Terms and conditions
DXI Limited (Trading as 8×8 UK) Client Agreement
This Agreement, which governs the terms and conditions of your use of the Services is between you (the “Client”) as an authorised user of the Services, and DXI Limited (“Supplier”) whose registered office is at Oxford House Bell Business Park, Smeaton Close, Aylesbury, Buckinghamshire, England, HP19 8JR (Company No. 07840563). This Agreement sets out the overarching terms and conditions under which any of Supplier’s telecommunication products and services can be ordered and used by the Client by accepting and registering for the Services available on www.easycontactnow.com. The Supplier reserves the right to update this Agreement by publishing amended and updated versions of the Agreement (‘the Amended Agreement’) on the Supplier’s website. The Client agrees that the terms of the Amended Agreement published on the Supplier’s website shall be deemed to be binding on the Client if the Client continues to use the Services.
1.1 In this Agreement:
“Address” means the destination address of any Recipient of a Message, as supplied by the Client to the Supplier;
“Agent” means any user of the Services;
“Agreement” means this Client Agreement;
“Applicable Law” means all present and future laws and regulations applicable to this Agreement and the provision and receipt of the Services;
“Call” means the connection of one or more parties via telecommunication networks by which the ability to transmit or receive voice communications is made possible.
“Call Charges” or “Phone Calls” means the duration of Calls multiplied by the applicable rate for each Call as published on the Website or as set out in an Order Form from time to time;
“Call Detail Records” means the call data records of the Parties;
“Charges” means the Installation Fee, the Call Charges, the Recurring Charges, the Media Charges, the Message Charges, the Service Charges and the Other Charges as published on the Website or as set out in an Order Form from time to time;
“Code of Practice” means any guidance or legal and regulatory codes of practice, rules of procedure, guidelines, directions or policies and any other requirements applicable to the Services (including but not limited to those issued by any regulatory authority in relation to the operation of the Services or components of the Services) in each case as amended from time to time;
“Confidential Information” has the meaning set out in clause 18;
“Control” means either: (a) the voting rights attaching to twenty five percent (25%) or more of the voting shares in the applicable legal entity; or (b) the power to direct or cause the direction and management of the policies of the applicable legal entity in accordance with a Party’s wishes, whether as a result of the ownership of shares, control of the board of directors, contract or any powers conferred by the articles of association or other constitutional documents of the applicable legal entity;
“Default Rate” means the annual rate of three percent (3%) above the then current base rate of The Bank of England;
“Dispatch” means the dispatch by the Supplier of a Message to the Recipient at the Address, subject to the terms of this Agreement but shall exclude the carriage and arrival of the Message;
“Effective Date” means the date on which the Supplier confirms the Client’s application to register for the provision of Services by providing to the Client the Registration Details as set out in clause 4;
“Format Requirements” means the format requirement for Messages specified on the Website from time to time (including in case of voicemail Messages, completion of the scheduling boxes detailing the required timing of Dispatch of the Message) or as otherwise notified to the Client from time to time;
“Initial Term” means a period of three (3) years from the Effective Date;
“Installation Fee” means the one-off fee payable for provision of installation Services as published on the Website or as set out in an Order Form from time to time;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Media” means the connection of one or more parties via telecommunication networks by which the ability to transmit or receive any data, excluding Calls or Messages is made possible;
“Media Charges” means the prices relating to Media as published on the Website or as set out in an Order Form from time to time;
“Message” means a message (which shall include all material, content, information, graphics, sound or any other data comprised within it) submitted by the Client in accordance with the Format Requirements intended for a particular Recipient;
“Message Charges” means the prices relating to Messages published on the Website or set out in an Order Form from time to time or otherwise calculated on the number of messages submitted and accepted by the Supplier;
“Message Description” means the accurate description of the type of contents of a Message (e.g. voice, fax, SMS, email or other);
“Order” means an order for any of the Services placed by the Client;
“Order Form” means an order for Services substantially in the form provided by the Supplier from time to time;
“Other Charges” means any other charges (other than the Call Charges, the Recurring Charges, the Message Charges, the Media Charges, the Service Charge and Installation Fee) including agent login and any other charges published on the Website or set out in an Order Form from time to time;
“Password” means the unique password linked to the Username which enables the Client to access the Services;
“Parties” means the Supplier and the Client;
“Pre-Payment” means an advance payment made from the Client to the Supplier, which will be held by the Supplier and applied to the Client’s use of the Services in accordance with clause 6;
“Pre-Payment Balance” means the balance of Pre-Payments;
“Rates” means the applicable rates at which the Charges will be calculated, as published on the Website or as set out in an Order Form from time to time;
“Recurring Charges” means the recurring charges for provision of the Services published on the Website or set out in an Order Form from time to time;
“Recipient” means a specific person to whom the Client intends the Supplier to dispatch a Message as specified by the Client and in accordance with the Format Requirements;
“Registration” means the registration and the provision by the Supplier to the Client of the customer ID, Username and initial Password pursuant to clause 4 to enable the Client to access the Services (and “Registration Details” shall be construed accordingly);
“Services” means the services to be provided to the Client as published on the Website or as set out in an Order Form from time to time;
“Service Charge” means the charges payable by the Client as published on the Website or as set out in an Order Form from time to time;
“Service Specific Terms” means the terms and conditions specific to a particular Service as published on the Website or set out in an Order Form for such Services from time to time;
“Supplier System” means any software, equipment and other property owned and operated or leased and operated by the Supplier for the purposes of providing the Services;
“Termination Payment” has the meaning set out in clause 17.1;
“Username” means the unique user name created by the Supplier for the Client;
“Website” means the Supplier’s website at www.easycontactnow.com.
2.1 The words and phrases used in this Agreement shall have the meaning generally understood in the telecommunications and communications industry. This Agreement shall be construed in accordance with its fair meaning and is not to be construed for or against either Party on account of which Party drafted this Agreement.
