I – GENERAL:
Any request for a subscription or Subscription Proposal will automatically constitute the Client’s full acceptance of these terms and conditions and, where relevant, any specific terms set out in Exclusive Networks’ Subscription Proposal.
Any information provided in catalogues, leaflets, manuals and price lists is indicative only and Exclusive Networks may make changes to any such information from time to time without notice.
No additions, omissions or modifications to any of the provisions of these terms and conditions shall be binding on Exclusive Networks unless it has given prior written specific agreement.
Any terms or special subscription provisions on the Client’s order or other correspondence that conflicts with these terms and conditions shall not apply unless Exclusive Networks has given prior written specific agreement.
II – DEFINITIONS:
CLIENT means any person or business information technology company which places an Order with Exclusive Networks in connection with the Contract.
END-USER means a user or ultimate beneficiary of the Equipment and/or Services supplied by Exclusive Networks to the Client and includes to those whom the Client transfers the use or benefit of such Equipment and/or Services.
EQUIPMENT means Hardware and/or Software made available to the Client in connection with the Subscription.
EULA (End-User Licence Agreement) means the terms and conditions governing the remote use of the Software and/or the Hardware.
EUSA (End-User Support Agreement) means the terms and conditions governing the use of the Services which may be outsourced to the Vendors (with the exception of the remote use of the Software, which is governed by the EULA).
HARDWARE means the relevant physical hardware such as computers, telecommunications devices, storage cases, safety housing and all accessories relating to a computer system.
INTELLECTUAL PROPERTY RIGHTS means all intellectual and industrial property rights, including patents, rights in registered and unregistered trade marks (including domain names), rights in registered and unregistered designs, utility models, trade or business names, confidential information, know-how, database rights, topography rights, passing-off rights, and copyright (including moral rights), performer protection rights or other industrial, intellectual or commercial rights (including rights in any invention, discovery or process), and applications for registration of any of the foregoing, and the right to apply, in each case in any part of the world.
ORDER means the Client’s written and signed acceptance, without amendment, of Exclusive Networks’ Subscription Proposal. Such Order shall be considered as a Subscription.
SERVICES may comprise:
SOFTWARE means a computer programme in respect of which the Vendor holds all the relevant proprietary rights.
SUBSCRIPTION PROPOSAL means Exclusive Networks’ commercial offer of subscription services to the Client for the hire of Hardware, the subscription to use Software and the performance of related Services which, for the avoidance of doubt, the Client does not take ownership or acquire title.
VENDOR means the manufacturer of the Hardware or the creator of the Software conferring user rights on the Client and/or End-User under the EULA.
III – SUBSCRIPTION REQUEST, SUBSCRIPTION PROPOSAL AND PLACING ORDERS:
The Client will issue to Exclusive Networks in writing in a form required by Exclusive Networks any request for subscription. Any such request is not binding on Exclusive Networks.
Upon receipt of the Client’s subscription request, Exclusive Networks may run a feasibility check and send the Client a Subscription Proposal which contains the details of the relevant Hardware, Software and Services it anticipates being performed and the proposed charges.
The Subscription Proposal is an offer by Exclusive Networks which may be withdrawn at any time and automatically expires at the end of the time limit set out in the relevant Subscription Proposal and, where not set out, after 30 days from the date of issuance of the Subscription Proposal. Acceptance must be communicated by signing and returning the Subscription Proposal.
Notwithstanding the above, Exclusive Networks’ Subscription Proposal shall lapse and not be capable of acceptance: (i) where the Euro (€) / Dollar ($) exchange rate changes by more than 5% between the date of issue of the Subscription Proposal and its acceptance by the Client or (ii) for any other specific reason set out in the Subscription Proposal.
For the avoidance of doubt, there will be no binding contract unless or until Exclusive Networks receives the Client’s written and signed acceptance, without amendment, of Subscription Proposal
Notwithstanding anything to the contrary, Exclusive Networks may nevertheless terminate and cancel an Order without liability in the event that the Client is in breach of or fails to fulfil any of its obligations referred to in clause XV.
IV – THE SUBSCRIPTION PROPOSAL, EQUIPMENT AND SERVICES:
The Subscription Proposal will contain a list of the relevant Equipment and Services ordered, together with any relevant applicable updates.
