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General Terms and Conditions of Service
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (unless the context otherwise requires) capitalised terms are defined in Schedule 1.
1.2 The construction and interpretation of this Agreement shall not be affected by any heading.
2 PROVISION OF SERVICES
2.1 Thinstore shall provide the Services referred to in the Services Schedule in accordance with the applicable Service Specification(s) and in accordance with any applicable Service Levels.
2.2 Thinstore shall use reasonable skill and care when providing the Services.
2.3 Notwithstanding clauses 2.1 and 2.2, Thinstore does not warrant that the Services shall be free from Service Failures or that the Services will be continuously available to the Customer.
2.4 In the event that the Customer suffers or believes that it may be suffering a Service Failure it shall report this promptly to Thinstore via the Thinstore Helpdesk and shall provide Thinstore with such information regarding the Service Failure or suspected Service Failure as Thinstore may reasonably require in order to identify the nature and/or cause of such Service Failure or suspected Service Failure.
2.5 If a Service Failure causes an applicable Service Level not to be achieved and the applicable Service Specification provides for the payment of a Service Credit in such situation Thinstore shall pay such Service Credit in accordance with clause 5.7 below.
2.6 To the extent that Service Credits are specified for failure to achieve the service levels, the payment of Service Credits in accordance with clause 5.7 shall be the Customer's exclusive remedy in respect of any failure to achieve the Service Levels and shall be the maximum extent of Thinstore's liability therefore.
2.7 Unless otherwise stated in the applicable Service Specification(s), to the extent that the duration of any Service Failure is relevant to calculating whether an applicable Service Level has been achieved, such duration shall be measured from the time during service hours as specified in the Service Specification that the Customer reports the Service Failure or suspected Service Failure pursuant to clause 2.4 until the time Thinstore can reasonably demonstrate that the Service Failure has been rectified.
2.8 Should Thinstore reasonably conclude that a suspected Service Failure reported to it by the Customer pursuant to clause 2.4 is not a Service Failure Thinstore may, at its discretion, charge the Customer for costs, charges and expenses reasonably incurred by Thinstore in evaluating the nature of the suspected Service Failure and the Customer agrees to pay such costs, charges and expenses.
2.9 In the event that during the continuance of this Agreement the parties agree that Thinstore shall provide additional or alternative services under this Agreement ("Additional Services"), the parties shall complete and execute a schedule describing such Additional Services and incorporating the terms and conditions of this Agreement. Following such execution the Additional Services shall be deemed to be Services and the schedule a Services Schedule and in each case the terms of this Agreement shall be construed accordingly. For the avoidance of doubt no such schedule shall be binding on the parties to this Agreement unless and until signed by an authorised signatory of Thinstore and the Customer.
3 THE CUSTOMER'S USE OF THE SERVICES
3.1 Provided always that the Customer complies with its obligations under this Agreement the Customer may allow Third Party Users to use the Services.
3.2 The Customer shall at all times during its receipt of or use of the Services comply with the provisions of the Acceptable Use Policy and shall procure that each Third Party User complies with the same.
3.3 Without prejudice to clause 3.2, the Customer agrees that it shall not use the Services, and shall procure that each Third Party User shall not use the Services, in a manner which is likely to:
(a) Contravene any laws or regulations including, without limitation, the Computer Misuse Act 1990;
(b) compromise the security and/or integrity of the Network or other systems including, but without limitation, introducing viruses or failing to employ appropriate security procedures (other than to the extent that such security procedures are specifically to be provided by Thinstore pursuant to the Services);
(c) Involve the sending of unsolicited marketing or advertising materials;
(d) result in the transmission or storage of any material of a pornographic, obscene, defamatory, menacing or offensive nature or which would result in the breach of any third party's intellectual property rights, confidential information or privacy;
(e) Breach or cause Thinstore to breach any applicable data protection legislation including but not limited to the Data Protection Act 1998.
