1. Agreement Formation
1.1 The purpose of these Optimity Terms and Conditions is to provide general terms and conditions (“General Terms and Conditions”) and a framework within which Customer may from time to time purchase for its use certain telecommunications and related services from Optimity. Additional terms and conditions that apply to each particular type of Service purchased by Customer are set forth in the Appendices hereto as Service Schedules. Customer may request Services from Optimity by submitting Optimity’s form of Statement of Work in accordance with these Optimity Terms andConditions. All Statements of Work are subject to availability and acceptance by Optimity.
1.2 These Optimity Terms and Conditions supersede all other terms, conditions and warranties which are implied by law or which the Customer maypurport to apply under any purchase order, acknowledgement of delivery or similar document or otherwise; and/or which have been established between Optimity and the Customer by course of dealing, unless Optimity and Customer have mutually negotiated, executed and delivered a separate master services agreement for provision of Service(s) to Customer, in which case the terms and conditions of such master services agreement shall replace these Optimity Terms and Conditions.
1.3 The entire Agreement is formed of these Optimity Terms and Conditions (including both the General Terms and Conditions and Service Schedulesrelevant to the Equipment/Services being provided) and the Statement of Work.
1.4 If there is any express conflict between the General Terms and Conditions, theService Schedule and the Statement of Work, the order of priority (highest first) shall be the Statement of Work, then the Service Schedule, and finally the General Terms and Conditions.
2. Term
2.1 The Agreement (and the Customer’s liability) commences upon the date that Optimity receives an order in respect of a signed Statement of Work from Customer, and shall continue thereafter until such time as Optimity is no longer providing Customer with Service(s) and there are no outstanding Statements of Work, unless earlier terminated in accordance with this Agreement.
2.2 The Term of each Statement of Work shall commence on the date of installation of the service and, continue for the Minimum Term specified therein, and thereafter shall automatically renew for successive periods of 12 months each unless and until terminated in accordance with this Agreement except in the case of wireless fibre network (Wibre) services. Any Wibre Service coming to the end of its Minimum Term or anniversary of commencement on or after 1st January 2021, shall instead be capable of termination by either party on a minimum 3 month’s notice to be given in writing. Statements of Work may not be cancelled or terminated prior to their scheduled expiry date except in accordance with the express provisions of this Agreement.
2.3 The Customer may terminate a Statement of Work by giving ninety days’ Notice in writing to Optimity, such notice to become effective no earlier than the scheduled expiry of the Minimum Term of such Statement of Work or upon each such scheduled expiry date thereafter (as applicable). If the Customer does not elect to deliver such Notice, the term of the relevant Statement of Work will continue to automatically renew as above.
3. Customer Obligations
3.1 The Customer shall be responsible for providing Optimity with all information relevant to the supply of the Equipment and the provision of Services within sufficient time to enable Optimity to duly perform the Agreement.
3.2 The Customer shall ensure that the details set out on the Statement of Work are accurate and fully describe the Customer’s requirements.
3.3 the Customer shall permit or procure permission for Optimity, its agents, employees, representatives, sub-contractors and any other person(s) authorised by Optimity to have reasonable access to the Site, Equipment, Supported Equipment and any other relevant telephone system and other equipment and shall provide such reasonable assistance as Optimity requests.
3.4 Optimity will normally carry out work by appointment and during Normal Working Hours but may request the Customer to (and the Customer shall) provide access at other times.
3.5 The Customer warrants, represents and undertakes that there are adequate health and safety provisions in place at the Site, there is a suitable and safe working environment, and that the Customer holds third party public liability insurance with a level of cover of at least the minimum required by Relevant Law.
3.6 The Customer shall procure all consents, licences, wayleaves and permissions necessary from landlords or other third parties for the carrying out of preparation work, installation of Equipment and for the provision, use and operation of the Equipment, the Supported Equipment and/or Services at the Sites (save to the extent Optimity has agreed in writing to do it) and keep them in effect for the duration of the term of the relevant Statement of Work. The Customer shall provide copies of such consents, licences and permissions to Optimity upon request.
3.7 Where relevant, the Customer shall provide Optimity with the site and building plans (to include full details of all internal cabling runs) of the Sites and provide Optimity with full details of all other services in the vicinity of the proposed works.
