1. Definitions
1.1. In these conditions (unless the context otherwise requires): “Contract” means the contract between you and us for the provision of the Services and/or Equipment incorporating these Terms and Conditions; “Equipment” means the equipment specified in the Order; “Minimum Contract Period” (MCP) means the term for which the Services will be provided as stated in the Order, or, if no term is specified, a period of 12 months from the Service Commencement Date. “Order” the Customer’s order for Services and/or Equipment as set out in an LM Global Telecoms order form, the Customer’s online order form, the Customer’s written acceptance of a quotation by LM Global Telecoms or overleaf, as the case may be; “Recurring Charges” includes line and data circuit rentals, service fees, etc. which are charged monthly and are specified in the Order; “Services” means the telecommunications service(s), including the provision of mobile services and software, and related installation services (including but not limited to telephony connection services) specified in the Order; “Service Commencement Date” (SCD) means the date(s) set out in the Order on which the Services will commence, or where no date is specified means the earlier of: (a) the date the Service is made available for use by the Customer; or (ii) the date the Customer first uses a Service; “Support Option” means the LM Global Telecoms provided support services as specified in the Order;
2. Contract Formation
2.1. The Order constitutes an offer by the Customer to purchase Services and/or Equipment in accordance with these conditions.
2.2. The Order shall only be deemed to be accepted when LM Global Telecoms issues written acceptance of the Order at which point and on which date Contract shall come into existence.
2.3. The Services and the Equipment will be provided by LM Global Telecoms to the Customer for the duration of the MCP.
2.4. It is the responsibility of the Customer to terminate its existing agreement with its current supplier (if any), and to pay any resulting termination fees, unless otherwise agreed in writing with LM Global Telecoms.
2.5. The Contract constitutes the whole agreement and understanding of the parties as to the subject matter hereof and supersedes all other terms and conditions. There are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in the Contract unless expressly varied in writing and signed by a director of each party.
2.6. Where the Customer requests additional Services to be provided not included in the Contract, these will be provided under separate agreement as agreed by the parties.
2.7. LM Global Telecoms may vary the terms of the Contract at any time by giving 30 day’s written notice to the Customer in order to:
2.7.1. comply with any legal or regulatory obligation; or
2.7.2. maintain the integrity or security of the Services; or
2.7.3. introduce new Services features; or
2.7.4. introduce improved levels of service for the Services.
2.8. Except for the reasons for varying the Contract under clause 2.7, LM Global Telecoms may vary the terms of the Contract at any time after the MCP by giving 30 day’s written notice to the Customer. Upon receipt of a notice to vary the terms of the Contract, if the Customer disagrees with the variation(s), the Customer may give 30 days’ written notice to LM Global Telecoms to terminate the Contract.
2.9. If any term of the Contract is or becomes unenforceable or invalid, such invalidity or unenforceability shall not affect the other terms of the Contract which shall remain in full force and effect. If any term of the Contract is or becomes invalid or unenforceable but would be valid or enforceable if some part of it were deleted or modified by the parties, the term in question shall apply with such modification as may be necessary to make it valid and enforceable. The parties shall act reasonably and in good faith to agree any such modification.
2.10. Nothing in the Contract shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties. A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
2.11. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (Including non-contractual disputes or claims) shall be governed by, construed and interpreted in
accordance with English law under the exclusive jurisdiction of the English courts.
2.12. Where an inclusive call bundle is offered covering local, national, mobile and/or other call destinations, LM Global Telecoms reserve the right to apply a fair use policy. Call usage patterns that differ significantly from our standard average customer profile may see the call bundle removed, or amended.
3. Finance, Credit & Payment
3.1. The Customer agrees to pay for the Services by direct debit mandate in full within 14 days of the date of invoice issued by LM Global Telecoms. If LM Global Telecoms agrees to accept payment by cheque, LM Global Telecoms reserves the right to apply a reasonable monthly handling charge to cover its administration costs.