Provision of Hardware and Software:
The Client acknowledges that the Equipment is provided on hire and title does not pass to the Client.
When applicable, the Client acknowledges that (i) Exclusive Networks provides the Hardware from various Vendors for which it acts as an authorised distributor (ii) the technical specification and documentation relating to any such Hardware are the responsibility of the Vendor and (iii) therefore any such Hardware is provided by Exclusive Networks “as is”.
Each relevant Vendor shall grant to the End-User a right to use the Software provided or, where relevant, Software which has been integrated into the Hardware.
The conditions and obligations of the Client and/or End-User under which this right to use is granted are set out in the EULA provided by the Vendor and are set out again as an appendix to the Subscription Proposal, invoice, or to these terms and conditions. The Client shall forward the EULA to the End-User, ensure it is signed and accepted by the End-User and the Client shall procure the End-Users compliance with the EULA.
In the absence of any specific licence terms, the right to use Hardware or Software provided, or which is an integral part of Hardware provided by Exclusive Networks, is limited to the operational implementation of one copy only of such Software, and the Client shall have no right to reproduce, modify or correct any part of the Software.
Subject to clause XII and to the maximum extent permitted by law, Exclusive Networks shall not have any responsibility however arising for any issues that may affect the Hardware or Software nor any temporary interruption (in particular to carry out correction, updates or for any other reason) by the Vendor.
Performance of related Services:
In the event that the Equipment provided is subject to maintenance or update services by the Vendor, Exclusive Networks shall offer such performance or update to the Client. The installation of any updates shall be the sole responsibility of the Client.
Exclusive Networks may supply, either directly, via the Vendor or a third party provider, additional services such as installation, which will be set out in a separate order on terms set out in the Subscription Proposal and which shall be invoiced in addition to the cost of the subscription services.
The Client acknowledges that (i) upon provision of Equipment, Exclusive Networks does not transfer any Intellectual Property Rights to the Client and (ii) any intellectual property rights are the property of the Vendor. Exclusive Networks is not responsible for the production, installation or maintenance of Software that it has not supplied as part of the Subscription Proposal.
V – DURATION
The Subscription taken out by the Client is for the minimum period of time mentioned in EXCLUSIVE NETWORKS’ Subscription Proposal as accepted by the Client.
If this first Subscription period is for a term equal to or greater than one year, after it expires, the Subscription will be automatically renewed for fixed successive periods of one year.
If this first period is for less than one year, the Subscription will be automatically renewed for fixed successive periods of one month.
Each party has the right to refuse to renew the Subscription by notifying the other party in writing at least one month before the initial contract or each extended period expires.
Refusal to renew is free; it does not have to be justified and it does not entitle the other party to compensation.
VI – CHARGES:
The charges for the provision of the Equipment and the performance of the Services are set out in the Subscription Proposal. The method of payment shall be as stated in the Subscription Proposal and may not be changed at any point throughout the duration of the contract.
Orders for special services or products that do not appear on Exclusive Networks’ Subscription Proposal shall be invoiced separately.
If the subscription gives the Client the option to activate multiple licences for the same Software, each new licence activated by the Client shall be invoiced at the price set out in the Subscription Proposal.
VII – INVOICING AND TERMS OF PAYMENT:
Exclusive Networks may issue electronic invoices to the Client instead of paper invoices.
Unless stated otherwise in the Subscription Proposal, the charges are payable on a quarterly basis in advance. The first quarterly payment shall be made on receipt by the Client of the Equipment and/or the access keys required for the subscription (whichever is earlier), irrespective of when it is/they are activated and/or used by the Client.
Payment shall be due for any quarter that has commenced and no refunds will be given.
All charges are exclusive of any applicable value added tax and all taxes, duties, imposts and levies due from time to time, which shall be payable in addition.
All other amounts are payable on the Client’s acceptance of Exclusive Networks’ Subscription Proposal.
Payment shall be made by by direct debit.
Payment shall not be made in cash.
The Client may not for any reason withhold, make deduction from, set off against or make abatement of any payment due to Exclusive Networks.
VIII – DELIVERY AND ACTIVATION OF SERVICE:
Any delivery dates given to the Client in respect of the Equipment and/or activation of the Service are indicative only and time is not of the essence.