3.8 If the new installation or moving Site involves the visit of an engineer to facilitate the new installation, the Customer may be required to pay for the costs incurred by Optimity for the appointment of the engineer together with an administration fee at Optimity’s standard rate in respect of any additional works required to be undertaken by Optimity to complete the transfer of the Services and Equipment.
3.9 The Customer shall comply with Relevant Laws, and ensure that Customer’s End Users so comply, in relation to the use of the Services.
3.10 The Customer shall not, and shall ensure that its End Users shall not, (a) use the Services in any manner that in our reasonable opinion brings Optimity’s name or business into disrepute or which in any way causes damage or disruption to Optimity’s network, the Services, or any other services or systems operated by Optimity or supplied to us by a third party; and (b) use the Services for any purpose other than that for which it was designed or intended or specified in any materials or documentation Optimity provides to Customer.
3.11 The Customer shall not offer (by resale or otherwise) services which are similar to or competitive with those provided by Optimity to any other customer of Optimity (including internet access or other connectivity services)) except as may be expressly approved by Optimity and set forth in the relevant Statement of Work.
3.12 The Customer shall provide a suitable environment for the equipment such that the equipment remains in good order. The Customer shall be liable if the environment is such that it impacts the condition of any Optimity equipment.
4. Fraud /Security
4.1 The Customer shall ensure that user names and passwords used by it and/or its personnel and/or users in connection with the Services are kept secure and confidential always and are only used by authorised users. The Customer shall inform Optimity immediately if the Customer knows or suspects that a user name or password has been disclosed to an unauthorised user, or is being used in an unauthorised way, or if there is any illegal, fraudulent or unauthorised use of the Services or Equipment. The Customer will not change or attempt to change a user name without Optimity’s written consent.
4.2 Optimity reserves the right (at Optimity’s sole discretion):
4.2.1 to suspend access to the Services by one or more user names if at any time Optimity believes that there has been or is likely to be a breach of security (including a breach of the Customer’s obligations under this condition; and
4.2.2 to ask the Customer to (in which case, the Customer shall) change any or all the passwords the Customer’s uses in connection with the Services.
4.3 The Customer will inform Optimity immediately of any subsequent changes to the information the Customer supplies to Optimity in connection with the Agreement.
4.4 The Customer accepts and acknowledges that the Services are not guaranteed to be secure and Optimity does not guarantee the prevention or detection of any unauthorised attempts to access the Services.
4.5 The Customer acknowledges that Optimity has no control of a Customer’s PABX/switch configuration, voice mail security or other feature services enabled by Customer, and Optimity shall not be responsible for any such matters within Customer’s control.
4.6 Optimity shall not be responsible for call charges or other charges resulting from fraudulent and/or unauthorised use of the Equipment and/or Services or any use of the Equipment and/or Services by any unauthorised third parties (who are not employees of Optimity). The Customer shall be responsible for all use of the Services in association with the Customer’s accounts whether or not authorised by the Customer. The Customer agrees to immediately notify Optimity of any unauthorised use of the Customer’s account of which the Customer becomes aware and the Customer agrees to pay all additional charges related to fraudulent and/or unauthorised usage. The Customer is therefore urged to verify with their equipment provider that all necessary steps to combat fraudulent and/or unauthorised use have been taken.
4.7 Any assistance given by Optimity in relation to fraudulent and/or unauthorised use by the Customer or third parties (or the prevention of such use) will be on a reasonable endeavours basis only and no liability can be accepted by Optimity for any loss sustained by the Customer via fraudulent and/or unauthorised means that are beyond Optimity’s reasonable control (save for any fraud and/or authorised use by an employee of Optimity acting in that capacity).
4.8 The Customer shall, at all times, be responsible for preventing unauthorised use of the Equipment and/or Services; (a) maintaining the security of all systems, Services, network elements and Equipment within its (or its employees’, agents’ or contractors’) control; and (b) maintaining (and ensuring that each of its authorised users maintains) at all times, the integrity and secrecy of all passwords, log-in details and access codes used for the purposes of accessing or using the Services or any systems, network elements or Equipment. Optimity shall have no liability for any such matters.
5. Charges
5.1 Any invoices issued by Optimity in respect of the Charges shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
5.2 The Charges will be as detailed on the Statement of Work. The Charges may include One Time Charges, Monthy Recurring Charges and/or Usage Based Charges.
