In this Contract:
” Indigo Forward” means Indigo Forward (a trading style of Boundary Communications Ltd). Registered in England & Wales Company No. 5318922.with Registered Office 1 Cornhill, London, EC3V 3ND.
” Indigo Forward Equipment” means any equipment, including any Software & network devices, owned or controlled by Indigo Forward to provide the Service.
” Charges” means the charges for the Service(s) notified to the Customer by Indigo Forward from time to time.
” Conditions” means these conditions for Indigo Forward conferencing and other services.
” Content” means applications, data, information, video, graphics, sound, music, photographs, software or any other material.
” Contract” means, in order of precedence, these Conditions, the applicable Service and Charges Schedule, the Accepted Quotation, the Order Form (if any) and the User Registration Process.
” Customer” means the person so named on the Order Form (if any), or, the person named in the Registration Process. Indigo Forward may accept instructions from another person who Indigo Forward reasonably believes is acting with the Customer’s authority or knowledge.
” Customer Equipment” means any equipment and user devices, including any software, for use with the Service that is not part of Indigo Forward’s equipment and/or network which is owned or controlled by the Customer.
” Group Company” means a subsidiary or holding company including a holding company, or a subsidiary of any such holding company, all as defined by Section 736 of the Companies Act 1985 and as amended by the Companies Act 1989.
” Intellectual Property Rights” means any patent, petty patent, registered design, copyright, design right, database right, rights in designs, invention, semiconductor topography right, knowhow, or any similar right exercisable in any part of the world and including any applications for the registration of any patents or designs.
” LAN” means local area network.
” Minimum Period of Service” means the minimum duration for each Service or each component of the Service, that shall mean no less than 12 months unless defined otherwise in the relevant Service Schedule, Accepted Quotation or Order Form.
” Order Form” means an order form for Service, filled out with all the necessary information and signed by both Indigo Forward and the Customer.
” Registration Process” means the registration process determined by Indigo Forward.
” Service” means the conferencing or other service provided by Indigo Forward as described in the applicable Service & Charges Schedule or Accepted Quotation.
” Service & Charges Schedule” means the schedule to these Conditions that describe the Service to be provided by Indigo Forward including the Indigo Forward charges for the Service.
” Service Start Date” means the date on which the Service is first made available to the Customer unless otherwise stated in the Service Schedule or Accepted Quotation.
” Site” means the place at which Indigo Forward agrees to provide the Service.
” Software” means any software and associated written and electronic documentation and data provided by Indigo Forward under the Contract.
” Systems Administrator” means a person named by the Customer as the point of contact with Indigo Forward for matters relating to the provision of the Service.
” User” means anyone who is permitted by the Customer to use or access the Service.
” User-ID(s)” means the pass codes or access codes or other codes allocated by Indigo Forward to the Customer, to allow the Customer to use the Service.
” Working Day” means GMT 9.00am to 6.00pm any day between Monday and Friday, excluding bank and public holidays.
2.0 Commencement of this contract
- This Contract begins on the date the Customer receives acceptance from IndigoForward following completion of the Registration Process or when the Customer starts to use the Service or when the Service is first made available to the Customer, whichever is the earlier.
- The Service commences on the Service Start Date.
- Where Indigo Forward sells equipment to the Customer, the terms of this Contract will not apply in relation to the sale of equipment which will instead be subject toIndigo Forward’s prevailing Terms & Conditions of Sale relating to the sale of equipment.
3.0 Provision of the service
- Indigo Forward will provide the Service to the Customer on the terms of this Contract.
- The provision of the Service is at all times subject to the availability of appropriate facilities and Indigo Forward does not guarantee to provide the Service on each occasion that the Customer requests it (unless stated otherwise). Indigo Forward will try to provide the Service by any date agreed with the Customer, but all dates are estimates (unless stated otherwise).
- Indigo Forward will provide the Service with the reasonable skill and care of a competent telecommunications service provider. Indigo Forward cannot guarantee a fault free Service, and from time to time faults may occur. If the Customer reports a fault in the Service Indigo Forward will repair the fault in accordance with the Service Schedule or Accepted Quotation.