In addition to its other rights, Exclusive Networks reserves the right without liability to postpone, suspend or cancel the supply of any Service (in whole or in part) in the following circumstances:
– the Client does not make payment in accordance with these terms;
– the Client fails to promptly provide technical, financial or commercial information or specifications required for shipping;
– in the event of Force Majeure (as referred to in clause XXII).
Any time required for obtaining any clearances, administrative authorisations or completing all formalities shall be in addition to the estimated times referred to above.
IX – TRANSPORTATION AND DELIVERY:
Exclusive Networks shall deliver the Equipment specified in the Subscription Proposal to the address specified in the Subscription Proposal.
Exclusive Networks nor the freight agent or the carrier shall be responsible unless written evidence has been provided to Exclusive Networks and the relevant freight agent or carrier in writing within 2 days of receipt of the Equipment.
The Client is responsible at its own cost for promptly providing all access and facilities required at the delivery address to receive delivery of the Equipment.
X – TRANSFER OF RISK, CARE AND MAINTENANCE OF EQUIPMENT PROVIDED:
Any risks relating to the Equipment provided including, without limitation, the risk of loss, theft or damage passes to the Client on delivery and shall remain with the Client unless and until the Equipment is returned to Exclusive Networks at the end of the relevant term.
The Client shall, at its own cost, maintain the Equipment and shall keep it in good and substantial repair.
The Client shall immediately carry out all maintenance operations, checks and updates as recommended or requested by Exclusive Networks from time to time until the Client returns the Equipment to Exclusive Networks.
On receipt of the Equipment and unless and until the Equipment is returned, the Client shall insure the Equipment provided, or have it insured by the End-User, with reputable insurance companies, against the risks of damage, theft or fire, stating that Exclusive Networks is the owner of the Hardware and its interest is noted on the insurance policy. The Client shall supply proof of the insurance policy taken out by the Client or the End-User to Exclusive Networks within 30 days of request. The Client is not authorised to modify the source code of the Software.
The Client shall not and shall procure that no third party shall (including any End User), without the prior written consent of Exclusive Networks, transfer title to or allow the creation of any mortgage, charge, lien or other security interest in respect of it.
Any breach of this clause shall constitute a material breach as set out in clause XVII.
XI – WARRANTY:
Any warranty in respect of the Equipment is set out and provided by the relevant Vendor in accordance with the relevant EULA.
The warranties shall only apply to Equipment which Exclusive Networks considers are not as a result of incorrect use or handling by the Client.
The warranty does not apply where any work is carried out without Exclusive Networks’ or the Vendor’s prior written agreement.
Exclusive Networks’ sole obligation in respect of the warranty is to arrange for the repair or replacement by the Vendor of the relevant Equipment.
Any return of Hardware or any component under the warranty is subject to (i) the prior written agreement of Exclusive Networks and (ii) the Client contacting Exclusive Networks’ telephone helpline.
If the Hardware or any component is acknowledged as faulty, Exclusive Networks shall send the Client a product return reference number. The Client shall return any product that is acknowledged as faulty to Exclusive Networks in its original packaging, accompanied by its product return reference number.
The replaced product shall (Hardware or Hardware component) immediately be sent back to Exclusive Networks by the Client. Exclusive Networks provides the replacement product to the Client in place of the replaced product.
This warranty from the Vendor is in lieu of and replaces all other warranties.
XII – LIABILITY:
The Client acknowledges that (i) it is acting in the course of its business (ii) it has full knowledge of the Equipment and (iii) it is fully informed of the purpose and use for which the Hardware or Software is intended.
Exclusive Networks shall have no liability (however arising) for (i) the Equipment’s incompatibility with any other hardware or software and (ii) for any issues, whether direct or indirect, temporary or permanent, which the installation of the Equipment may have on an already-installed system.
The Client shall use the Software in accordance with the terms of each user licence applicable to the Software.
The Client shall be solely responsible for dealing with any litigation or dispute concerning the Intellectual Property Rights relating to the Software and shall not seek any claims, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities or seek from Exclusive Networks including by requiring involvement in a claim or court proceedings.
Without prejudice to any other limitations on liability under these terms and conditions, the parties agree that the liability of Exclusive Networks for any claims arising out of or in connection with the subscription, the Equipment and/or the Services, however arising, shall be limited in respect of all claims in aggregate to a sum equal to the total amount paid (excluding taxes) in respect of the subscription.