3.4 The Customer shall indemnify Thinstore and any Thinstore Associated Company against any costs, claims, losses, damages and expenses suffered or incurred by Thinstore or such Thinstore Associated Company as a result of any claims, proceedings or threatened proceedings by third parties as a result of breach of the Customer's obligations under this clause 3 (which breach shall be deemed to be a material breach of this Agreement) and/or as a result of any use of the Services by Third Party Users
3.5 Except to the extent Thinstore has specifically agreed in the Services Schedule to provide a back-up service as a part of the Services, the Customer is solely responsible for safeguarding its data by taking backup copies, maintaining a disaster recovery process and through any other means the Customer believes appropriate including without limit, maintaining up to date anti-virus software.
3.6 The Customer acknowledges that the Services are provided for use by the Customer in the course of the Customer's business.
3.7 The Customer may only carry out penetration/vulnerability testing on the Services with Thinstore’s prior written approval as to the timing and nature of and the persons conducting such testing.
4 PROVISION OF INFORMATION
4.1 Subject to clause 12, the Customer shall promptly provide Thinstore (free of charge) with all facilities materials and information in its possession or control and with such co-operation as Thinstore may reasonably require from time to time, and shall allow or procure unrestricted access to all sites necessary to enable Thinstore to proceed with the performance of the Services.
4.2 The Customer shall inform Thinstore as soon as reasonably practicable of any change of address, telephone numbers or any other details which the Customer has provided or is required to provide to Thinstore pursuant to the Agreement or otherwise.
4.3 Both parties shall nominate a duly skilled, competent and empowered representative to liaise and manage the relationship envisaged by this Agreement and shall give not less than seven days written notice of any change to the said representative.
5 CHARGES AND PAYMENT
5.1 The Customer shall pay Thinstore the Charges (and the Service Equipment Price (as applicable)) as specified in the Services Schedule. Notwithstanding clause 5.5, the Initial Charges and the first payment of the Recurring Charges shall be paid in full upon signature of the Master Agreement by the Customer.
5.2 The Recurring Charges shall be fixed for the Initial Period. Thereafter Thinstore may change the Recurring Charges for any Service by giving the Customer 30 days notice of such change provided that the percentage increase in such Recurring Charges does not exceed the percentage increase in the UK Retail Prices Index plus 4% in the 12 months preceding such notice being given by Thinstore.
5.3 Unless otherwise specified in the Services Schedule and/or the Service Specification(s) the Customer shall be liable for all third party call charges and other expenses which it incurs in using the Services.
5.4 All Charges are stated exclusive of value added tax (VAT) or other applicable taxes. The Customer will be responsible for paying VAT and other applicable taxes which will be included in Thinstore's invoices at the applicable rate(s).
5.5 The Charges, as specified in the Services Schedule, are payable by the Payment Due Dates or within 15 days of Thinstore’s invoice, whichever is later. Thinstore may charge interest on all overdue amounts on a daily basis at a rate of 4% above the base rate of the Royal Bank of Scotland plc from time to time to run from the Payment Due Dates of payment until receipt by Thinstore of the full amount (including any accrued interest) whether before or after judgment in respect of the overdue amount. In addition, Thinstore may suspend further provision of the Services, without liability, until payment in full is received.
5.6 The Customer shall pay the Charges by Direct Debit, cheque or by any other method (as Thinstore may from time to time direct) and payment of such Charges shall be made in full without any right of set off, deduction or withholding whatsoever.
5.7 If Thinstore agrees that any Service Credit or other sum is payable by Thinstore to the Customer under this Agreement Thinstore may deduct such Service Credit or other sum from the Charges due from the Customer to Thinstore from time to time. Thinstore will show any such deductions as a credit in the next invoice issued by Thinstore following such Service Credit or other sum becoming payable.
5.8 Thinstore has a general and particular lien over any Customer Equipment and any Service Equipment which belongs to the Customer for all claims and monies owing by the Customer to Thinstore under any contract whatsoever and in any other way whatsoever and the Customer shall not be entitled to remove such Customer Equipment and/or Service Equipment from the Thinstore Services Location or to dispose of the same unless and until Thinstore has received all outstanding sums owing to it. If such lien is not satisfied within a reasonable time Thinstore may in its absolute discretion sell all or part of such goods as agent for the owner and pay the proceeds towards the monies due and the expense of retention and sale of the goods and shall on accounting to the Customer for any surplus be discharged from all liability whatsoever in respect of the goods.
