1.2 The Customer agrees during the supply of the Services the Customer may disclose to Swift Managed Services Confidential Information; and
2.1.3 The Customer agrees and understands that the third party proprietary software will run on the Customer’s computer systems continuously in the background, regardless of whether a support request has been logged with the Swift Managed Services. For the avoidance of doubt, Swift Managed Services will have access to the Customer’s computer systems and to the individual machines used by the Customer’s users at all times via the third party proprietary software.
3. Any Services relating to support and/or managed services are subject to the following:
3.1 For the avoidance of doubt, any increase or decrease in the number of users registered for IT support packages and/or devices shall be subject to additional charges invoiced and submitted by tSwift Managed Services to the Customer;
3.2 Upon notification by Swift Managed Services of any hardware and/or software belonging to the Customer that has exceeded its reasonable lifespan and accordingly become a source of unreliability, the Customer shall replace such hardware and/or software at its own expense and within 1 week of Swift Managed Services notification. In the event that the Customer does not replace such hardware and/or software within 1 week, Swift Managed Services shall have the right to suspend supply of the Services under the Contract until such hardware and/or software has been replaced;
3.3 In the event that hardware and/or software has been added to the Customer’s computer systems and/or devices that would conflict with any hardware and/or software as set out in the Schedule, or in the event that the Customer has reconfigured any hardware and/or software that may affect the operation of the hardware and/or software as set out in the Schedule, Swift Managed Services shall have the right to suspend supply of the Services under the Contract or terminate the Contract in accordance with the Standard Terms and Conditions;
3.4 In the event that the Swift Managed Services advises the Customer that any hardware and/or software needs to be upgraded or replaced in order for the Swift Managed Services to provide the Services effectively, and the Customer subsequently refuses to upgrade or replace such hardware and/or software, Swift Managed Service shall have the right to terminate the Contract in accordance with the Standard Terms and Conditions.
4. IT Support Service; Including pre-paid hours, monthly subscription service and Ad-hoc IT Support services are subject to the following:
4.1. The Customer’s account is in order and up to date;
4.1.2 Swift Managed Services shall supply the Customer with a priority service upon notification to the Swift Managed Services of a support ticket, and/or a request for consultancy; Response will be gauged on priority based on severity and impact as laid out in the IT Support agreement. The Swift Managed Services shall use its best endeavours to meet the response times set out in the Service Level Agreements.
4.1.3. Pre-Paid hours are valid for a period of 12 months only and cannot be carried over.