2.2 In this Agreement, unless the context otherwise requires or the contrary intention appears:
2.2.1 a reference to a provision of law is a reference to that provision as extended, applied, amended or enacted from time to time and includes any subordinate legislation;
2.2.2 the singular includes the plural and vice versa, and reference to any gender includes the other genders;
2.2.3 references to a person include bodies corporate and unincorporated associations of persons;
2.2.4 references to this Agreement and to any other agreement or document are to this Agreement or such other agreement or document as it may be validly varied, amended, supplemented, restated, renewed, novated or replaced from time to time; and
2.2.5 references to clauses refer to clauses of this Agreement.
2.3 The index and headings in this Agreement are for convenience only and do not affect its interpretation.
3. Description of Services
3.1 This Agreement contains the general terms and conditions governing the provision of Services by the Supplier to the Client. Additional Service Specific Terms may be contained on the Website and supplement the terms and conditions in this Agreement including, without limitation, the term of the Services, volume requirements, technical and logistical specifications, geographic scope and pricing.
3.2 Nothwithstanding clause 3.1, the Supplier may exceptionally agree that additional Service Specific Terms be contained in an Order Form and supplement the terms and conditions in this Agreement. In the event that the terms set out in an Order Form (including the Service Specific Terms) are in conflict with those contained in this Agreement, the terms and conditions of the Order Form shall prevail to the extent of the conflict.
3.3 The Client is responsible for the accuracy of all information submitted to the Supplier.
3.4 Subject to the terms of this Agreement, the Supplier shall provide the Services to the Client.
3.5 The Agreement shall become binding on the Parties once the Client has registered on the Website upon the Client receiving the Registration Details as confirmation of a successful registration. In the event the Supplier declines to supply Services to the Client, it shall notify the Client of such decision following which neither party shall be under any further obligation to the other. For the avoidance of doubt, this Agreement shall not become binding on the Supplier until the Supplier has supplied the Registration Details to the Client.
3.6 This Agreement contains all the terms agreed between the Parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiation between the Parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other in which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently or was as to a fundamental matter, including as to a party’s ability to perform this Agreement) and that party’s only remedies shall be for breach of contract as provided in this Agreement.
3.7 The terms of this Agreement shall apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Client.
4. Ordering Process and Passwords
4.1 As part of the registration process for the Services, the Client agrees to provide all requested contact details including contact email address which are true, accurate, correct and complete. The Supplier may at its sole discretion decline any application to register for the provision of Services. Once a Client becomes a registered user, the Supplier will notify the Client of the Registration Details by email.
4.2 Following acceptance by the Client of this Agreement, but subject to Clause 4.1, the Supplier will initiate Registration.
4.3 On receipt of the Registration Details, the Client may use the Services.
4.4 The Client shall be solely responsible for maintaining the confidentiality of the Registration Details at all times including its authorisation details and accounts information. The Client shall immediately notify the Supplier in writing of any unauthorised use of any of the Registration Details; any unauthorised use of its accounts; any unauthorised use of any of the Services; or any other breach of security known by the Client. The Client shall be liable to pay for all Orders made or for any use of the Services as a result of the unauthorised use of the Registration Details; its accounts; the Services; or as a result of any other breach of security known by the Client.
4.5 When an Order relating to Messages supplied by the Client has been received by the Supplier, the Supplier shall acknowledge receipt online and Dispatch the Messages to which the Order relates, subject to any period specified by the Client for Dispatch of particular Messages, in which case the Supplier shall Dispatch such Messages in compliance with that period.
5.1 This Agreement is effective and the Parties’ obligations shall commence upon the Effective Date and, unless otherwise terminated pursuant to the terms of this Agreement, shall continue for the Initial Term and, thereafter, shall automatically renew for consecutive three (3) year terms, unless terminated by either Party on providing the other Party with at least three (3) months’ written notice prior to the end of the Initial Term or any subsequent three (3) year term. Such notice is to become effective as at the end of that three (3) year term, resulting in termination three (3) months after expiry of the three (3) year term, provided that such notice expires no earlier than the expiry of the Initial Term.
6. Pricing and Billing
6.1 Commencing on the Effective Date, the Client shall pay the Supplier the Charges. The Client also shall pay the Pre-Payment to the Supplier and agree that the Client shall not have a right to claim any refund in respect of any Pre-Payments made to the Supplier and any Pre-Payment Balances.
6.2 The Parties agree that the Client and the Supplier shall operate a pre-payment scheme under this Agreement as follows:
6.2.1 the Client will make an initial Pre-Payment to the Supplier of the amount specified on the Website or in an Order Form from time to time. The Services will not be provided to the Client until this Pre-Payment is received by the Supplier in cleared funds. The initial Pre-Payment will be held by the Supplier on the Client’s behalf as the first Pre-Payment Balance. If the Supplier does not receive the initial Pre-Payment within three (3) months of the date of this Agreement, it may terminate this Agreement without notice to the Client;
6.2.2 the Supplier will deduct from the Pre-Payment Balance all amounts due, including Recurring Charges, Call Charges, Service Charges, Media Charges, Message Charges and Other Charges and all applicable taxes payable by the Client;
6.2.3 the Client shall make any payments to the Supplier it deems necessary to maintain the Pre-Payment Balance above the minimum amount required to use the Services as published on the Website or as otherwise agreed by the Parties from time to time (the “Minimum Amount”). If at any time the amount of the Pre-Payment Balance falls to zero, the Supplier will have the right to immediately suspend the Services (or any part of the Services) without notice to the Client. The Supplier will restore the applicable Services only when the Pre-Payment Balance has been reinstated to at least the Minimum Amount. Should the Client fail to reinstate the Pre-Payment Balance to at least the Minimum Amount within two (2) months of the date of the suspension of the Service(s), the Supplier shall have the right to terminate the Services immediately. In the event of termination pursuant to this clause 6.2.3, the Supplier shall have the right to erase any data stored by the Client on the Supplier System and any elements of the Services, including all call recordings without the Supplier incurring any liability whatsoever;
6.2.4 If the Client fails to use a Service for a period of twelve (12) consecutive months, any existing Pre-Payment Balance relating to that Service will be forfeited and retained by the Supplier. All data stored by the Client on the Supplier System and any elements of the Services will be erased without the Supplier incurring any liability whatsoever. If the Client wishes to use the Services after forfeiture of any existing Pre-Payment Balance under this clause 6.2.4, the Client agrees to make a new Pre-Payment to use the Services.