5.3. Unless otherwise specified in the relevant Statement of Work, the One Time Charges assume that the Delivery of the Equipment and (where applicable) Installation Services will be completed in one visit to the Site and accordingly Optimity may at its discretion at any time increase the One Time Charges to take account of any additional costs to Optimity (including but not limited to storage and delivery costs) reasonably incurred in the event that Delivery and/or the Installation Services require more than one visit.
5.4 Usage Based Charges payable shall be calculated by reference to data recorded or logged by Optimity and not by reference to any data recorded or logged by the Customer.
5.5 Optimity shall be entitled to increase the Charges for Services upon the automatic renewal of the term of the relevant Statement of Work, and every subsequent anniversary thereof, by the increase (if any) in the rate of RPI since the commencement of the Service or applicable renewal.
5.6 The Charges will be as stated on the Statement of Work and are exclusive of VAT or any other tax or duty payable which will be added at the prevailing rate at the date of the invoice.
5.7 On transfer of Services to a new supplier, Optimity shall be entitled to charge Customer and third-party migration costs incurred plus a £100 administration fee.
6. Invoicing & Payment
6.1 Unless otherwise stated on the Statement of Work, a deposit equal to at least one half of the One Time Charges is payable by the Customer at the time of the placing of the relevant order, and the balance of such One Time Charges shall be invoiced to Customer upon the Commencement Date of the relevant Service(s).
6.2 Unless otherwise stated on the Statement of Work, the Customer shall be invoiced either monthly in arrears for Usage Based Charges or, in the case of Network or Support Services, quarterly in advance for Monthly Recurring Charges by Optimity, and shall pay any Charges within thirty (30) days of the date of the invoice (unless otherwise expressly agreed with Optimity and set out on the Statement of Work).
6.3 Unless otherwise stated on the Statement of Work, the Customer will pay the Charges to Optimity by direct debit (to such account as Optimity may designate from time to time for that purpose) in advance of the relevant period as set out on the Statement of Work.
6.4 If payment of any sum payable to Optimity is not made on or before the due date, Optimity shall be entitled to charge interest thereafter on such sum at either the rate of four per cent per annum above the current base rate of The Royal Bank of Scotland plc from time to time or, if higher, such rate as Optimity would be entitled to claim under the Late Payment of Commercial Debts (Interest) Act 1998 (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date until the date of payment whether before or after judgment.
6.5 If Optimity is unable, for whatever reason, to recover any sum due under the Customer’s account within thirty (30) days following the due date for payment, Optimity reserves the right to forthwith suspend all or any of the Services.
6.7 Without prejudice to Optimity's other remedies, if the Customer’s account remains outstanding for any reason after the original due date for payment, then the Customer will be charged an administration fee at Optimity’s standard rate for correspondence in connection with the recovery of the overdue amount. Optimity may also charge the Customer an administrative fee where it suspends a Network Service for non- payment; and Optimity reserves the right to refer the outstanding account to a debt collection agency. If Optimity instructs a debt collection agency to collect payment (including interest and late payment charges) on its behalf the Customer must pay Optimity’s costs payable to the agency, who will add the sum to the Customer’s outstanding debt.
6.8 If the Customer cancels an active direct debit instruction following the Effective Date, an additional administration fee may be notified to the Customer by Optimity and will be added to the monthly invoice until the direct debit instruction is reinstated. Optimity also reserves the right to charge the Customer a direct debit cancellation fee at Optimity’s then applicable rate.
6.9 If any sum owed by the Customer to Optimity under the Agreement or any other contract with Optimity is not paid by the due date, Optimity may deduct this sum from any payment or credit due to the Customer under the Agreement or any other contract with Optimity.
6.10 Payment of all sums due to Optimity shall be made without any set-off whatsoever.
6.11 If the Customer intends to dispute any charge on an invoice, the Customer must do so in writing to Optimity within thirty (30) days of the date of the invoice and provide Optimity with all relevant information in support of the dispute. Where the disputed charge(s) amount to:
6.11.1 less than five per cent of the total charges listed on the invoice, the Customer will pay the full amount of the invoice; or
6.11.2 more than five per cent of the total charges listed on the invoice, the Customer must pay the remaining amount of the invoice that is not in dispute.