6 SERVICE EQUIPMENT
6.1 In the event that it is indicated in the Services Schedule that Thinstore is to sell any Service Equipment to the Customer and that the Customer is to pay the Service Equipment Price, the provisions of clause 3 of the Special Terms and Conditions shall apply to such Service Equipment. In the event of any conflict or inconsistency between those Special Terms and Conditions and this clause 6, the former shall prevail to the extent of such conflict or inconsistency.
6.2 Save to the extent specified in clause 6.1, no title to any of the Service Equipment shall pass to the Customer at any time pursuant to this Agreement. Such title shall remain vested in Thinstore or its supplier as the case may be.
6.3 Where pursuant to the Services, Service Equipment is to be provided for installation and use at the Customer's Service Location, unless otherwise stated in the relevant Service Specification, risk in the Service Equipment shall pass to the Customer upon delivery of the Service Equipment to the Customer’s Service Location. Unless otherwise stated in the relevant Service Specification, the Customer will be responsible for the installation and maintenance of the Service Equipment, for insuring the Service Equipment and (other than in the event that title in the Service Equipment has vested in the Customer) for its prompt return to Thinstore on the termination of the Services or upon Thinstore's earlier request.
6.4 The Customer grants Thinstore and each Thinstore Associated Company an irrevocable right of access to the Customer's Services Location, on reasonable notice, to inspect the Services Equipment and (other than (subject to clause 5.8) in the event that title in the Service Equipment has vested in the Customer) to recover it in the event that the Customer fails to return it promptly upon any termination of the Services or at the request of Thinstore.
6.5 The Customer shall indemnify Thinstore and any Thinstore Associated Company against any costs, claims, losses, damages and expenses suffered or incurred by Thinstore or such Thinstore Associated Company as a result of the Customer's use of the Service Equipment where such costs, claims, losses, damages and expenses arise directly or indirectly from the breach of contract or the negligent or tortuous acts or omissions of the Customer, or from the acts or omissions of any Third Party User.
7 CUSTOMER EQUIPMENT
7.1 Where Thinstore requires the Customer to provide to Thinstore any Customer Equipment to allow Thinstore or any Thinstore Associated Company to provide the Services, the Customer shall follow Thinstore's reasonable instructions relating to the provision and/or delivery of such Customer Equipment.
7.2 Where Customer Equipment is located at the Thinstore Services Location the Customer will remain fully responsible for the risk to the Customer Equipment unless otherwise agreed in writing.
7.3 The Customer is responsible for:-
(a) Obtaining all required licences or other consents to enable Thinstore to have access to and use of the Customer Equipment for the purpose of providing the Services including but not limited to any license rights in respect of software which forms a part of the Customer Equipment. The Customer is solely responsible for any costs associated with obtaining such licences and consents;
(b) (where the Services require the Customer Equipment to be sited at the Thinstore Services Location) delivering the Customer Equipment to the Thinstore Services Location prior to the relevant Service Commencement Date and promptly removing it from the Thinstore Services Location on the termination of the applicable services. Unless otherwise stated in the Service Schedule, the Customer is solely responsible for transportation, installation and de-installation costs associated with the Customer Equipment.
7.4 The Customer shall indemnify Thinstore and any Thinstore Associated Company against any costs, claims, losses, damages and expenses suffered or incurred by Thinstore or any Thinstore Associated Company as a result of proceedings or threatened proceedings from third parties (including without limitation Third Party Users) as a result of Thinstore's or any Thinstore Associated Company's use or possession of the Customer Equipment or as a result of the location of the Customer Equipment at the Thinstore Service Location.
7.5 Except as expressly set out in the Services Schedule or the applicable Service Specification(s), the Customer shall be responsible for providing all necessary hardware, software, network facilities and telecommunications services to access and use the Services.