The parties agree that neither party shall have any liability, however arising, out of or in connection with the subscription or whether caused directly or indirectly by the use or operation of the Hardware or Software, their malfunctions, errors or unavailability for any:
Nothing in this clause XII shall limit the Client’s payment obligations under these terms and conditions (including by way of damages for termination as a result of the Client’s material breach for the unexpired period of the contract).
The Client agrees that each of the sub-clauses in clause XII (i) and each of the sub-paragraphs clause XII (i) (a) to clause XII (i) (j) above constitute separate terms and the words preceding clause XII (i) shall be applied to each of them separately. If there is any claim or finding that any such individual sub-clause or sub-paragraph is unenforceable for any reason, such unenforceability shall not affect any other provision within clause XI or otherwise.
The term “however arising” when used or referred to in clause XII covers all causes and actions giving rise to the liability of Exclusive Networks arising out of or in connection with these terms and conditions and/or the Equipment and/or the Services including (i) whether arising by reason of any misrepresentation (whether made prior to and/or in these terms and conditions) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; or (iii) whether caused by any total or partially defective Goods or Services.
Notwithstanding the above, no exclusion or limitation of liability under these terms and conditions shall apply to the extent prohibited or limited by law and in particular, nothing in these terms and conditions shall affect liability:
The Client acknowledges that Exclusive Networks is dependent on the Vendor for updates or the installation of fixes and Exclusive Networks is unable to make these available to the Client prior to receiving such updates and fixes from the Vendor and cannot be held liable for any delays incurred nor the consequences of any such delays however arising where the Client has been informed in advance of such delay.
All warranties, guarantees, conditions, terms and liabilities express or implied, statutory or otherwise, on the part of Exclusive Networks, in respect of compliance with descriptions, the quality or fitness for purpose of the Equipment which are not expressly set out in these terms and conditions are excluded except to the extent such exclusion is prohibited or limited by law.
XIII – FAILURE TO PAY:
Exclusive Networks shall be entitled to charge interest on all late payments, starting from the date the payment was due, at a rate of ten per cent above the Bank of England’s Base Rate. In this case, the applicable rate during the first six-month period of the year concerned is the rate in force as at 1st January of the year in question. For the second six-month period of the year concerned, it is the rate in force at 1st July of the year in question.
If the Client does not make payment more than a month after receipt of written notice requiring payment, this shall be deemed to constitute a material breach within the meaning of clause XVI.
Exclusive Networks reserves the right without liability to suspend the subscription or terminate the contract (in whole or in part).
In addition to any other rights it may have, Exclusive Networks may be entitled on the late payment of invoices to charge liquidated damages at a sum fixed at 10% of the amount of the debt shall be payable by the Client under this clause.
XIV – MARKETING OF THE EQUIPMENT AND SERVICES BY THE CLIENT:
The Client is authorised in the context of its business to make the Equipment available and hire to its own clients (End-Users) in connection with the subscription.
The Client shall, prior to supplying Equipment or services received under the subscription to any third party, give Exclusive Networks the full contact details of the End-Users.
The Client shall itself and shall procure its own clients (including any End-Users) also comply with all of the obligations arising from these terms and conditions and in particular the obligations relating to:
– the care, maintenance and protection of the Equipment provided ;
– the transfer and export of the Hardware or Software;
– complying with legislation relating to anti-bribery, corruption and embargos;
– the EULA and EUSA by the End-User and obtaining their express agreement;
– the protection of personal data.
Any breach of any of these terms and conditions by an End-User shall be deemed to be a breach by the Client. The Client shall indemnify and keep indemnified Exclusive Networks against all claims, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities arising out of or in connection with such breach.
Where this contract includes the provision of Software or its updates, the Client shall (i) obtain from the End-User its undertaking to use the Software or the updates in accordance with the EULA (ii) obtain signature of the EULA from an End-User and (iii) comply and shall procure the End User complies with the EULA. The Client shall not be entitled to claim any discount, extension, rebate, reduction in price, nor damages from Exclusive Networks in the event of a breach of the EULA, even if this leads to a ban on use of the Software.