7. Limitation of Liability
7.1 Unless otherwise expressly stated in this Agreement, Optimity makes no warranty in respect of the supply of Equipment and/or Services and all other terms, conditions and warranties which may otherwise be implied into this Agreement by law or course of dealings between the parties are hereby excluded to the fullest extent legally possible.
7.2 In no circumstances shall Optimity’s liability to the Customer arising under or in connection with this Agreement (whether in contract, tort (including without limitation negligence) misrepresentation, breach of statutory duty or otherwise) in any Agreement Year exceed 110% of the Charges paid in the twelve months prior to the date on which a claim arose.
7.3 Under no circumstances shall Optimity be liable in any event under or in connection with the Agreement and whether in contract, tort (including negligence) misrepresentation, breach of statutory duty or otherwise for any (a) loss of revenue; (b) loss of business; (c) loss of contracts; (d) loss of, damage to, or corruption of data; (e) loss of anticipated savings; (f) loss of profits; or (g) indirect, consequential or special losses; whether or not Optimity knew or ought to have known that such losses or damages might be incurred.
7.4 Except for payment of amounts due under the Agreement, neither party shall be liable to the other party for any breach of contract, tort (including but not limited to negligence) misrepresentation, breach of statutory duty or otherwise caused by any reason outside the reasonable control or responsibility of that party including, in respect of Fixed Network Services supplied by Optimity, the failure of any Carrier to provide network capacity and/or connectivity (or any element thereof) to Optimity on which it was reliant for the purposes of the Agreement, any act of God, terrorist attacks, inclement weather, accidental damage, vandalism, failure or shortage or power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, any act or omission of Government, highways authorities, or other competent authorities, or other event beyond the control of the parties.
7.5 Nothing in this Agreement excludes or restricts either party’s liability for: (a) death or personal injury resulting from that party’s negligence or its employees’ negligence (while acting in the course of their employment); (b) any fraud, fraudulent misrepresentation or fraudulent misstatement; and/or (c) anything for which the parties cannot at law limit or exclude their liability.
7.6 The Customer agrees that any cause of action that it may have against Optimity (including, its (or their) affiliates, directors, officers, agents, consultants and employees) must commence within two (2) years after the cause of action arose, otherwise, the Customer’s cause of action is permanently barred.
8. Indemnity
8.1 Without prejudice to any other rights of Optimity, the Customer shall indemnify, keep indemnified and hold harmless Optimity against all costs (including without limitation legal costs and the cost of enforcement (on a full indemnity basis)) liabilities, claims, damages, direct, indirect or consequential losses (including without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss whether such losses are direct, indirect or consequential losses), expenses and/or judgments whatsoever, which it may suffer or incur, and arising from any: a) breach by the Customer of any warranties, covenants, undertakings and/or representations given under the Agreement; and/or b) injury and/or damage suffered or incurred by or to any of Optimity's (or any of Optimity’s contractor's) employees and/or equipment whilst on the Site (except to the extent of the indemnified party’s negligence or wilful misconduct); and/or c) infringement by the Customer (including, its affiliates, directors, officers, agents, consultants and employees) of any third party’s Intellectual Property Rights.
8.2 In the event that Customer’s use of the Service(s) infringes, or is alleged to infringe, upon a third party’s Intellectual Property Rights, Optimity will indemnify and defend Customer against all costs, liabilities, claims, or damages, on the condition that Customer: (a) notify Optimity immediately of the claim; (b) allow Optimity exclusive control of the defense of the claim; (c) make no admissions of liability or offer or accept any settlement of the claim without Optimity’s prior written consent; and (d) provide Optimity with reasonable cooperation and assistance in the defence of the claim as requested by Optimity. Optimity shall have no obligation to indemnify Customer in the event that the claimed infringement arose or resulted from: (1) Customer’s use of the Service in combination with equipment, software or equipment which was not supplied by Optimity; (2) any modification of the Service(s) or Equipment without Optimity’s written authorisation; (3) use of the Service(s) in a way not permitted by this Agreement. If Customer’s use of the Service(s) leads to a claim of such infringement, or if Optimity reasonably believes that it may lead to one, Optimity shall have the right, at Optimity’s option, to (x) obtain the right to permit Customer to continue to use the Service(s) without infringement; or (y) modify or replace the infringing elements of the Service(s) to eliminate the infringement, so long as the Service(s) are not materially adversely affected thereby.