8 TERM AND START DATE
8.1 This Agreement will commence on the date when both parties have executed the Master Agreement ("the Date of this Agreement") and will continue for the Initial Period and continue thereafter until terminated in accordance with its terms.
8.2 Subject always to the Customer fulfilling its obligation to pay the Initial Charges and the first payment of the Recurring Charges (and the Service Equipment Price (as applicable)) pursuant to clause 5.1, Thinstore shall use its reasonable efforts to begin providing each of the Services by the applicable Service Commencement Date. However, the Service Commencement Date and any other dates given in this Agreement are estimates and are provided for planning purposes only. Thinstore shall have no liability for any failure to meet the Service Commencement Date provided that it has used and continues to use reasonable endeavours to commence providing the Services.
8.3 Without prejudice to either party's rights under clause 9 the Customer agrees to receive each of the Services for the applicable Initial Period, which Initial Period shall automatically renew for further periods of equivalent duration ("Further Periods") unless either party gives to the other at least 3 months' notice in writing of its intention to cancel the provision or receipt (as the case may be) of such Services, such notice to expire at the end of the Initial Period or at the end of the then current Further Period.
9 TERMINATION
9.1 Either party ("the Terminating Party") may without prejudice to its other rights and remedies terminate this Agreement with immediate effect by notice in writing to the other party ("the Defaulting Party") if the Defaulting Party:
(a) Fails to pay any sums due to the Terminating Party by the Payment Due Dates.
(b) is in material breach of this Agreement and such breach (if capable of remedy) is not remedied within 30 days of receiving a notice from the Terminating Party specifying the breach;
(c) Makes any voluntary arrangements with its creditors or becomes subject to an administration order or goes into liquidation, whether voluntary or compulsory (other than for the purposes of reconstruction or amalgamation) or an encumbrance takes possession of or a receiver is appointed in respect of its assets.
9.2 In the event of termination by Thinstore in accordance with clause 9.1 during the Initial Period or a Further Period, without prejudice to Thinstore's other rights and remedies, the Customer shall pay to Thinstore any unpaid charges plus interest due as at the date of termination and any Recurring Charges which but for such termination, would have become due to Thinstore during such Initial Period or Further Period. In the event of termination by the Customer in accordance with this clause 9.1 during the Initial Period or Further Period, Thinstore will refund to the Customer sums (calculated on a pro rata basis) paid by the Customer at the date of such termination which are attributable to the unexpired portion of the Initial Period or the Further Period (as the case may be).
9.3 Following termination of this Agreement the Customer shall promptly deliver up to Thinstore the Service Equipment together with any other materials provided to the Customer by Thinstore or by any Thinstore Associated Company in connection with this Agreement.
9.4 Upon termination of this Agreement or cancellation of any Service Thinstore shall provide the Customer with such assistance as the Customer may reasonably require in order to allow the Customer to receive services similar to the Services no longer to be provided by Thinstore from an alternative service provider, such assistance to include, without limitation, co-operating in transferring any internet domain names registered by Thinstore on behalf of the Customer pursuant to the Services to such alternative service provider ("Transitional Assistance"), provided always that the Customer pays to Thinstore all Charges due and payable pursuant to the Agreement and provided also that the Customer agrees to pay Thinstore's then current charges for such Transitional Assistance.
10 CANCELLATION AND SUSPENSION
10.1 Where the Customer terminates the Agreement, other than as permitted pursuant to clauses 8.3 or 9, the Customer shall pay the charges applicable to the unexpired portion of the applicable Initial Period or Further Period (as the case may be).
10.2 Without prejudice to clause 9, Thinstore may suspend or cancel the provision of any Services if:
(a) Technical limitations exist or arise which make the provision of the Services impossible or materially limit the functionality or performance of the Services;
(b) Requested or required to do so by any governmental or other authority;
(c) The Customer fails to meet any of its obligations under this Agreement;
(d) if and to the extent that in Thinstore's reasonable opinion the Customer's conduct is likely to result in the breach of any law or is otherwise prejudicial to Thinstore's interests;
(e) Necessary for operational reasons such as upgrades to the Services or regular or emergency maintenance;
(f) Thinstore has reasonable cause to believe that the Customer or any Third Party User is acting in breach of the Acceptable Use Policy.