The Client undertakes to obtain from End-Users appropriate consent in accordance with relevant data protection legislation so that the personal details of the End-User may be provided to Exclusive Networks and the Vendors.
The Client undertakes to obtain from End-Users appropriate consent in accordance with relevant data protection legislation to enable Exclusive Networks to use consumer and usage data relating to the Equipment to (i) optimise the service or (ii) assist with marketing.
XV – EXPORT OF HARDWARE BY THE CLIENT OR LOCATION OF THE BENEFICIARY OF THE SERVICE:
The Equipment provided by Exclusive Networks may be subject to export restrictions, in particular as regards dual use (civilian/military) goods and technologies, due to local, European or United States regulations, among others. In the European Union, the transfer of such goods and technologies may depart from the principle of free circulation.
These obligations may in particular take the form of export licences to be obtained from the ECO (the UK) and/or the BIS (United States) and the archiving of the documents relating to these export operations.
The Client acknowledges and accepts that the Hardware and Software hired from Exclusive Networks are subject to the laws and regulations relating to export checks that are applicable in the UK, the European Union, and the United States.
The Client undertakes not to export, re-export or transfer the Hardware or Software received from Exclusive Networks, nor allow overseas clients to have the benefit of the subscription, even temporarily, directly or indirectly, without obtaining the prior import or export authorisation required from the relevant authorities (United States, European or English).
The Client undertakes to provide to Exclusive Networks when making its initial request to take up the offer, the name of the End-User, their Order number and the final destination of the Order. Failing this, the Client shall procure that the End-User signs the End-User Certificate which Exclusive Networks shall send the Client. The Client must inform its own clients that, for those products which have a United States export licence, the End-User may be subject to a check by the United States authorities.
The Client is responsible for full compliance with the export control regulations and Exclusive Networks shall not be held liable for the Client’s failure to comply with the obligations arising from these provisions and the related regulations.
In respect of European and English regulations that may apply, the Client may consult the following official websites:
In respect of United States regulations that may apply, the client may consult the following official website:
The Client acknowledges that if it is located in the UK (or in the EU) that, for dual use products or technologies, exporting outside the UK or the EU EU or the intra-EU transfer of may require compliance with the relevant laws of England, Europe and the US and for the avoidance of doubt, complying with one does not remove the need to comply with all others.
Any breach of the terms of this clause shall be deemed to constitute a material breach within the meaning of clause XVI.
The Client shall indemnify and keep indemnified Exclusive Networks against all claims, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities arising out of or in connection with non-compliance with this clause, including without limitation arising from any violation of the English, European or the US laws relating to export checks on dual use (civilian/military) technologies.
XVI – CLIENT’S OBLIGATIONS:
The Client agrees and undertakes to comply with (i) the highest commercial standards (ii) all applicable law in its territory and (iii) not to damage or bring into disrepute Exclusive Networks’ reputation. Without limiting the above, the Client shall promptly provide detailed and current information about the features, performance and potential uses of the Equipment. The Client also undertakes to obtain and renew all necessary consents for the use of the Equipment in the country in which it is to be made use of.
The Client undertakes to comply with and to ensure compliance with of the Intellectual Property Rights protecting the hardware provided by Exclusive Networks as well as the Software for which a licence is granted.
XVII – EARLY TERMINATION OF THE CONTRACT:
Without affecting any other rights and remedies it may have, Exclusive Networks shall be entitled to terminate the contract or suspend its performance without liability to the Client by giving notice in writing to the Client at any time if the Client (i) commits an irremediable material breach of these terms; or (ii) commits a material breach of these terms which is capable of being remedied but has failed to remedy such breach within 8 days after having received notice in writing from Exclusive Networks requiring the same (and the parties agree that Exclusive Networks may rely on a single material breach).
In addition to any other rights to claim damages (including any amounts which would have been payable had the contract not been terminated early), Exclusive Networks will be entitled to claim any unpaid sums due and any costs incurred for the dismantling and return of the Equipment.
Breaches of the following obligations shall be deemed to constitute a material breach:
– Payment of any of the amounts due to Exclusive Networks;
– The obligations to take care, maintenance and repair of the Hardware;
– Compliance with clause XV;
– The obligation to provide the contact details of beneficiaries and/or End-Users of the subscription services or of the Hardware and/or the Software;
– The obligations relating to ethics and laws relating to anti-bribery, corruption and embargoes.