- If Indigo Forward agrees to work outside the hours specified in the Contract or the Service Schedule, or Accepted Quotation, or if the Customer reports a fault and Indigo Forward finds there is none or that the Customer has caused the fault, Indigo Forward may apply a charge. This charge will be as detailed in the Contract or if not detailed in the Contract based on Indigo Forward’s reasonable costs.
- Occasionally Indigo Forward may:
- for operational reasons, change the codes or the numbers used by Indigo Forward for the provision of the Service or the way Indigo Forward provides the Services or the technical specification of the Service, provided that any change to the way Indigo Forward provides the Service or to the technical specification does not materially affect the performance of the Service;
- give the Customer instructions which it believes are necessary for reasons of health, safety or the quality of the service provided by Indigo Forward to the Customer or any other customer and the Customer shall comply with such instructions; or
- temporarily suspend the Service because of an emergency or for operational reasons, maintenance or improvements. Service will be restored as soon as possible.
- The Customer does not own any number or have any right to sell the number related to the Service.
- Indigo Forward may monitor and record calls relating to customer services and telemarketing. Indigo Forward does this for training purposes and to improve the quality of its customer services.
4.0 Connection of Equipment and/or/ LAN to the service
The Customer will obtain any permission needed for Indigo Forward to deliver the Services on the Site. The Customer will not permit or make without limitation any attempt to disassemble, deconstruct, break down, hack or otherwise interfere with any Indigo Forward Equipment. The Customer must ensure that any Customer Equipment and/ or LAN:
- connected to or used with the Service is connected and used in accordance with any applicable instructions, safety and security procedures; and
- attached (directly or indirectly) to the Service is compliant with any relevant legislation.
- is technically compatible with the Service and will not harm Indigo Forward’s Equipment or another customer’s equipment;
- is connected using the applicable Indigo Forward access functionality, unless the Customer has Indigo Forward’s permission to connect by another means, and used in compliance with any relevant instructions, standards or laws; and
- is adequately protected by the Customer against viruses and other breaches of security.
5.0 Access and site regulations
- There may be times that the Customer requires Indigo Forward to access the site for additional support purposes under the Contract. The Customer agrees to prepare the Site according to any reasonable instructions Indigo Forward may give. To enable Indigo Forward to carry out its obligations, the Customer will provide Indigo Forward employees and anyone acting on Indigo Forward’s behalf, who produces a valid identity card, with assistance as reasonably requested including access to relevant equipment and personnel.
- Indigo Forward employees and anyone acting on Indigo Forward’s behalf will observe the Customer’s reasonable Site regulations as previously advised in writing to Indigo Forward by the Customer. In the event of any conflict between the Site regulations and these Conditions, these Conditions will prevail.
- The Customer is responsible for the security and proper use of User IDs.
- The Customer must take all necessary steps to ensure the User IDs are kept secure and confidential and must not disclose the User IDs to unauthorised people.
- The Customer must immediately inform Indigo Forward if there is any reason to believe that a User ID has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
- The Customer must not change or attempt to change a User ID without Indigo Forward’s prior agreement. If a Customer forgets or loses a User ID the Customer must contact Indigo Forward and satisfy such security checks as Indigo Forward may operate.
- Indigo Forward does not guarantee the security of the Service against unauthorised or unlawful access or use. Indigo Forward reserves the right to suspend access to the Service and/ or change User IDs or require the Customer to change the User IDs if at any time Indigo Forward considers that there is or is likely to be a breach of security.
- The Customer must immediately inform Indigo Forward of any changes to the information the Customer supplied when registering for the Service.
- Where the Service is accessed via the internet the Customer understands and agrees that the use of the internet is at the Customer’s own risk.
7.0 Use of service
- It is the Customer’s responsibility to obtain and keep in force any licence necessary for the Customer to use the Service in any country in which it is provided.
- Unless Indigo Forward agrees otherwise in writing the Service is provided solely to the Customer and the Customer will not resell or attempt to resell the Service or any part or facility of it to any third party.