10.3 Thinstore shall, where practical, give the Customer notice of its intention to suspend or cancel the Services in accordance with clause 10.2 and, in relation to suspension for the reasons stated in clause 10.2 (a) (b) and (e) shall restore the Services as soon as it is reasonably able to do so. Thinstore shall not be obliged to restore the Services in the event that it has suspended the same pursuant to clause 10.2 (c) (d) or (f) above, but, in the event that it agrees to do so, the Customer shall be liable for Thinstore's costs and charges in respect of the suspension and restoration of the applicable Services.
11 ALLOCATION AND USE OF IP ADDRESSES
11.1 Where pursuant to the Services Thinstore allocates to the Customer IP addresses, such IP addresses shall be for use by the Customer for the duration of this Agreement only and shall not belong to the Customer. The Customer accepts that it does not and shall not acquire any rights whatsoever in such IP addresses and Thinstore may reuse the same for any legitimate purpose following termination of this Agreement.
11.2 Thinstore shall be entitled, for commercial, operational or technical reasons or to comply with an obligation imposed on it by any third party, to withdraw or change any IP addresses allocated to the Customer with immediate effect upon written notice.
12 CONFIDENTIALITY OF INFORMATION
12.1 Neither party will disclose to any third party without the prior written consent of the other party any confidential information which is received from the other party as a result of this Agreement except to the extent that such third parties have a genuine need to know the same in connection with the provision or receipt of the Services. Each party shall procure that any third party to whom such party discloses such information shall use the same only for such purpose and shall not further disclose or use it. Both parties agree that any confidential information received from the other party will only be used for the purposes of providing or receiving Services. These restrictions will not apply to any information which:
(a) Is or becomes generally available to the public other than as a result of a breach of an obligation under this clause 12; or
(b) Is acquired from a third party who owes no obligation of confidence in respect of the information; or
(c) Is or has been independently developed by the recipient.
12.2 Notwithstanding clause 12.1 Thinstore will be entitled to disclose confidential information of the Customer or of Third Party Users or any information in Thinstore’s control or on the Customer Equipment or Service Equipment to a third party to the extent that this is required by any court of competent jurisdiction or by a government or regulatory authority or, without limit, where there is a legal right, duty or requirement to disclose such information.
12.3 The Customer shall indemnify Thinstore and any Thinstore Associated Company against any costs, claims, losses, damages and expenses suffered or incurred by Thinstore or any Thinstore Associated Company in connection with a requirement to disclose information as referred to in clause 12.2.
13 INTELLECTUAL PROPERTY
13.1 Where Thinstore Software is provided to the Customer to enable the Customer to make use of the Services, Thinstore grants to the Customer a non-exclusive non-transferable license to use the Thinstore Software solely for the purpose of receiving and using the Services. Thinstore warrants that at delivery of the Thinstore Software it shall comply in all material respects with its documentation.
13.2 Where any Third Party Software is provided to the Customer to enable the Customer to make use of the Services, Thinstore shall notify the Customer of the terms and conditions on which such Third Party Software may be used by the Customer and/or Third Party Users (as applicable) and the Customer shall, and shall procure that Third Party Users shall, comply fully with any such terms and conditions. The Customer shall, if requested, by Thinstore sign any agreement incorporating such terms and conditions, and shall procure that Third Party Users shall do the same.
13.3 The Customer shall indemnify Thinstore and any Thinstore Associated Company against any costs, claims, losses, damages and expenses suffered or incurred by Thinstore or such Thinstore Associated Company as a result of any breach by the Customer of clauses 13.1 or 13.2.
13.4 The Customer will not copy, decompile or modify the Software without Thinstore's prior written consent (except as permitted by law) and will not distribute or disclose the Software to any third party other than as expressly permitted in the applicable Service Specification or pursuant to the terms and conditions of the Third Party Software referred to in clause 13.2 above.