6.3 In addition and without prejudice to any other remedies the Supplier may have, if the Client fails to pay any amount when due, the Supplier may charge interest on the unpaid balance from the date due until the date paid, at the Default Rate. The Supplier may also set-off amounts payable by the Supplier to the Client under this Agreement or otherwise against any unpaid balance if the Client fails to pay any amount when due.
6.4 The Charges payable by the Client are exclusive of, and the Client shall assume and pay promptly, all applicable taxes, including value added tax and consumption taxes directly comparable therewith (such as goods and sales taxes), including any non-deductible taxes and duties on services rendered by sub-contractors of the Supplier, and duties or levies imposed by any authority, government or government agency (except income tax attributable to the Supplier).
6.5 Unless otherwise specified on the Website or in an Order Form, all monetary references in this Agreement are denominated in UK pounds sterling, and all financial transactions under this Agreement must be settled in UK pounds sterling.
6.6 The Charges will be calculated in accordance with the rates published on the Website (as may be amended by the Supplier from time to time in accordance with this Agreement) or the rates set out in an Order Form. Call Charges will be calculated on the basis of the Supplier’s Call Detail Records. In the event of a conflict between the Supplier’s and the Client’s Call Detail Records, the Supplier’s Call Detail records will prevail. The Supplier’s Call Detail Records are only available for a period of ten (10) working days from the last day of the relevant month for which the disputed Charges arise. The Client has fifteen (15) working days from last day of the relevant month for which the disputed Charges arise to send any queries to the Supplier.
6.7 Service Charges are made on all Media, Messages and calls connected to an Agent. The Service Charge is made on the whole duration of a call, even if an agent transfers that call onto a third party. If a call is transferred to another agent, two call legs are created – one outbound to the second agent and one inbound from the first agent. Both call legs are independently charged including Service Charge.
6.8 The Supplier uses conference bridges to facilitate conferences and third party transfers. Calls are placed into conference rooms which are then conferenced with one or more other calls. Each call leg in a conference room is independently charged.
6.9 All Calls will be recorded and charged in seconds. All call durations will be rounded to the nearest second. All Charges shall be rounded up to the nearest penny.
6.10 Other than the Call Charge tariffs, including international call rates, which are set out on the Website and are updated from time to time, the Supplier may change all other Charges on one (1) working day notice to the Client by sending an email notifying the change to the e-mail address provided by the Client on the Website. At the expiry of the 1 day notice, if the Client continues to use the Services, the Client will be deemed to have agreed such changes and such charges will be deducted from the Client’s Pre-Payment Balance. For Call Charge changes, the Client is advised to check the Website periodically for any such updates.
6.11 The Client shall pay the Supplier by any payment method reasonably stipulated by the Supplier. Any payments made via credit charge will be subject to a 2.5% surcharge to be automatically deducted from the Client’s Pre-Payment Balance.
6.12 Payment of all sums due to the Supplier under this Agreement shall be made by the Client in full without any set-off, deduction of withholding whatsoever.
7. Billing Disputes
7.1 Written notice regarding any dispute as to the amount owing must be provided to the Supplier in reasonable detail (including documentation identifying the invoice to which the dispute relates, the Charges which are in dispute, the objections to the Charges in dispute and any supporting data), as soon as reasonably practicable and in any event within in each case within five (5) calendar days of the occurrence of the issue of the disputed invoice or invoices.
7.2 In the event of a dispute, the Parties shall in good faith investigate the matter promptly and use their reasonable endeavours to resolve the disputed charges within fourteen (14) calendar days following notice of the dispute. If the Parties are unable to informally resolve the dispute in good faith within fourteen (14) calendar days following notice of the dispute, the dispute shall be addressed in accordance with the provisions of clause 29. Nothing in this clause 7 shall be construed to constitute a waiver of the Supplier’s right to terminate this Agreement or to exercise any other rights under this Agreement or at law or in equity.
9. Responsibilities of Client
9.1 The Client will comply with all Applicable Laws relevant to this Agreement and its use of the Services including, without limitation, the Data Protection Act 1998, the Data Retention (EC Directive) Regulations 2009, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (including the prohibition on making unsolicited or direct marketing calls to any subscriber to the Telephone Preference Service), the Communications Act 2003, the Regulation of Investigatory Powers Act 2003, the Consumer Protection from Unfair Trading Regulations 2008 and Ofcom’s policy on silent and abandoned calls. The Client shall be solely responsible for checking the Telephone Preference Service register before making any direct marketing calls. The Client will be responsible for obtaining and maintaining all necessary licences, permits and approvals required by any and all governmental authorities to permit the Client to receive and use the Services and comply with its obligations under this Agreement. The Client further represents that its use of the Services will be in accordance with such licences, permits and approvals, and that it will not use the Services for any unlawful or unauthorised purpose. The Client shall be solely responsible for its compliance with all applicable laws of the countries in which the Client uses the Services.
9.2 The Client consents to the Supplier making information available about the Client’s name and company details to any party called as part of the provision of the Services in the event such called party so requests.
9.3 The Client shall comply with and ensure that it complies at all time with this Agreement.
9.4 The Client shall ensure that all use of Services by the Client or any of its affiliates, agents, employees, contractors, customers and third parties shall not infringe or breach or otherwise violate the rights of any person or entity (including without limitation any Intellectual Property Rights or privacy and personal data rights) or any other rights set in this Agreement, and that all requisite licenses and consents have been and shall be obtained from such persons and entities in order to prevent any such infringement or breach or violation.