3.2. LM Global Telecoms reserves the right to terminate the Services without notice upon rejection of any direct debit mandate or payment or if the Customer’s bank (or its agent or affiliate) seeks return of payments previously made to LM Global Telecoms which LM Global Telecoms in good faith believes the Customer is liable for.
3.3. The Customer shall pay the charges for the Services as set out in the Order.
3.4. LM Global Telecoms shall be entitled to decrease charges at any time and any decrease will be reflected in the next issued invoice.
3.5 Unless otherwise agreed, LMG shall have the right to increase the Charges billed directly by LMG for all Services provided as of the 1st April each year by an amount no more than the increase (if any) in the Rate of RPI announced in February of that year, plus 3.9% Where the Customer is billed directly by a 3rd Party Partner, any such terms and increases will be documented within the respective Partner contract.
3.6 Where LMG is aware that the Customer is classed as a Microenterprise or Small Enterprise Customer (defined as being less than 10 members of staff), the above Clause will not be applied. LMG shall still have the right to increase the Charges billed directly by LMG for all Services provided as of the 1st April each year, however, in line with Ofcom best practice guidelines, any anticipated increases will be documented in £’s and pence in the costs summary of the LMG Agreement.
3.7. Without prejudice to clauses 3.5 & 3.6, LM Global Telecoms may increase charges at any time upon provision to the Customer of 30 days’ written notice. Such notice may be contained in billing information or in invoices provided to the Customer.
3.8. The Customer may terminate the Contract within 30 days of being notified of any increase in the charges notified pursuant to clause 3.6 by providing 30 days’ written notice to LM Global Telecoms. If the Customer terminates the Contract under this clause 3.6 it will not be held to the MCP or be liable for termination charges.
3.9. Time shall be of the essence for payment for all charges due under the Contract.
3.10. Without prejudice to any other rights LM Global Telecoms may have, LM Global Telecoms is entitled to claim interest on overdue invoices under the Late Payment of Commercial Debts (Interest) Act 1998.
3.11. If it is necessary for LM Global Telecoms to send correspondence to the Customer in order to obtain payment for overdue accounts, LM Global Telecoms reserves the right to make a charge of £20 per letter sent to the Customer.
3.12. LM Global Telecoms reserves the right to refer any outstanding account to a debt collection agency. If a debt collection agency is instructed to collect payment (including interest and late payment charges) on LM Global Telecom’s behalf, the Customer must pay LM Global Telecom’s costs payable to the agency, who will add the sum to the Customer’s outstanding account debt.
3.13. All sums referred to in the Contract are exclusive of value added tax
and any other taxes of similar nature which may from time to time be
introduced which shall (if applicable) be charged in accordance with the relevant regulations in force at the time of making the taxable supply and must be paid by the Customer.
3.14. LM Global Telecoms may, at its sole discretion and before providing any Services, carry out credit checks or complete its Credit Vetting Procedure with respect to the Customer.
3.15. It is agreed that where LM Global Telecoms approaches a finance or lease provider to arrange finance for Equipment then LM Global Telecoms acts as an agent for the Customer and not for the finance or lease provider.
3.16. If indemnities are required by a relevant finance provider, failure to provide such indemnities shall constitute a breach of the Contract by the Customer and shall entitle LM Global Telecoms to terminate the Contract.
3.17. After delivery and installation (where applicable) of the Equipment is completed, any failure by the Customer to complete any relevant finance agreement documentation shall render the Customer liable to pay to LM Global Telecoms all charges due under the Contract within 7 days of the date of invoice by LM Global Telecoms.
4. Supply of Equipment, Numbers & Installation Services
4.1 Delivery and/or installation of any Equipment shall occur after the date on which LM Global Telecoms receives all instructions and information required from the customer and where possible on the estimated date for delivery specified in the order. LM Global Telecoms does not guarantee that delivery or installation will take place on any specified date and time is not of essence with respect to any such delivery date.