13.5 To the extent that Thinstore itself has the benefit of any warranty or guarantee from the supplier or licensor of any Third Party Software in respect of such Third Party Software, Thinstore will, to the extent that it is able, pass on the benefit of any such warranty or guarantee to the Customer.
13.6 The Customer acknowledges that Thinstore has no obligation to review or edit any of the Customer's information or material or that of any Third Party User which the Customer or a Third Party User stores on or transmits through Service Equipment or otherwise uses in connection with the Services. However, Thinstore reserves the right to access, retain and disclose copies of such information or material for the purposes of:
(a) Maintaining and improving the Services Thinstore offers;
(b) Complying with any applicable laws, regulations, statutory instruments or the terms of Thinstore's licences and contracts;
(c) Observing the performance of the Services including for Service Level monitoring;
(d) Retaining a record of activity on Service Equipment or Thinstore's systems.
13.7 Unless otherwise specified in writing in the Services Schedule all intellectual property rights in the Service Equipment shall remain with Thinstore or its suppliers.
13.8 The Customer agrees that all and any copyright and other intellectual property rights (including, without limitation, rights in and to inventions) created by Thinstore or by any Thinstore Associated Company arising out of its provision of the Services or otherwise in connection with this Agreement ("Intellectual Property Rights") shall belong to Thinstore absolutely or such Thinstore Associated Company absolutely. Thinstore hereby grants to the Customer (or shall procure the grant of) a royalty-free, non-transferable, non-exclusive license to use such Intellectual Property Rights to the extent necessary to allow the Customer to receive and use the Services and to allow Third Party Users (to the extent permitted pursuant to clause 3.1) to receive and use the Services.
13.9 Thinstore shall, at its own expense, (i) defend, or at its option settle any claim or suit against the Customer on the basis of infringement of any Intellectual Property Rights by the Services excluding any claim or suit arising from any Customer provided item and (ii) pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that: the Customer notifies Thinstore promptly of each such claim or suit; Thinstore is given sole control of the defence and/or settlement; and the Customer fully co-operates and provides all reasonable assistance to Thinstore in the defence or settlement.
13.10 If all or part of the Services becomes, or in the opinion of Thinstore may become, the subject of a claim or suit for infringement, Thinstore, at its own expense and sole discretion, may do one of the following: (i) procure for the Customer the right to use the Services or the affected part thereof; (ii) replace the Service or affected part with other suitable Services; or (iii) modify the Services or affected part to make the same non-infringing.
13.11 Thinstore shall have no obligations under clauses 13.9 or 13.10 to the extent a claim is based on: (i) the combination, operation or use of the Services with other services or software not provided by Thinstore, if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Services in any manner inconsistent with this Agreement; or (iii) the result of the negligence or wilful misconduct of the Customer.
13.12 The Customer shall indemnify and hold Thinstore, Thinstore Associated Companies and their respective suppliers harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by a Customer of any Intellectual Property Rights with respect to Customers’ use of the Services outside the scope of this Agreement; (ii) any third party’s access to or use of the Services; and (iii) Thinstore’s use of any Customer provided item.
14 LIMITATION OF LIABILITY
14.1 Nothing in this Agreement excludes or limits the liability of Thinstore or any Thinstore Associated Company for death or personal injury arising from its own negligence or for any fraudulent pre-contractual misrepresentation on which the Customer can be shown to have relied to the extent that the same cannot be lawfully limited or excluded.
14.2 Subject to clauses 14.1, neither Thinstore nor any Thinstore Associated Company shall be liable to the Customer whether under this Agreement, in tort (including negligence) or otherwise for direct or indirect loss of profits, anticipated profits, business, goodwill or anticipated savings or for any indirect or consequential loss or damage including but not limited to claims against the Customer from third parties (including without limitation, Third Party Users) even if such loss was reasonably foreseeable or Thinstore had been advised of the possibility of the Customer incurring the loss.