8.3 The foregoing sub-clause 8.2 sets forth Customer’s exclusive remedies for claims that Customer’s use of the Service(s) infringe a third party’sIntellectual Property Rights.
9. Termination
9.1 Without prejudice to any other right of Optimity to suspend or terminate any or all the Services under these Conditions, Optimity reserves the right to suspend provision of any Services until further notice without liability to the Customer having given the Customer reasonable notice either orally (confirming such notification in writing) or in writing if: (a) the Customer is in breach of a material term of these Optimity Terms and Conditions and/or the Agreement and/or any other contract between the parties from time to time including but not limited to the Customer’s failure to pay the Charges (or any of them) to Optimity by the due date or to comply with the Broadband Acceptable Use Policy; (b) an Emergency occurs and/or Optimity is obliged to comply with an order, instruction or request of the Government, an emergency services organisation or other competent administrative or regulatory authority (including OFCOM); (c) Optimity has reasonable grounds to believe that any of the Services are being used fraudulently, unlawfully or by an unauthorised third party; (d) any licence under which the Customer has the right to run its telecommunications system and/or connect to the Services or use any of the Services is revoked, amended or otherwise ceases to be valid; (e) Optimity or any member of its Group is entitled to suspend and/or terminate provision of any other telecommunications service under the terms of any other agreement with the Customer; or (f) any maintenance or repair is necessary (for the purposes of new provision, updating facilities, general maintenance support or otherwise) or required to the relevant network or related systems or equipment (for the avoidance of doubt, in the event of emergency maintenance or repair, Optimity shall not be required to give any notice).
9.2 The Customer shall not have access to any data stored through the Hosting Services during a suspension. The Customer shall have the opportunity to create a snapshot backup of the data stored through the Hosting Services, and the Customer shall pay Optimity the applicable charges for undertaking such a backup, in accordance with Optimity’s then current charges. Upon the cessation of Hosting Services, Optimity will not retain any of Customer’s data for more than thirty (30) days unless a Statement of Work to provide for such extended retention and costs thereof is agreed.
9.3 Optimity may terminate (in whole or in part) the Agreement forthwith if its right, or the right of the relevant Carrier, to provide any of the Services is withdrawn by any supplier to it or OFCOM pursuant to the General Conditions or otherwise.
9.4 The Agreement may be terminated forthwith by either party by Notice in writing if the other party materially breaches its obligations under this Agreement (including without limitation non-payment of charges due) and in the case of breaches which are capable of remedy such party fails to remedy such breach within fourteen days of written notice by the other party, such notice shall contain details of what the breach is and requesting that the breach is remedied. Optimity shall also be permitted to terminate this Agreement forthwith on notice to the Customer in the event that the Customer is in material breach of any other contract to which these Optimity Terms and Conditions apply (as in force from time to time) and which breach, if capable of remedy, has not been remedied within fourteen days of written notice by Optimity, such notice shall contain details of what the breach is and requesting that the breach is remedied.
9.5 Notwithstanding anything to the contrary expressed or implied in these Optimity Terms and Conditions, either party (without prejudice to its own rights) may terminate the Agreement forthwith in the event that a liquidator (other than for the purpose of solvent amalgamation or reconstruction) trustee in bankruptcy, administrator or receiver is appointed in respect of the whole or part of the assets and/or undertaking of the other party or the other party enters into an arrangement or composition with its creditors, or other circumstances arise which entitle a court or creditor to appoint a receiver or administrator or to make a winding up order (save as in respect of a solvent reconstruction of such relevant party’s group of companies).
9.6 Optimity shall be entitled to terminate the Agreement forthwith in circumstances where it also has a right to suspend the provision of the Services.
9.7 The termination or expiry of the Agreement shall be without prejudice to any rights or liabilities which have accrued prior to such expiry or termination. Any provision of this Agreement which expressly or by implication is intended to survive, shall survive the termination or expiry of the Agreement.
9.8 Any implied right to terminate for convenience that the Customer may have under applicable law is hereby expressly excluded.
9.9 For the avoidance of doubt, in the event of termination of the Agreement for any reason other than repudiatory breach by Optimity, the Customer shall not be entitled to a refund of any pre-paid sums (including, without limit, subscription, rental and/or support charges) whether such sums are attributable to the period before, including or after the date the Agreement terminates.