- The Service must not be used:
- in a way that does not comply with the terms of any legislation or any licence, code of practice, instructions or guidelines issued by a regulatory authority, third person’s rights or that is in any way fraudulent or unlawful;
- in a way that does not comply with any instructions given by any other public telecommunications operator or other competent authority, in any country where theService is provided;
- to send, communicate, knowingly receive, upload, download, use or re-use any information/material or make any calls which is abusive, indecent, defamatory, obscene,intended to deceive/cause annoyance/needless anxiety, menacing, and/or is in breach of confidence, copyright, privacy or any other rights;
- to send or provide unsolicited advertising or promotional material, or knowingly to receive responses to any unsolicited advertising or promotional material sent or provided using theService by any third party; or
- other than, where relevant, in accordance with Indigo Forward’s acceptable use policies.
Indigo Forward’s acceptable use policy states that the Customer must not:
- nterfere with another user’s use and enjoyment of the Service or another individual’s or entity’s use and enjoyment of similar services;
- violate any party’s proprietary, publicity, privacy, or other right;
- misuse or disclose a party’s confidential or proprietary information;
- transmit, store, or knowingly receive any obscene or pornographic material including displays of nudity and/or sexual activities or engage in any misleading, torturous, defamatory, libellous, or offensive activity;
- transmit or upload any material that contains software or other material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own or control the rights there to or have received all necessary consents;
- attempt to gain unauthorised access to the Supplier’s service, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
- disrupt the Services, other users, and/or connected services through the use of methods such as viruses, Trojan horses, worms, time bombs, cancel bots, denial of service attacks, flooding, or spamming;
- harvest or otherwise collect information about others without their consent;
- create a false identity for the purpose of misleading others as to the identity of the User;
- permit or authorise others to use the Services in connection with the design, development, production, stockpiling or use of any chemical or biological weapons
- If the Customer or anyone else, with or without the Customer’s knowledge or approval,uses:
- the Service in contravention of paragraphs 7.1 to 7.3; or
- the server capacity or any software made available to it in any way which, in Indigo Forward’s opinion, is, or is likely to be, detrimental to the provision of the Service to the Customer or any other customer and fails to take corrective action within a reasonable period of receiving notice from Indigo Forward to do so;
may treat the contravention as a breach of this Contract for the purposes of paragraph 17.
- The Customer must indemnify Indigo Forward against any claims or legal proceedings which are brought or threatened against Indigo Forward by a third party because theService is used by the Customer in breach of the Contract. Indigo Forward will notify theCustomer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings and have due regard to the Customer’s representations.
- The Customer is responsible for the acts and omissions of all Users in connection with theService and is liable for any failure by any Users to perform or observe the terms and conditions of this Contract, including any instructions issued under sections 3.0 and 4.0.
8.0 Intellectual property rights
- Except as expressly set out in the Contract, the Customer and Indigo Forward do not acquire any rights or licences to the other’s Intellectual Property Rights.
- Where Software is provided to enable the Customer to receive and use the Service, Indigo Forward grants the Customer for the duration of the Contract a non-exclusive, non-transferable licence to use the Software for that purpose. Unless otherwise agreed in writing, any licence granted by Indigo Forward under this clause 8.2 will end when the Contract is terminated.
- The Customer will not, without Indigo Forward’s prior written consent, copy, decompile or modify the Software, nor copy the manuals or documentation or permit anyone else to do so (except as permitted by law or as expressly permitted under the Contract).
- Indigo Forward may offer updates or modifications to the Software or documentation. Any applicable charges for such updates or modifications will be notified to the Customer at any time Indigo Forward offers such updates or modifications.
9.0 Intellectual property right indemnities
- Indigo Forward will indemnify the Customer against any claims and proceedings arising from infringement of any third party intellectual property rights through Indigo Forward’s provision of the Service to the Customer. As a condition of this indemnity the Customer must:
- notify Indigo Forward promptly in writing of any allegation of infringement;
- make no admission relating to the infringement;
- allow Indigo Forward to conduct all negotiations and proceedings in respect of any claims and give Indigo Forward all reasonable assistance in doing so(Indigo Forward will pay the Customer’s reasonable expenses for such assistance); and
- allow Indigo Forward to modify the Service, or any item provided as part of theService, so as to avoid the infringement, provided that the modification does not materially affect the performance of the Service.