9.5 The Supplier in its sole discretion may require the Client to take primary responsibility for any enquiries from a regulatory body or a third party into any actual or alleged breach of this Agreement by the Client or any of its affiliates, agents, employees, contractors, customers and third parties including without limitation in relation to any Services, any information provided by the Client. The Client agrees, at its own cost, to accept full responsibility for any such actual or alleged breach, and in relation to such enquiries, to timely provide all requested information to the regulatory body or the third party raising such enquiries. If the Client defaults in complying with its obligations under this clause 9.5, the Client agrees that the Supplier may act in the name and on behalf of the Client to provide all requested information to the regulatory body or the third party raising such enquiries (to the extent that the Supplier is able to provide such information). The Client acknowledges and agrees that the Supplier shall not incur any liability whatsoever and howsoever arising for providing the information requested. The Client further acknowledges and agrees that the Supplier shall charge the Client a sum equivalent to the cost incurred by the Supplier including an administration fee for dealing with the Client’s obligations under this clause 9.5. Such sum will be deducted from the Client’s Pre-Payment Balance. If the Client’s Pre-Payment Balance is not sufficient to satisfy the sum due under this clause, the Supplier will invoice the Client for such sum to be payable within 7 days from the date of the invoice.
9.6 The Client shall promptly notify the Supplier of any claims, obligations, agreements or court orders against the Client or any of its affiliates, agents, employees, contractors, customers and third parties or to which the Client or any of its affiliates, agents, employees, contractors, customers and third parties is a party that arises out of, relates to, or affects any part of the Services or other facts that call into question the Client’s ability to comply with the terms and conditions of this Agreement.
9.7 The Client will not, nor will it permit or assist others to, and will take all reasonable steps to ensure that its own employees, contractors, customers, affiliates, agents and third parties do not, misuse, abuse or fraudulently use the Services, including, but not limited to, the following:
9.7.1 obtaining or attempting to obtain services by any means or device with intent to avoid payment; or
9.7.2 unauthorised access, alteration, destruction or any attempt, of any information of another Supplier customer by any means or device; or
9.7.3 using Services so as to impair or interfere with the use of Supplier System by other customers or authorised users, or in violation of the law or in aid of any unlawful act; or
9.7.4 using Services to impair or interfere with the privacy of any communications; or
9.7.5 using Services to send, transmit or communicate any material, data, images or information or to market anything which is or may be reasonably considered by the Supplier to be:
(a) in breach of any Applicable Law, Code of Practice or acceptable use policy;
(b) obscene, indecent, libellous, pornographic, seditious, threatening, unlawful, harmful, vulgar, liable to incite racial hatred, discriminatory, menacing, blasphemous or which is racially, ethnically or otherwise objectionable. defamatory, false, inaccurate, abusive or otherwise offensive; or
(c) in breach of confidence, copyright or other intellectual property rights, privacy or any other right of any third party;
9.7.6 using the Services in breach of any other conditions which the Supplier may notify to the Client in the interests of best working practices in the telecommunications and communications industry.
9.8 The Client shall take every reasonable precaution in its use of the Services to prevent contamination of any software or hardware or diffusion of any software or hardware contamination including computer viruses, logic bombs or other similar destructive code.
9.9 The Client shall not alter, adapt or translate the whole or any part of the Services in any way whatsoever nor permit the whole of any part of the Services to be combined with or incorporate in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things. The Client shall immediately report in writing any error or problem involving the Services to the Supplier. Following receipt of such report of any error or problem with the Services, if the same is the responsibility of the Supplier, the Supplier shall use commercial endeavours to respond promptly and to correct the error or problem.
9.10 The Client shall be solely responsible for:
9.10.1 the content of information and communications transmitted by its use of the Services;
9.10.2 the Client’s use and publication of communications and/or information using the Services;
9.10.3 maintaining confidentiality and security of any passwords or other security features giving access to the Services; and
9.10.4 inform the Supplier immediately of any changes in ownership or Control of the Client, and any change in its organisation or method of doing business that might be expected to affect the performance of the Client’s duties under this Agreement.
9.11 The Client shall further:
9.11.1 ensure that all data supplied by the Client of whatever form or which comprises any Message, Message Description, Address or Recipient, will: a) be true, accurate and complete; and b) comply with the Format Requirements;
9.11.2 if necessary for the Supplier to perform its obligations under this Agreement, promptly provide to the Supplier such information and assistance that will enable the Supplier to fully, accurately and promptly carry out its obligations under this Agreement;
9.11.3 keep confidential and secure all Registration Details used in relation to the Services and the Client accepts that use of the Registration Details allocated to the Client shall constitute sufficient authority to the Supplier to perform the Services and be entitled to payment for so doing;
9.11.4 if necessary for the Supplier to perform its obligations under this Agreement, promptly comply with the reasonable requests of the Supplier from time to time in connection with this Agreement;
9.11.5 assume all responsibility for the upload to the Supplier of Messages, Message Descriptions, Addresses and Recipients. The risk of and responsibility for the upload to the Supplier is with the Client; and
9.11.6 be responsible for ensuring that, and hereby warrants and undertakes to the Supplier that, the Messages and the sending of them by the Client and the receipt of them by any recipient, and the use of them (and the Message Descriptions, Addresses and Recipients) by the Supplier to perform the Services in accordance with this Agreement conforms in all respects with all applicable laws, rules, regulations, bye-laws and codes of practice, and they do not contain any material, and the use of them will not be, detrimental to the Supplier.
9.12 It is the Client’s responsibility to ensure that the Services are sufficient and suitable for its purposes and meet its individual requirements.
9.13 The Client further warrants to the Supplier that:
9.13.1 the Client is authorised to receive the Services and the Recipient is authorised to receive Messages;
9.13.2 it shall not use the Services or permit the Services to be used for illegal or immoral purposes;
9.13.3 it shall not interfere with any third party’s use and enjoyment of the Services or engage in surveys, contests, chain letters or post or transmit junk mail (whether physical or electronic), “Spam”, “chain letters” or other unsolicited mass distribution of email without the prior written consent and approval of the Supplier;
9.13.4 it shall not use the Services in any way that may diminish or damage the Supplier’s goodwill or that may cause a reasonable person to assume an association between the Supplier and (without limitation) pornography, crime defamation or copyright infringement;
9.13.5 it shall not attempt to or actually interfere with the proper functioning of the Website or any transactions being offered at the Website. Furthermore, the Client warrants that it shall not use any device, software or routine which may potentially or actually cause the same;
9.13.6 it shall not commit any act that would or does impose an unreasonable or disproportionately large load on the Supplier’s or any carrier’s infrastructure;
9.13.7 it shall not impersonate any person or entity or falsely state or otherwise misrepresent Client’s affiliation with a person or entity; and
9.13.8 it shall maintain and update any details which it has provided to the Supplier about the Client and the Client’s business so that such details remain current, complete and accurate.