14.3 The liability of Thinstore and any Thinstore Associated Company to the Customer in contract, tort (including negligence) or otherwise arising out of this Agreement in respect of loss and damage to the Customer's tangible property (other than loss of or damage to data) is limited to £2,000,000 (Two Million Pounds). The provisions of clause 14.4 shall apply to loss of or damage to data.
14.4 Save in respect of clauses 2.6, 14.1 and 14.3, the maximum aggregate liability of Thinstore and any Thinstore Associated Company to the Customer in contract, tort (including negligence) or otherwise in relation to or arising out of all Events of Default occurring during any Contract Year shall be limited to the annual aggregate of the Charges paid and/or payable during such Contract Year or £100,00 (One hundred thousand pounds) whichever is greater, provided that in no event will Thinstore be liable for loss which could have been avoided by the Customer following Thinstore’s reasonable advice and instructions.
14.5 Subject to clauses 14.1 and 14.3, the liability of Thinstore and any Thinstore Associated Company to the Customer in contract, tort (including negligence) or otherwise in relation to or arising out of the sale of any Service Equipment to the Customer pursuant to this Agreement is limited to the Service Equipment Price.
14.6 Neither Thinstore nor any Thinstore Associated Company shall be liable to the Customer in contract, tort (including negligence) or otherwise for any acts or omissions of the Customer or any Third Party User or any other third party, including other providers of telecommunications, computers or other equipment or services, including Internet services.
14.7 Neither Thinstore nor any Thinstore Associated Company shall be liable to the Customer in respect of any loss or damage arising out of or in connection with this Agreement or as a result of the provision of the Services unless the Customer brings legal proceedings against Thinstore and/or any such Thinstore Associated Company within 3 years from the date when the Customer first became aware or ought reasonably to have become aware of the facts giving rise to the liability or alleged liability or within the relevant statutory limitation period whichever is the earlier.
14.8 For the avoidance of doubt, the limits of liabilities set out in this clause 14 are the limits of the combined liabilities of Thinstore and Thinstore Associated Companies pursuant to or in connection with this Agreement or the provision of any Services.
14.9 Thinstore shall not be liable for changes to the Customer Equipment or the Service Equipment made by the Customer or Thinstore at the specific request of the Customer, except to the extent that Thinstore has performed the implementation in a negligent manner.
15 NOTICES
15.1 Any notices to be given under the Agreement shall, unless otherwise expressly stated, be in writing and shall be given by sending the same by first class post or by facsimile transmission to the party’s address set out in the Agreement or such other address as may be designated in writing from time to time or if no such address is set out or designated then to the registered office or other usual business address of that party.
15.2 Any notice sent by first class post shall be deemed (in the absence of evidence of earlier receipt) to have been delivered two days after its dispatch. Any notice given by facsimile transmission shall be deemed to have been delivered on the next working day following transmission subject to receipt of the appropriate confirmation of transmission.
16 ASSIGNMENT/ SUBCONTRACTING
16.1 The Customer shall not assign, delegate, sub-contract or otherwise deal with any of its rights and/or obligations under the Agreement without the consent of Thinstore.
16.2 Thinstore shall have the right to assign all or any of its rights and obligations under the Agreement to a Thinstore Associated Company or other third party (other than a direct competitor of the Customer) upon serving written notice to the Customer.
16.3 Thinstore may sub-contract the performance of its obligations, in whole or in part, under this Agreement to a Thinstore Associated Company at any time without notice to the Customer or to any other third party (other than a direct competitor of the Customer) upon written notice to the Customer, provided that in each case Thinstore shall remain liable for the acts and omissions of any such sub-contractor.
17 FORCE MAJEURE
17.1 Neither party shall be liable for any loss or damage, which may be suffered due to, without limitation, any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of Government, highways authorities, other telecommunications operators or administrations or other competent authority, the obstruction by a third party of line of sight between microwave installations, war, military operations, acts of terrorism or riot, difficulty, delay or failure in manufacture, production or supply by third parties of the Service Equipment or any other cause beyond the party’s reasonable control ("Event of Force Majeure"). Should any such Event of Force Majeure occur, both parties reserve the right to suspend all or any part of the Agreement pending cessation of such Event of Force Majeure or the effect thereof, without incurring any liability for any loss or damage thereby occasioned. Should such suspension exceed 14 days in length, either party may terminate this Agreement without incurring any liability for any loss or damage thereby occasioned.