- The indemnity in paragraph 9.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment, software or services not supplied by Indigo Forward or any modification which was not made by IndigoForward or with Indigo Forward’s prior written consent or the use of the Service other than in accordance with the terms of the Contract or breach by theCustomer of sections 3.0 or 8.0 or to infringements caused by designs or specifications made by, or on behalf of, the Customer. The Customer willindemnify Indigo Forward against all claims, proceedings and expenses arisingfrom such infringements.
- The limitations and exclusions of liability contained in paragraph 13 do not apply to this paragraph.
- If the Service becomes, or Indigo Forward believes it is likely to become, the subject of a claim of infringement of any Intellectual Property Rights, IndigoForward, at its option and expense, may secure for the Customer a right of continued use or modify or replace the Service so that it is no longer infringing,provided that the modification or replacement does not materially affect the performance of the Service. If the indemnity in clause 9.1 applies and none of the remedies in this clause is available to Indigo Forward on reasonable terms,Indigo Forward may notify the Customer and terminate the Service without liability to the Customer.
10.0 LAN access
- If the Customer accesses the Service via a LAN, the Customer is responsible for:
- providing and maintaining a suitable LAN and Internet protocol(“IP”) router capable of interfacing satisfactorily with the Service;
- configuration of the IP router; and
- the appointment of a Systems Administrator.
- Where IP addresses are allocated to the Customer, these are for use in connection only with the Service and all rights in those IP addresses belong to Indigo Forward. The Customer cannot sell them or agree to transfer them to anyone else and must not try to do so. If this Contract is terminated for any reason the IP addresses will revert to Indigo Forward.
- Except to the extent any disclosure is required by law and as set out in clause 11.2, the parties will keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained under this Contract and will not, without the written consent of the other party, disclose that information to any person (other than their Group Company employees or professional advisers who need the information in order for the parties to fulfil its obligations under the Contract, or in the case of Customer, its Users to the extent that they are required to use or access the Service or in the case of Indigo Forward also its suppliers and the employees or professional advisers of its suppliers, an Indigo Forward or Boundary Communications Group Company or their suppliers, who need to know the information in order for Indigo Forward to fulfil its obligations under the Contract).
- Information Indigo Forward holds about the Customer may be used for fraud prevention and credit vetting purposes and this may include Indigo Forward sharing such information with third party companies including other communication companies.
- This paragraph 11 will not apply to:
- any information which has been published or is in the public domain other than through a breach of this Contract;
- information lawfully in the possession of the recipient before the disclosure under this Contract took place;
- information obtained from a third party who is free to disclose it;
- information which a party is requested to disclose and, if it did not, could be required to do so by law; and
- information which is replicated independently by someone without access or knowledge of the other party’s information.
- Where the Freedom of Information Act 2000 applies to the Customer and the Customer receives a request under the Act that includes any information held by the Customer that was provided by Indigo Forward in connection with the Contract the Customer will:
- notify Indigo Forward immediately of the request; and
- give Indigo Forward at least five Working Days to make representations.
- This paragraph 11 will remain in effect for 2 years after the termination or expiration of this Contract.
12.0 Charges and deposits
- Charges for the Service will be as specified in the Services and Charges Schedule or Accepted Quotation. Unless otherwise stated in the Services and Charges Schedule or Accepted Quotation or Order Form, charging will begin on the Service Start Date. Charges for use of the Service will be calculated in accordance with the details recorded by, or on behalf of Indigo Forward.
- The Customer is responsible for and must pay all Charges for the Service whether the Service is used by the Customer or someone else, and upon receipt of Indigo Forward’s invoice.
- Indigo Forward will send the bills to the address notified by the Customer to Indigo Forward.
- Unless otherwise stated in the Charges Schedule the Customer agrees to pay:
- in advance for subscription, rental, and other recurring charges (including inclusive usage charges); and
- in arrears for usage (excluding inclusive usage charges), overage, connection and any other non-recurring charges.
- All Charges will be invoiced and paid in pounds sterling unless otherwise agreed in writing by Indigo Forward. Value Added Tax or any other applicable in country sales or use tax or like charge in a country where the Service is provided which is payable by the Customer will be added to Indigo Forward’s invoices as appropriate.