9.14 For voice format Messages, the Client may be supplied with an appropriate digital voice recorder for the recording of the same in accordance with the Format Requirements. The Client is not obliged to use such voice recorder for recording any voice format Messages in respect of which the Services are to be provided by the Supplier but the Client acknowledges that the ability of the Supplier to perform the Services to any extent in respect of such voice format Messages may be impeded (and the quality of any such voice format Messages may deteriorate) if such recorder is not used.
9.15 Notwithstanding clause 13, the Supplier shall in its absolute discretion be entitled to relay to any regulatory body (with or without notice to the Client) any breach (or breach reasonably suspected by the Supplier) by the Client of any of its obligations under this clause 9 and provide details thereof (including without limitation the content of any Messages), and may, on notice to the Client suspend the provision of the Services with immediate effect.
9.16 The Client undertakes to supply to the Supplier within a reasonable timeframe copies of any messages uploaded into its system for the purpose of the Supplier’s own internal audit or if required to supply to any regulatory body.
9.17 Notwithstanding clause 14.6, the Client shall indemnify the Supplier against all costs, losses, damages, claims or proceedings which the Supplier may incur or suffer arising out of any breach of this clause 9.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights belonging to a Party or its licensors prior to the Effective Date and all modifications to them will remain vested in that Party or its licensors.
10.2 The Supplier retains all Intellectual Property Rights that are created or otherwise arise during the course of this Agreement and the Client hereby assigns with full title guarantee and free from all third party rights, including by way of present assignment of future rights, the Intellectual Property Rights and all other rights in the products of the Services delivered during this Agreement.
10.3 No Intellectual Property Rights are granted to the Client, save for any licence granted by the Supplier to the Client for the purposes only of receiving the Services under this Agreement.
10.4 The Client acknowledges and agrees that the Supplier does not sell, resell, licence or sub-licence any software to the Client and other customers for the purpose of providing the Services.
10.5 None of the Client or any of its affiliates, agents, employees, contractors, customers and third parties shall undertake or permit the undertaking of any act of any kind which contravenes any of the Supplier’s Intellectual Property Rights and all other rights the Supplier may have in the products of the Services delivered during this Agreement.
10.6 The Client shall only use the Services for its own usual business or personal purposes and shall not without the Supplier’s prior written consent, allow any third party to use the Services or supply the Services to any third party; and then only as contemplated by this Agreement.
10.7 If the Client becomes aware of any improper or wrongful use of the Intellectual Property Rights used, the Client shall forthwith inform in writing the Supplier of such use. The Client shall if requested assist the Supplier in taking any steps in connection with the protection or defence thereof as the other may determine.
10.8 The Client shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services in a manner contrary to the instructions given to the Client by the Supplier or in relation to any infringement or alleged infringement of any of the Supplier’s Intellectual Property rights or of any third party’s intellectual Property Rights by the Client.
10.9 The Parties agree that in relation to Messages only:
10.9.1 the Supplier acknowledges that as between the Supplier and the Client, the Client and its licensors own all Intellectual Property Rights in the Messages. To enable the Supplier to lawfully provide the Services, the Client shall be responsible for:
(a) having all rights and intellectual Property rights in the Messages; and
(b) ensuring that the Recipients have all rights to receive the Message;
10.9.2 the Client hereby grants to the Supplier a royalty-free, worldwide, perpetual, non-exclusive, assignable, sub licensable licence to use the Messages and any other material (including without limitation any branding) and any Intellectual Property Rights of the Client in relation to the foregoing for the purposes of providing the Services. Subject to the terms of this Agreement, the Supplier shall not use the Messages or otherwise exploit the Intellectual Property Rights of the Client for any other purpose without the Client’s express prior written consent.
11. Supplier Warranties
11.1 In performing its obligations under this Agreement, the Supplier warrants that it shall:
11.1.1 exercise reasonable skill and care; and
11.1.2 ensure that at all times only suitably qualified persons are used in the provision of the Services.
11.2 The Supplier warrants to the best of its knowledge that the Services shall not:
11.2.1 infringe on the Intellectual Property Rights of any third party;
11.2.2 violate any law, including the laws and regulations governing export control;
11.2.3 contain any viruses, or any other computer programming routines in existence or yet to be created that are intended to damage, interfere with or intercept any system or extract any data or personal information.
11.3 The Supplier warrants that the Intellectual Property Rights in the Services are either owned by or licensed to the Supplier. The Supplier shall defend the Client against any third party claim, action, suit or proceeding resulting from a breach of this warranty. Subject to clause 14, the Supplier shall indemnify the Client for all losses, damages, liabilities and other reasonable expenses and costs incurred by the Client as a result of a breach of this clause. The Supplier’s obligations under this clause 11.3 are conditional upon the Client:
11.3.1 as soon as reasonably practicable, giving written notice of the claim to the Supplier, specifying the nature of the claim in reasonable detail;
11.3.2 not making any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
11.3.3 giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Client, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the claim; and
11.3.4 subject to the Supplier providing security to the Client to the Client’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
11.4 Clause 11.3 constitutes the Client’s exclusive remedy in respect of any claim made under it.
11.5 The Supplier does not warrant that the Services will be uninterrupted or error-free or that they will meet the individual requirements of the Client.
11.6 The Supplier does not warrant any Call or Messages or Media will be delivered to a Recipient at the Address and the Client acknowledges that the Supplier’s obligations are limited to the Dispatch of Messages and the initial transmission of the same but not any on-going transmission or delivery of the same (which are dependent on third party carriers outside the control of the Supplier).