– If the Client is subject to an embargo.
The Client shall only be entitled to terminate this contract if Exclusive Networks (i) commits an irremediable material breach or (ii) commits a material breach of these terms which is capable of being remedied but has failed to remedy such breach within 8 days after having received notice in writing from the Client requiring the same. For these purposes, a material breach shall include:
XVIII – RETURN OF EQUIPMENT AT END OF CONTRACT:
On any termination of the contract, however arising, Exclusive Networks is entitled to cease providing the Equipment and the Services. The Client shall immediately return the Hardware to Exclusive Networks, in good operational and general condition and state of repair, to the location in England notified by Exclusive Networks. The costs of dismantling, packaging and return together with the risk shall be borne by the Client.
The Client shall permanently and securely delete all data relating to the Hardware stored on drives, disks and other electronic media and any other copy. As standard deletion functions for operating systems, such as the recycle bin or formatting the hard drive are insufficient, the Client undertakes to use specific software which permanently overwrites data by successive deletions of such data. Exclusive Networks may request written confirmation from the Client that the data has been deleted. The data shall thereafter be deemed deleted before the return of the aforementioned Hardware, and neither Exclusive Networks nor the Vendor may be considered liable for the use of the aforementioned data by a third party if the Client has not in fact carried out the deletion.
If the Client does not return the Hardware and/or there is a delay in returning it of more than eight days from the date of termination, the Client shall pay liquidated damages at a rate equal to a pro-rated amount for the last quarter. Any monthly period commenced during the period of delay in returning the equipment shall be payable in full.
Return of Software: Without prejudice to the rights acquired by the Client from the Vendor, in the event of termination of the contract, the Client shall: a) cease using the Software and related documentation and uninstall it, b) return the Software to Exclusive Networks, or such person designated by Exclusive Networks, and return all documentation and copies relating to the Software in the media provided in each case.
The Client is responsible for the retrieval of the Hardware and Software from its own clients and End-Users and the return of these to Exclusive Networks on termination of the contract.
The charges relating to the subscription will remain payable by the Client until the return of all of the Equipment to Exclusive Networks. Any quarter which has already commenced is payable.
If the Hardware or Software are damaged, Exclusive Networks may at its option either:
XIX – PERSONAL DATA:
The contact details which constitute personal data belonging to the Client, its legal representatives and/or any other signatory to the contract – limited and as necessary for the performance of the contract – shall be handled in a lawful and transparent manner.
This Client acknowledges that this data will be retained for a maximum period of 7 years from the end of the contract and shall be handled in such a way as to ensure appropriate security.
The individual in question has the right to withdraw his/her consent, to access his/her personal data and to request its rectification, deletion or restriction, to oppose the transfer of his/her data, to request the deletion of his/her personal data, if its retention is no longer necessary in respect of the purposes for which it was collected, and to request the portability of his/her personal data. These requests must be sent by post to Exclusive Networks’ head office addressed to the Data Protection Officer, who will have a period of one month from receipt to respond to the request. The person concerned may refer any request concerning his/her personal data to the Information Commissioner’s Office.
XX – ETHICS AND COMPLIANCE WITH THE LAW:
The Client undertakes to comply with all applicable laws.
The Client (including its officers, directors, employees and agents) shall comply with all applicable anti-corruption laws, including without limitation, the USA Foreign Corrupt Practices Act, the UK Bribery Act and “Sapin II” (together, the “Anti-Corruption Laws”).
The Client shall in particular refrain from: (a) taking any measures or permitting or authorising any action by a third party in violation of the Anti-Corruption Laws; (b) using any sum of money or any other consideration paid by the other party for illegal purposes, including for purposes which are in breach of the Anti-Corruption Laws, with the aim of assisting the other party in wrongfully obtaining or retaining an agreement or contract or any wrongful advantage; and (c) directly or indirectly offering, promising or giving to, or seeking or accepting from a civil servant or public sector employee of a government-controlled entity, political party or any other physical or moral person anything with the aim of wrongfully obtaining a commercial or financial advantage or influencing any action or decision. Each Party shall in good faith refrain from taking any measures he believes violate the laws or commercial policies applicable to the business relationship between the parties. To the Client’s best knowledge, none of its officers, directors or employees are: (a) civil servants or public sector employees; (b) employed by a government-controlled company; or (c) active representatives of a political party. The Client confirms that neither it, its officers, directors nor employees have been formally accused and/or found guilty of fraud offences under applicable anti-corruption regulations. The Client shall immediately inform Exclusive Networks in the event of a change in circumstances.