10. Confidentiality / RIPA
10.1 Optimity and the Customer will keep in confidence any information of the other; whether written or oral, of a confidential nature obtained under or in connection with the Agreement except to the extent any disclosure is required by law, regulation, order of a court or other governmental body having jurisdiction. Subject to the foregoing exception, the Customer and Optimity will not, without the consent of the other, disclose such information to any person other than to its personnel and representatives who require such information in order to provide the Service to Customer, provided that it advise such personnel and representatives of the confidential nature of such information and at all times is responsible for such personnel and representatives’ compliance with the confidentiality obligations set forth herein.
10.2 The restrictions set forth in the foregoing sub-clause 10.1 do not apply to information which: (a) is independently developed by the receiving party; (b) is lawfully received by the receiving party free of any obligation to keep it confidential; or (c) becomes generally available to the public (other than as a result of disclosure by the receiving party or its personnel or representatives in breach of this clause 10.
10.3 Optimity and the Customer shall not use the other’s confidential information for any purpose other than exercising or performing its rights and obligations under this Agreement.
10.4 If the Customer receives a request under the Freedom of Information Act 2000 which encompasses any information provided to the Customer by Optimity in connection with the Agreement the Customer will notify Optimity immediately of the request and give Optimity at least ten Business Days to make representations before releasing the requested information (save to extent otherwise required by law).
11. Data Protection
11.1 Optimity and Customer each shall comply with their respective obligations under applicable Data Protection Laws in relation to the Agreement.
11.2 Optimity may collect, use and Process Personal Data in connection with: (a) its management and fulfilment of orders for Service(s); (b) delivery and activation of the Service(s); (c) management and resolution of faults with the Service(s); (d) the credit approval of Customer, and the preparation and management of invoicing for the Service(s); administration of the Agreement and resolution of disputes relating to the Agreement; (e) responding to questions relating to the Service(s); and (f) complying with Optimity’s legal obligations under Relevant Laws.
11.3 Optimity may be required to share this Personal Data with Optimity’s Affiliates and other third parties in order to carry out its obligations under the Agreement, and Customer authorises such transfer to Sub-processors in other countries outside the UK and/or the European Economic Area. Optimity shall comply with applicable Data Protection Laws in its sharing, transfer and use of such Personal Data.
11.4 Optimity may communicate with Customer and its personnel in providing information about the Service which may include marketing materials. Optimity will provide Customer with a means to opt out of receiving such marketing communications.
11.5 Customer shall obtain and maintain all required notifications, consents and permissions to enable the lawful transfer of Personal Data to Optimity for the term and purposes of the Agreement.
11.6 Customer shall disclose to Optimity only such Personal Data as Optimity needs in order to perform the Service(s).
11.7 Where Optimity Processes Personal Data for which Customer is the sole Data Controller, Optimity shall: (a) Process such Personal Data in accordance with Customer’s instructions and as necessary to perform Optimity’s obligations under the Agreement; (b) maintain appropriate organisational and technical measures to protect such Personal Data from accidental loss, destruction, disclosure or access; and (c) not disclose such Personal Data to third parties unless permitted by the Agreement, required in order to install, deliver and/or perform the Service, or required by Relevant Laws.
11.8 At Customer’s election, Optimity shall delete or return all Customer Personal Data and any copies of that data to Customer at the end of the provision of the Services (unless required or permitted by applicable Data Protection Laws to store the Personal Data).
11.9 The Parties shall provide each other with notice of any security breach affecting either Party’s Personal Data under this Agreement as soon as possible upon becoming aware of the same. The Parties shall provide each other with reasonable assistance and Information in relation to any such security breach.
12. Intellectual Property Rights
12.1 Any Intellectual Property Rights supplied by Optimity to the Customer, or specifically produced by Optimity for the Customer, in connection with this Agreement, shall be the exclusive property of Optimity and to the extent that any such rights vest in the Customer shall be deemed to be and shall be assigned to Optimity by the Customer. Any Intellectual Property Rights belonging to, licensed to or supplied by Optimity to the Customer shall be used by the Customer as expressly permitted under the terms of this Agreement and in accordance with the instructions of Optimity.
12.2 Any licence provided by Optimity to the Customer in relation to the Intellectual Property Rights shall be personal to the Customer, non-exclusive, revocable and limited to the United Kingdom and in the absence of earlier revocation shall terminate upon termination of this Agreement.