11.7 Except where expressly provided for within this Agreement, the Supplier excludes all conditions, warranties and representations, whether express or implied by statute, common law or otherwise, to the fullest permitted by law in respect of the Services.
12. Emergency Services
The Client acknowledges and agrees that the Services do not allow Calls to be initiated by end users of the Services to emergency services numbers in any country in the world (“Emergency Services”). The Client shall make its end users aware that Calls may not be made under this Agreement to the Emergency Services.
13. Data protection
13.1 In performing this Agreement, each Party shall:-
13.1.1 comply with all applicable data protection legislation; and
13.1.2 procure that its affiliates, employees, agents, consultants and contractors comply with all applicable data protection legislation.
13.2 The Client acknowledges and agrees that personal data will be processed by or on behalf of the Supplier in connection with the Services.
13.4 While the Supplier agrees to take all necessary technical and organisational steps to ensure the security of the Services, it is not responsible for the accidental loss or destruction of any personal data the Client provides using the Services and the Supplier excludes all liability of any kind in relation to the content or security of personal data that the Client sends or received through the Services. For the avoidance of doubt, this clause does not limit or exclude any liability of the supplier for a breach of the Supplier’s data protection obligations in relation to the information which the Supplier obtains from the Client during this Agreement.
13.5 The Client agrees and acknowledges that, as part of the Services provided, Calls, Messages and Media may be recorded, accessed by the Client and retained on behalf of the Client. The Client shall be solely responsible to (a) notify its employees and any of its counterparties that Calls, Messages and Media may be recorded, accessed by the Client and retained and (b) to obtain all and any such consents or permissions for such recording, access and retention as may be required by law or contract. At all times, the Client shall ensure that it complies with all applicable data protection legislation. The provisions of the Indemnity set out in clause 15 shall apply to any breach by the Client of this clause 13.5.
13.6 The Client agrees and acknowledges that the Supplier may be required by law to provide assistance to law enforcement, governmental agencies and other authorities. Accordingly, the Client agrees that:
13.6.1 the Supplier may implement and maintain an interception capability suitable to meet these requirements where the Supplier is obliged by law to ensure or procure that such a capability is implemented and maintained;
13.6.2 the Supplier may implement and maintain a data retention capability for the Services to meet requirements where the Supplier is obliged by law to ensure or procure that data is retained; and
13.6.3 the Supplier may at times co-operate with law enforcement authorities and rights-holders in the investigation of any suspected or alleged illegal activity by the Client. If the Supplier is required to do so by law, this may include but is not limited to, disclosure of the Client’s contact information to law enforcement authorities or rights-holders.
13.7 The Supplier holds full records of all calls dialled by all clients, Messages or Media for as long as required following transmission for the purposes of billing and other legitimate business purposes. After that, all logs are destroyed unless prior commercial arrangements are made for the Supplier to store such data for a longer period. The Client may store address lists in their own address books available via supplied log in details.
14. Limitations of Liability
14.1 Except for the express warranties set out in clause 11, the provision of the Services are performed, provided and made available on an “as is” basis and the Client’s use of the Services is at its own risk. The Supplier disclaims any and all other express and implied warranties, including but not limited to warranties of satisfactory quality, fitness for a particular purpose and any warranties arising from course of dealing, usage or trade practice. The Supplier makes no warranty that the Services will meet the Client’s requirements, nor that the Services will be uninterrupted, timely, secure, or error free. No advice, information, or expectation, whether oral or written, obtained by the Client through use of the Services shall create any warranty not expressly made in this Agreement.
14.2 In the event of any failure in the Services, the Supplier shall not be liable to the Client or any of the Client’s clients, for any charges or related costs and expenses incurred should the Client or any of its clients divert its telecommunications traffic or other types of traffic to another carrier. The Client shall indemnify the Supplier against all costs, losses, damages, claims or proceedings which may be asserted or claimed by the Client’s clients which arise out of or relate to any defect in the Services.
14.3 The Parties recognise that neither Party has control over the laws or regulations of governments in relation to telecommunications and communications related services.
14.4 Provisions of applicable legislation may imply warranties or conditions or impose obligations upon the Supplier that cannot be excluded, restricted or modified, or that cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read and construed subject to any such legislation. If any such legislation applies, then to the extent to which the Supplier is entitled to do so, the liability of the Supplier under that legislation will be limited at the Supplier’s option to:
14.4.1 re-supply of the Services;
14.4.2 payment of the cost of having the Services supplied again; or
14.4.3 any other remedy prescribed by Applicable Law.
14.5 Except as otherwise provided in this Agreement, neither Party will be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Agreement for any indirect or consequential loss or damage, even if such Party has been advised of the possibility of such loss or damage.
14.6 Except as otherwise provided in this Agreement, the Parties agree that the Client’s maximum liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with any particular Service, shall be limited to an amount equal to the total amount of payments made by the Client to the Supplier for that Service in the last month preceding the event out of which the liability arose.
14.7 Except as otherwise provided in this Agreement, the Parties agree that the Supplier’s maximum liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with any particular Service, shall be limited to an amount equal to the Other Charges paid by the Client for that Service in the last month preceding the event out of which the liability arose. For the avoidance of doubt, no other charges shall be included in the calculation of the amount payable by the Supplier under this clause 14.7.
14.6 This Agreement contains the whole agreement between the Parties relating to the matters contained in this Agreement and supersedes and discharges all liability arising from any previous agreement (whether oral or in writing), discussions, negotiations and understandings between the Parties relating to those matters.
14.7 Each party acknowledges that in entering into this Agreement it has not relied on any express or implied representation (including any negligent misrepresentation), which is not expressly set out in this Agreement.
14.8 In connection with the subject matter of this Agreement, each party waives all rights and remedies (including any right or remedy based on negligence or negligent misrepresentation) which might otherwise be available to it in respect of any express or implied representation which is not expressly set out in this Agreement.