Notwithstanding any other provision to the contrary in these terms and conditions, Exclusive Networks may immediately terminate the contract in the event of the Client’s failure to comply with the provisions of this clause; furthermore, the Client shall indemnify and keep indemnified Exclusive Networks at all times against all claims, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities arising out of or in connection with non-compliance with this clause by the Client. The parties agree to comply fully with all laws applicable to the sale and distribution of the products hired in accordance with these terms and conditions.
The Client shall comply with all applicable laws regarding the protection of personal data and privacy and in particular to obtain the consent of its clients and End-Users to transmitting their personal data to Exclusive Networks so that the latter may make lawful use of it, in particular for commercial and marketing purposes.
XXI – ASSIGNMENT:
Exclusive Networks shall be entitled to assign, novate, charge, sub-contract or declare a trust over all or any of its rights and obligations under these terms and conditions. The Client shall enter into any documentation, including novation agreements, reasonably required by Exclusive Networks in order to effect any such transfers to third parties.
The Client shall not without the prior written consent of Exclusive Networks assign, novate, charge, sub-contract, transfer title to or allow the creation of any mortgage, charge, lien or other security interest in respect of, or declare a trust over all or any of its rights and obligations under these terms and conditions and/or the Equipment.
XXII – FORCE MAJEURE:
Force Majeure means any event beyond the reasonable control of Exclusive Networks, including without limitation, any failure on the part of the Vendor, strike, lock-out or other industrial disputes (whether relating to Exclusive Networks or its suppliers), epidemic or pandemic, war, requisition, act of God, fire, flood, accident,accident with equipment, significant shortage of parts or cessation of manufacture or transport disruption or delays. Any actual or potential export ban by the government of the country of origin of the Hardware or Software shall also be considered a force majeure event.
Exclusive Networks shall not be liable in any way for any loss, damage or expense arising directly or indirectly from any hindrance, failure or delay in performing any obligation arising out of or in connection with any event of Force Majeure. If an event of Force Majeure continues for more than a period of 30 days, Exclusive Networks shall be entitled at its discretion to perform, suspend performance of, and/or terminate the Subscription Proposal.
XXIII – NOTICES:
Any notice given under these terms and conditions shall be in writing including email which is acknowledged to be received (either by read receipt or reply of acknowledgment) (but excluding fax) and may be served by leaving it at, or by sending it pre-paid first class post or recorded delivery to, the intended recipient’s address set out in the Subscription Proposal or by email to the email address normally used by the parties in respect of the subscription.
XXIV – GENERAL:
In addition to its other rights and remedies, Exclusive Networks shall be entitled but not obliged at any time or times without notice to the Client to set off any liability of the Client to Exclusive Networks against any liability of Exclusive Networks to the Client (in either case however arising) whether any such liability is present or future, liquidated or unliquidated.
Any failure to exercise or delay by a party in exercising a right or remedy arising in connection with these terms and conditions, the Subscription Proposal or by law shall not constitute a waiver of such right or remedy or of any other rights or remedies.
If any of these terms and conditions is declared invalid or unenforceable in any respect. insofar as it is severable from the remaining terms, it shall be deemed omitted from these terms and the validity and enforceability of the remaining terms shall not as a result in any way be affected or impaired.
Nothing in these terms constitutes a partnership, joint venture, representative or agency relationship between the parties to it or have effect as constituting any relationship of employer and employee between the parties.
Save as expressly provided herein, the rights and remedies provided by these terms are cumulative and (subject as otherwise provided in these terms) are not exclusive of any right or remedy provided by law. No exercise by Exclusive Networks of any one right or remedy shall (save unless expressly provided otherwise) operate to hinder or prevent the exercise by it of any other right or remedy.
XXV – GOVERNING LAW AND JURISDICTION:
These terms and conditions and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms and conditions or their subject matter or formation (including non-contractual disputes or claims).