12.3 By using the Services (in particular, but without limitation, the Hosting Services) the Customer shall provide Optimity with information and data, title to which shall remain vested in the Customer (or its licensors). The Customer warrants, represents and undertakes that it has all necessary rights and licences to use and transmit over the internet to the Customer all information and data which will be subject to the Hosting Services and hereby grants Optimity a non-exclusive licence to use such information and data for the purposes of performing the Services.
13. General
13.1 No forbearance or indulgence shown or granted by Optimity to the Customer whether in respect of these General Terms and Conditions and/or any Service Schedule or otherwise shall in any way affect or prejudice the rights of Optimity against the Customer or be regarded as a waiver of any of these General Terms and Conditions and/or any Service Schedule.
13.2 The Agreement (and any non-contractual matters arising out of or in connection with it) shall be governed by and construed in all respects in accordance with English law and the Customer hereby submits for all purposes of and in connection with the Agreement to the exclusive jurisdiction of the English Courts (including in relation to non-contractual disputes).
13.3 The Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else and no third party shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
13.4 Any notice, invoice or other document which may be given by either party under the Agreement shall be in writing (except as provided otherwise) sent for the attention of the relevant person, and to the address given on the Statement of Work (or such other address or person as the relevant party may notify to the other party) and shall be delivered personally, or sent by pre-paid, first-class post or recorded delivery. E-mail shall not be a valid method of serving notices under this Agreement.
13.5 The words “include” or “including” shall be read as including the words “without limitation” following them in each instance in the Agreement.
13.6 The Customer shall not, without the prior written consent of Optimity, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
13.7 Optimity may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the consent of the Customer. However, the Customer shall, if Optimity requires, execute such deeds and/or documents as may be necessary or required by Optimity to give effect to any such dealing in such rights and/or obligations.
13.8 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
13.9 The Customer shall not, without the prior written consent of Optimity, at any time from the date of the Agreement to the expiry of six months after the termination or expiry of the Agreement, actively solicit or entice away from Optimity, or actively employ or attempt to employ (save where the relevant person has responded to a general advertisement by the Customer for the relevant job vacancy), any person who is, or has been, engaged as an employee or sub-contractor of Optimity in the provision of the Services to the Customer. Any consent given by Optimity shall be subject to the Customer paying to Optimity a sum equivalent to twenty per cent of the then current annual remuneration of Optimity’s employee or sub-contractor or, if higher, twenty per cent of the annual remuneration to be paid by the Customer to that employee or sub-contractor.
13.10 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
13.11 Save where the context otherwise requires, in the Agreement a reference to a "person" shall include a company, body corporate, unincorporated association, state, governmental or statutory body or authority, and/or a partnership, as well as a natural person (as appropriate).
13.12 Nothing in the Agreement is to be construed as establishing or implying any partnership or joint venture between the parties, or as appointing any party as the agent or employee of any other party.
13.13 The Agreement constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter. Neither party has entered into the Agreement in reliance upon and nor shall they have any remedy in respect of, any representation or statement (whether made by the other party or any other person) which is not expressly set out in the Agreement.
14. Changes to the Agreement
14.1 Optimity may change the Optimity Terms and Conditions at any time and will publish on Optimity’s website any change at least thirty (30) days before the change is to take effect for changes that may be of material detriment to the Customer;
14.2 If the Customer wishes to object to any proposed change which is of material detriment to the Customer, the Customer must notify Optimity in writing within thirty (30) days of publication of the proposed change, otherwise the Customer will be deemed to have accepted the proposed change. For the avoidance of doubt, the service by Optimity of any notice shall not constitute either acceptance of or an admission by Optimity that any proposed change is of material detriment to the Customer, nor shall the service of notice by the Customer under this condition constitute or be deemed to constitute evidence that the relevant change is of material detriment to the Customer.
14.3 Optimity may, if requested by the Customer, provide additional services to be included within the Services under such additional terms and conditions as may be notified by Optimity from time to time.
14.4 No variation of the terms of the Agreement however notified (save with regard to the manuscript details on the Statement of Work including, where initialled by both parties, manuscript amendments to the type face, as such details may be inputted by authorised staff of Optimity) will be accepted by Optimity unless authorised by notice in writing by a Director of Optimity.