14.9 Nothing in this Agreement excludes or limits either Party’s liability for:
14.9.1 the tort of deceit or fraud by it or its employees;
14.9.2 death or personal injury caused by its or its employees’ negligence; or
14.9.3 a breach by that Party of obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
The Client shall indemnify, defend and hold harmless the Supplier, its parents, subsidiaries, affiliates, officers and employees, against all liabilities, claim and expenses that may arise from any breach of the Agreement by the Client.
16. Suspension and Termination Rights
16.1 Notwithstanding anything to the contrary set out in this Agreement, the Supplier may suspend or terminate any applicable Service, with no further obligation to the Client:
16.1.1 immediately and without notice if any misuse of such Service or misconduct with respect to such Service on the part of the Client or its clients would, in the Supplier’s reasonable opinion, cause material damage to the Supplier’s network, facilities or other property;
16.1.2 immediately and without notice upon the request of the police or any regulatory body;
16.1.3 immediately if, in the Supplier’s reasonable opinion, it is at risk of incurring legal liability in relation to the Client’s breach of clause 9;
16.1.4 if the Client continues to engage in any of the activities prohibited in clause 9 after written notice from the Supplier and a fourteen (14) day cure period.
16.2 Either Party may terminate this Agreement:
16.2.1 if the other Party is in material breach of this Agreement and such breach is either not capable of being cured or has not been cured within fourteen (14) days after receipt by the defaulting Party of written notice from the non-defaulting Party; or
(a) in the event of any evidence of the potential or imminent insolvency of the other Party or that Party’s insolvency, dissolution or cessation of business operations;
(b) if the other Party files a petition in bankruptcy or if a petition in bankruptcy is filed against it; or
c) if the other Party makes an assignment for the benefit of any of its creditors or similar arrangement pursuant to any bankruptcy law or similar law of an applicable jurisdiction.
16.3 Any termination of this Agreement is without prejudice to any other rights or remedies any Party may be entitled to under this Agreement or at law. It does not affect any accrued rights or liabilities of any Party nor any provision which is expressly or by implication intended to come into force on, or continue in force after, termination.
16.4 The Supplier shall have the right to retain data and any analysis thereof for so long as it considers it necessary for legitimate business or legal purposes. On termination of this Agreement howsoever caused, the Supplier shall have the right (but not the obligation) to delete all elements of the Services, including but not limited to call and message recordings and to dispose of all other Client’s data without the Supplier incurring any liability whatsoever. If the Client requests access to call or message recordings or other data after termination and if such data has not been deleted, the Supplier may make a charge for providing such access.
17. Termination Payment
17.1 In the case of termination of this Agreement:
17.1.1 by the Client for any reason other than a material breach primarily attributable to the Supplier; or
17.1.2 by the Supplier pursuant to the terms of clauses 16.1 or 16.2, the Client shall remain liable to pay the Supplier an amount equal to:
(a) any Other Charges, Service Charges and Installation Fees owing by the Client; plus
(b) the Recurring Charges for the remainder of the terms of all affected Services up to and including the date of termination; plus
(c) the Message Charges, Media Charges for the remainder of the terms of all affected Services up to and including the date of termination; plus
(c) the Call Charges for all affected Services up to and including the date of termination; plus
(d) the aggregate charges payable to any third parties (if any) for which the Supplier is or becomes contractually liable in connection with any such termination, together the “Termination Payment”.
17.2 The Client acknowledges and agrees that, in accordance with clause 6.1, any Pre-Payment Balance shall be retained by the Supplier.
17.3 The Client acknowledges and agrees that the Termination Payment is a genuine pre-estimate of the Supplier’s loss in the event of early termination of this Agreement and is not intended to be a penalty.
18.1 “Confidential Information” means the terms of this Agreement and other information of any type and form reasonably related to this Agreement and the Services that the receiving Party (the “Receiver”) knows or has reason to know or reasonably believe is confidential, proprietary or trade secret information of the other Party (the “Discloser”), whether or not the information is marked as confidential or proprietary at the time of disclosure or promptly after disclosure.
18.2 Confidential Information does not include information that:
18.2.1 was in the Receiver’s possession before receipt from the Discloser;
18.2.2 is independently developed by or for the Receiver without reference to the Discloser’s Confidential Information;
18.2.3 is rightfully received by the Receiver from a third party without a duty of confidentiality; or
18.2.4 is or becomes available to the public through no fault of the Receiver.
18.3 The Receiver may use the Discloser’s Confidential Information only in connection with this Agreement and may not disclose any such Confidential Information except as follows:
18.3.1 to employees, agents or contractors of the Receiver who have a need to know and who have been informed of the Receiver’s obligations under this Agreement; and
18.3.2 when disclosure is required under Applicable Law, if the Receiver first gives the Discloser notice of the required disclosure and co-operates with the Discloser, at the Discloser’s expense, in seeking reasonable protective arrangements (however, the Receiver is not required to act in a manner which would result in sanctions or other penalties).
18.4 The Receiver’s obligations under clause 18.3 shall end three (3) years following termination of this Agreement.
18.5 The Receiver shall be primarily liable to the Discloser for the compliance of each person described in clause 18.3.1.
18.6 The Receiver will preserve all proprietary markings on the Discloser’s Confidential Information provided to the Receiver.
18.7 All information exchanged under this Agreement is provided “AS IS”, without warranty of any kind.
18.8 Each Party acknowledges that its breach or threatened breach of this clause 18 may cause the Discloser irreparable harm which would not be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, the Receiver agrees that equitable relief, including a temporary or permanent injunction, is an available remedy in addition to any legal remedies to which the Discloser may be entitled.
19. Force Majeure
19.1 Neither Party shall be liable for any delays or failures to perform its obligations under this Agreement (except the payment of money due by the Client) to the extent such delays or failures are due to fire, flood, the elements, labour disputes or shortages, utility curtailments, power failures, blackouts, explosions, civil disturbances, unavailability of the Internet or other essential services, acts or omissions of third parties (other than the Client’s own clients or accounts for whom the Client shall remain responsible), acts of God, government, bodies vested with governmental or regulatory authority or public utility, or any other cause that is beyond the Party’s reasonable control or that such Party could not have reasonably prevented (a “Force Majeure Event”).