- As part of its credit management procedures, Indigo Forward may, at any time:
- require the Customer to pay a deposit or provide a guarantee as security for payment of future bills by the means requested by Indigo Forward; and/or
- carry out a credit vet of the Customer. The Customer agrees to provide Indigo Forward with any information Indigo Forward may reasonably require for this.
- Payment is due on the date specified on the bill, unless otherwise stated in the Charges Schedule or Order Form.
- The Customer must pay all charges on the due date either by direct debit or monthly payment plan as agreed, unless otherwise advised by Indigo Forward.
- If the Customer disputes any charge on a bill the Customer will notify Indigo Forward in writing within 14 days of the date of the bill with all relevant information. Where the disputed amount is:-
- less than 5% of the total bill, the Customer will pay the full amount of the bill; or
- more than 5% of the total bill, the Customer must pay the amount not in dispute. Also, if requested by Indigo Forward, the Customer will place funds equivalent to the disputed amount into an account with a reputable bank as reasonably specified by Indigo Forward, established jointly by the Customer and Indigo Forward, accruing interest at a variable rate equal to that which the selected bank certifies it would normally pay a commercial customer depositing the amount credited to such an account (escrow account).
- If Indigo Forward does not receive payment by the due date, Indigo Forward may charge the Customer:
- any late payment charge as referred to in the Charges Schedule or Order Form; and/or
- daily interest on late payments at a per annum rate equal to 7% above the base lending rate of the European Central Bank, compounded daily, for the period beginning on the date on which payment is due and ending on the date on which payment is made.
- If the Customer does not pay a bill, Indigo Forward may instruct a debt collection agency to collect payment (including any interest and/or late payment charges) on its behalf. If Indigo Forward instructs an agency, the Customer must pay Indigo Forward an additional sum. This will not exceed the reasonable costs Indigo Forward has to pay to the agency, who will add the sum to the Customer’s outstanding debt on Indigo Forward’s behalf.
- If any sum owed by the Customer to Indigo Forward under the Contract or any contract with Indigo Forward is not paid by the due date, Indigo Forward may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with Indigo Forward.
- Indigo Forward may check the Customer’s details with a fraud prevention agency. If the Customer provides information that Indigo Forward reasonably believes to be false or incorrect and Indigo Forward suspects fraud, Indigo Forward may record this information with a fraud prevention agency. Indigo Forward and other organisations may use and search this information. Indigo Forward reserves the right to immediately suspend the Service where amounts owing to Indigo Forward from the Customer under this Contract, or any other contract Indigo Forward has with the Customer, are overdue for payment with all other rights and remedies preserved.
13.0 Limitation of liability
- Neither Indigo Forward nor the Customer excludes or restricts its liability for death or personal injury resulting from its negligence in connection with the Contract.
- Indigo Forward is not liable to the Customer, either in contract, tort (including negligence) or otherwise for any direct or indirect loss of profits, revenue, business or business interruption, anticipated savings, opportunity, expenditure (including wasted or of employees’/agents’ time), data (including any destruction of data), contracts and goodwill. In addition, Indigo Forward will not be liable to the Customer for any claim from third parties.
- Without prejudice to any other contract which may exist between Indigo Forward and the Customer for the provision of any other service, Indigo Forward is not liable under this Contract in respect of, or, in connection with, any network or other service over which the Service is provided, including but not limited to Indigo Forward’s other networks or other services or any third party network or service.
- Indigo Forward is not liable to the Customer either in contract, tort (including negligence) or otherwise for the acts or omissions of any other providers of service used in connection with the Service or for faults in or failures of equipment.
- Indigo Forward’s liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Contract is limited to the sum of the total annual charges or £100,000 (one hundred thousand pounds), whichever is the lower.
- Nothing in this paragraph 13 shall exclude or limit the liability of the Customer to pay Indigo Forward any Charges properly due for provision of the Service.
- Each provision of this Contract, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts will continue to apply.