18 ENTIRE AGREEMENT
18.1 This Agreement constitutes the entire agreement and understanding between Thinstore and the Customer relating to its subject matter (except that neither party excludes liability for any fraudulent pre-contractual misrepresentations on which the other party can be shown to have relied) and supersedes all and any previous agreements, undertakings and representations made or existing between the parties. The Customer warrants to Thinstore that in entering into this Agreement it has not relied on any representations made by Thinstore other than those contained in this Agreement.
18.2 Subject to clauses 2.9 and 19.1, no variation to the Agreement or the Services shall bind either party, unless the same is agreed in writing by signing a Thinstore change control note signed by an authorised representative of each party.
18.3 No representation made by any employees or agents of Thinstore concerning any Services shall bind Thinstore unless the same is confirmed in writing by an authorised representative of Thinstore.
18.4 The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings, and obligations (including without limitation as to the fitness for purpose of the Service Equipment) implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
19 MODIFICATION
19.1 Thinstore shall have the right by 30 days' notice in writing to the Customer to vary any of the provisions of this Agreement (including, without limitation, the Service Specifications) at any time so as to comply with any regulations or other requirement applicable to or imposed upon Thinstore by any competent authority or otherwise.
20 DISPUTES
20.1 Without prejudice to clause 2.4 and to either party's other rights and remedies, in the event of a complaint or dispute (together "Dispute") arising out of or in connection with this Agreement, Thinstore and the Customer shall operate the following escalation path to attempt to resolve such Dispute:
(a) The Customer shall provide to the Thinstore Account Manager details of the Dispute and the Thinstore Account Manager shall attempt to resolve the Dispute to the satisfaction of the Customer and Thinstore.
(b) In the event that within the 5 working days of the referral of the Dispute to the Thinstore Account Manager the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Thinstore's director in charge of the business unit to which the Dispute most closely relates and such director shall attempt to resolve such Dispute.
(c) In the event that within 5 working days of the referral of the Dispute to the Thinstore director pursuant to (b) above the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Thinstore's Managing Director, who shall attempt to resolve the Dispute to the satisfaction of the Customer and Thinstore.
20.2 Notwithstanding the provisions of clause 20.1 either party may commence proceedings for the resolution of any Dispute before any court of competent jurisdiction, and neither party shall be under any obligation to continue negotiations for any settlement of any Dispute if the Dispute concerned is referred to alternative dispute resolution or the courts.
21 NO WAIVER
21.1 Subject to clause 14.9, neither party's failure to exercise or enforce any right conferred by the Agreement shall be deemed to be a waiver of any such right nor operate so as to bar the exercise or the enforcement thereof or of any other right on any later occasion.
22 SEVERABILITY
22.1 If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect any other provisions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
23 THIRD PARTY RIGHTS
23.1 Any Thinstore Associated Company shall be entitled to enforce the indemnities given in its favour in this Agreement and the exclusions and limitations of liability set out in clause 14 in its favour in accordance with the Contracts (Rights of Third Parties) Act 1999 ("the Act"). Subject to the foregoing a person who is not a party to this Agreement shall have no right under the Act to enforce any term of this Agreement but this shall not affect any right or remedy of a third party which exists or is available apart from the Act. The parties reserve the right pursuant to s2(3) of the Act to rescind or vary this Agreement or any part of it without the consent of any Thinstore Associated Company or any other person who is not a party to the Agreement.
24 GOVERNING LAW
24.1 The Agreement shall be governed by and constructed and interpreted in accordance with English law, and the parties hereby submit to the exclusive jurisdiction of the English courts.
25 SURVIVAL OF TERMS
Termination of this agreement shall not affect the continued operation of those clauses which are intended expressly or by implication to survive termination.
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