19.2 If either Party is delayed in performing its obligations under this Agreement as a result of a Force Majeure Event, it shall give to the other Party at the earliest possible time after the Force Majeure Event becomes known, written notice of its claim for any extension of time for its performance, together with a description of the Force Majeure Event on which it bases its claim of force majeure.
19.3 If a Force Majeure Event continues for a continuous period of thirty (30) days, either Party may terminate this Agreement without penalty by giving notice in writing to the other Party.
20. No Agency
Neither Party is authorised to act as an agent for, or legal representative of, the other Party, and neither Party shall have the authority to assume or create any obligation on behalf of, in the name of, or binding upon the other Party. No provisions of this Agreement will be considered to constitute a joint venture, partnership or agency between the Parties or to merge the assets, liabilities and undertaking of the Parties.
21. Binding Effect and Agreement
This Agreement is personal to and shall be binding upon and inure only to the benefit of the Parties and their permitted assigns. Nothing in this Agreement is intended to create or confer any right or remedy on any third party. Subject to the sub-contracting rights set out in clause 22, neither Party shall assign or otherwise transfer all or any material part of its rights or duties under, or other interests in, this Agreement or the proceeds of it without the other Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. However, either Party may assign this Agreement without consent to any affiliate, any successor in interest whether by merger, reorganisation or transfer of all or substantially all of its assets. No assignment shall release the Client of its obligations under this Agreement. Any attempt to assign any rights or duties in violation of this provision shall be null and void.
Notwithstanding clause 21, the Supplier may, at its sole discretion, sub-contract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent. In the event of any sub-contracting in accordance with this clause 22, the Supplier shall remain fully responsible and liable to the Client for all acts and omissions of its sub-contractors.
This Agreement may not be modified except by an instrument in writing, executed by the Parties.
Any provision of this Agreement which is or becomes illegal, invalid or unenforceable shall be severed from it and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not effect or impair the remaining provisions of this Agreement, which provisions shall otherwise remain in full force and effect.
25. Representation of Authority
Each Party represents and warrants to the other Party that the entering into of this Agreement and the performance of such Party’s obligations under this Agreement have been duly authorised and that the Agreement is validly and legally binding on such Party and enforceable in accordance with its terms.
26. Further Assurances
Each of the Parties agrees to execute and deliver any and all further agreements, documents or instruments reasonably necessary to give effect to this Agreement and the transactions referred to in it or contemplated by it or reasonably requested by any other Party to evidence its rights under this Agreement.
27.1 Unless otherwise specified in this Agreement, all notices, requests and other communications under this Agreement shall be in writing, addressed to the Parties at the addresses detailed in the Website or by email at the address provided during the Registration or such other email address as may be notified to the other from time to time.
27.2 Notices or requests must be in writing in the English language and must be delivered by a method providing for proof of delivery (including express courier or email if evidence of receipt is obtained). Any notice or request will be deemed to have been given on the date of receipt. Notices and requests must be delivered to the addresses referred to above or such other address designated by written notice to the other Party.
28. Publicity and Use of Name
28.1 The Client shall not:
28.1.1 issue any publication or press release relating to this Agreement or the relationship of the Parties under this Agreement except as may be required by Applicable Law or securities exchange or agreed to in a separate written agreement between the Parties; or
28.1.2 use the name, logo, trade name, service marks, trademarks or printed material of the Supplier in any promotional or advertising material, statement, document, press release or broadcast without the prior written consent of the Supplier, which consent may be granted or withheld at the Supplier’s sole discretion.
28.2 The Client acknowledges and agrees that the Supplier may refer to the provision of the Services by the Supplier by using the name and logo of the Client in any promotional or advertising material, statement, document, press release without the prior written consent of the Client
29. Dispute Resolution
29.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a “Dispute”) then, except as expressly provided in this Agreement, the Parties shall follow the dispute resolution procedure set out in this clause 29.
29.2 Either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars, together with relevant supporting documentation (a “Dispute Notice”).
29.3 On service of a Dispute Notice, each Party shall designate a senior executive who has authority to resolve the Dispute and the senior executives shall consider the Dispute and shall negotiate in good faith to resolve it.
29.4 If the Dispute is not resolved by the senior executives within fourteen (14) calendar days after their appointment, then either Party may take such further steps as it considers appropriate to resolve the Dispute, including the initiation of court proceedings.
29.5 Nothing in this clause 29 shall be construed as prohibiting either Party from applying to a court for interim injunctive relief.
30.1 No waiver by either Party of any provisions of this Agreement shall be binding unless made expressly and confirmed in writing. Any such waiver shall relate only to such matter, non-compliance or breach as it relates to and shall not apply to any subsequent or other matter, non-compliance or breach. The failure of either Party to enforce or insist upon compliance with any of the provisions of this Agreement or the forbearance or waiver of it, in any instance, shall not be construed as a general waiver or relinquishment of any such right.
30.2 Nothing in the Agreement diminishes, restricts or prejudices the rights of either Party to enter into similar agreements with other parties or to otherwise compete with each other. Each Party acknowledges that it remains at all times solely responsible for the success and profits of its own business.
30.3 Nothing in this Agreement will be deemed or construed to create any third-party beneficiary under the Contracts (Rights of Third Parties) Act 1999 or otherwise or any relationship of principal and agent, partnership or joint venture between the Parties. Unless otherwise specifically authorised in writing, no Party shall make any express or implied agreements, guarantees or representations, or incur any debt, in the name of or on behalf of the other.
30.4 The Client is the service provider with respect to its end-users and the Supplier is merely a supplier to the Client with no relationship to the Client’s end-users. The Parties agree and acknowledge that the Client shall assume all credit risk associated with the Client’s end-users and that delays or failures in obtaining such payments from end-users shall not affect or relieve the Client of its responsibility to make payments to the Supplier pursuant to this Agreement.
31. Governing Law
This Agreement is governed by and construed in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the courts of England.