14.0 Maters beyond the reasonable control of either party
- If the Customer or Indigo Forward is prevented, hindered or delayed from performing any obligation under the Contract because of something beyond its reasonable control including: act of God, natural disaster, lightning, flood, subsidence, earthquake, weather conditions, epidemic, pandemic, fire, explosion, war, civil disorder, acts of terrorism, something beyond the reasonable control of its suppliers, industrial disputes, acts or omissions of local or central government or other competent authorities, acts or omissions of parties for whom the Customer or Indigo Forward is not responsible, change of law or any other cause whether similar or dissimilar that is outside its reasonable control, or beyond the reasonable control of its suppliers, then it will have no liability to the other for any resulting failure, delay, defect or omission in performing its obligations under the Contract.
- In the event of:
- a refusal or delay by a third party to supply a telecommunications or electronic communications service to Indigo Forward and where there is no alternative service available at reasonable cost; or
- the imposition of restrictions of a legal or regulatory nature which prevent Indigo Forward from supplying the Service then Indigo Forward will have no liability to the Customer for failure to supply the Service.
- If any of the events detailed in paragraphs 14.1 or 14.2 continue for more than 3 months either party may serve written notice on the other terminating this Contract.
15.0 Escalation and dispute resolution
- Indigo Forward will try to work through any complaint or dispute that the Customer may have with Indigo Forward. If this does not resolve the matter then the Customer may refer it to the relevant dispute resolution service as follows:
- where appropriate, in accordance with the details set out in Indigo Forward’s Customer Complaints policy; or
- otherwise, as set out in clause 15.1(b) below.
- Any dispute must be raised in writing with the Customer’s or Indigo Forward’s representative as appropriate giving all relevant details including the nature and extent of the dispute. The Customer and Indigo Forward will use reasonable endeavours to resolve any dispute as follows:
- a dispute which has not been resolved by the Customer’s or Indigo Forward’s representative within 14 days of being raised may be referred by the Customer or Indigo Forward to the first level by written notice to the other; and
- if the dispute is not resolved at the first level within 14 days of referral, the Customer or Indigo Forward may refer the dispute to the second level by written notice to the other.
- The Customer’s and Indigo Forward’s representatives at the first and second levels are as notified by the Customer and Indigo Forward to the other from time to time.
- If the dispute is not resolved after the procedures detailed in clause 15.1 (b) have been followed then, if the Customer and Indigo Forward agree, the dispute will be settled by mediation in accordance with the procedures specified by the Dispute Resolution Service – Chartered Institute of Arbitrators (“DRS-CiArb”). If the dispute is referred to a mediator:-
- the mediator will be appointed by agreement between the Customer and Indigo Forward. If the Customer and Indigo Forward fail to agree within 7 days of a proposal by one party, the mediator will be appointed by DRSCiArb; and
- all negotiations on the dispute and any agreement reached will be kept confidential.
- Indigo Forward will try to work through any complaint or dispute that the Customer may have with Indigo Forward. If this does not resolve the matter then the Customer may refer it to the relevant dispute resolution service as follows:
16.0 Termination of this contract by notice
Indigo Forward may terminate this Contract or the Service provided on giving 30 days written notice. If the Customer terminates the Contract, Service or part of the Service, the Customer must pay any outstanding and/or cancellation Charges as specified in the Service & Charges Schedule, Accepted Quotation or Order Form including any charges applicable to the Minimum Period of Service.
17.0 Breaches of this contract
- If the Customer or Indigo Forward ends the Contract or the Service during the Minimum Period of Service the Customer will pay Indigo Forward the termination charges as set out in the Charges Schedule, Accepted Quotation or Order Form. This clause will not apply if:
- the Customer ends the Contract or Service during the Minimum Period of Service because Indigo Forward is in material breach of this Contract; or
- Indigo Forward ends the Contract or the Service during the Minimum Period of Service for convenience; or
- the Contract ends because either clause 9.4 or 14.3 applies.
- Either party may terminate this Contract or the Service (or both):
- immediately on notice if the other party commits a material breach of this Contract, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so. In this clause breach includes non-payment of any valid invoice by the due date; or
- immediately on notice if the other party commits a material breach of this Contract which cannot be remedied; or
- on reasonable notice if the other party is repeatedly in breach of this Contract and fails to remedy the breach within a reasonable time of a written notice to do so; or
- immediately on notice if the other party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over their assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the other party.
- If Indigo Forward is entitled to terminate this Contract under paragraph 17.2, Indigo Forward may, on giving prior notice where practicable, suspend the Service without prejudice to such rights. Where the Service is suspended under this paragraph the Customer must pay the Charges for the Service until this Contract is terminated.
- If the Contract ends, Indigo Forward will refund any money owed to the Customer after first deducting any money due to Indigo Forward under this Contract or any other contract that Indigo Forward has with the Customer.
- If either party delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver is limited to that particular breach.
18.0 Changes to this contract
- If the Customer asks Indigo Forward to make any changes to the Service Indigo Forward may ask the Customer to confirm the request in writing. If Indigo Forward agrees to a change, this Contract will be amended from the date when Indigo Forward confirms the change in writing to the Customer.
- Indigo Forward can change the Conditions of this Contract including the Charges, unless specified otherwise in the Service Schedule, accepted quotation, or Charges Schedule or Order Form, at any time. Indigo Forward will post any amended Contract on its website (or any other online address that may advise the Customer), and/or in accordance with clause 22, and will not give Customers:
- less than 14 days’ notice for changes that are to Customer’s significant detriment; and
- less than 1 day before the change is to take effect for all other changes.
19.0 Export control
Provision of the Service to the Customer is subject to export control law and regulations. Indigo Forward does not represent that any necessary approvals and licences will be granted. The Customer will provide reasonable assistance to Indigo Forward to obtain any necessary consent. If, through no fault of Indigo Forward, any necessary consents are not granted, then Indigo Forward can terminate this Contract or the provision of the Service (or part of the Service) under it (as appropriate) without any liability to the Customer.
20.0 Transfer of rights and obligations
The Customer may not transfer any of its rights or obligations under this Contract, without the written consent of Indigo Forward. Indigo Forward may transfer its rights or obligations (or both) or delegate its obligations to any supplier without consent.
Indigo Forward may assign or transfer any of its rights or obligations of this Contract without the prior written consent of the Customer. The Customer may not assign or otherwise transfer this Contract without the prior written consent of Indigo Forward, In the event that consent for the assignment is given, the terms of this Contract will be binding upon the Customers respective successor.
- Subject to paragraph 18.1 this Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
- The parties acknowledge and agree that:
- they have not been induced to enter into this Contract by any representation, warranty or other assurance not expressly incorporated into it; and
- in connection with this Contract their only rights and remedies in relation to any representation, warranty or other assurance are for breach of this Contract and that all other rights and remedies are excluded.
- The provisions of paragraphs 21.1 and 21.2 shall not affect the parties’ rights or remedies in relation to any fraud or misrepresentation.
- A person who is not party to this Contract (including an employee, the officer, agent, representative or subcontractor of the Customer or Indigo Forward) has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
- Clauses 11 and 12.13 will survive the termination or expiry of this Contract for two years.
- Indigo Forward may take instructions from a person whom it thinks, with good reason, is acting with the Customer’s permission.
23.0 Data protection
The Customer and Indigo Forward will comply with their respective obligations under the Data Protection Act 1998 and any data protection, privacy or similar laws that apply to any personal data processed in connection with the Contract. The Customer and Indigo Forward will provide such help and co-operation as is reasonably necessary or requested by the other to enable compliance with this clause.
Notices given under this Contract must, except for notice given under paragraph 3.5 and 18.2, be in writing and may be delivered by hand or by courier, or sent by first class post, facsimile or e-mail. Notices to be sent by first class post are to be addressed:
- to the Managing Director, Indigo Forward, 1 Cornhill, London, EC3V 3ND or any alternative address which Indigo Forward notifies to the Customer;
- to the Customer at any one or more of the following: the address to which the Customer asks Indigo Forward to send invoices, the address of the Site or the Customer’s primary email address or, if the Customer is a limited company, its registered office.
Addresses for notices to be sent by e-mail or facsimile must be agreed in writing by both parties. The Customer must inform Indigo Forward immediately if there is any change to any of the contact information the Customer provided to Indigo Forward.
If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of its provisions will continue in full force and effect as if this Contract had been executed with the invalid, illegal or unenforceable provision omitted.
26.0 Law and jurisdiction
This Contract is governed by the law of England and Wales and both parties submit to the exclusive jurisdiction of the English Courts.