4.2 If the contract provides for delivery of Equipment by instalments, any delay in the delivery of instalment shall not entitle the customer to treat the contract as in default, to reject any other instalment or to terminate the Contract.
4.3 From the moment of delivery, the Customer shall be responsible for insuring the Equipment to protect from risk of loss or damage, irrespective of whether title to the Equipment has passed to the Customer or payment or part payment has been made by the Customer. Notwithstanding delivery and the passing of risk, the legal and beneficial interest in the Equipment shall not pass to the Customer until LM Global Telecoms and/or the applicable finance provider has received cleared payment in full of all sums due for the Equipment and installation Services (where applicable). Nothing in this clause shall prejudice any proprietary rights of LM Global Telecoms, any of its licensors or any other rightful entities. The Customer shall prepare the site(s) identified in the Order where the Equipment will be installed (at its own cost) in accordance with LM Global Telecom’s instructions. The Customer shall permit or procure (providing copies if requested) the relevant licenses or permissions from landlords or other third parties for LM Global Telecoms agents, employees and other authorised persons to have access to the Customer’s sites in order to install the Equipment and shall provide such reasonable assistance and information as requested from time to time to facilitate the installation Services. Access will usually be arranged by appointment.
4.6. The Customer warrants, represents and undertakes that there are adequate health and safety provisions in place at the sites, there is a suitable and safe working environment, and that they hold legally sufficient third party public liability insurance.
4.7. The Customer must identify asbestos contaminated areas at the sites prior to commencement of works. If LM Global Telecoms discovers asbestos contaminated areas at a site then LM Global Telecoms will cease work until the asbestos is removed (at the arrangement and cost of the Customer) or the area is made safe for the works to resume. LM Global Telecoms shall have no liability for any delay which arises as a result of asbestos contamination.
4.8. The Customer shall ensure that steps have been taken to configure any Equipment (whether supplied by LM Global Telecoms or not) so as to prevent such Equipment being used in the commission of criminal offences including the making of fraudulent, unauthorised or bad faith calls.
4.9. The Customer acknowledges that LM Global Telecoms shall have no liability for: (i) any inability to use the Services is due to incompatibility between the Customer’s own equipment/systems and the Equipment and/or Services; or (ii) any loss or damage arising directly or indirectly from the use of the Customer’s own equipment/systems. The provisions in this clause apply irrespective of whether or not LM Global Telecoms has recommended the use and/or performance of any of the Customer’s own equipment.
4.10. If a Support Option has been purchased by the Customer, LM Global Telecoms will endeavour to replace or repair defective Equipment or re-perform any installation Services (only where LM Global Telecoms has supplied installation Services), without cost to the Customer, for the duration of the Support Option term.
4.11. If a Support Option has not been purchased, LM Global Telecoms will (at its sole and absolute discretion) either arrange repair or replacement of any defective Equipment or arrange to make good any defect which shall be proved to our satisfaction to be the result of faulty design, materials or manufacturing within a reasonable period of time from the date of
installation or delivery of the Equipment.
4.12. The Customer agrees and accepts that the provision of the Services is not guaranteed to be fault free, and that optimal Services provision will only be achievable by using the Equipment provided (or otherwise recommended) by LM Global Telecoms in the manner recommended by LM Global Telecoms
4.13. LM Global Telecoms shall not be liable for defects which arise from neglect, misuse, or faulty maintenance of the Equipment by the Customer or its contractors, or from alterations or improper repairs carried out without the prior written consent of LM Global Telecoms or arising from normal wear and tear.
4.14. Where LM Global Telecoms replaces defective Equipment, it shall be entitled to supply serviceable reconditioned items in substitution. LM Global Telecoms reserves the right to charge on a quantum meruit basis for the cost of repairs and/or call-outs if it considers that a defect has resulted from misuse or unauthorised repair or alteration of the Equipment by the Customer or any third party, or from normal wear and tear.
4.15. OFCOM and/or the relevant carrier each have the power to withdraw allocation of telephone numbers and such no number can be guaranteed by LM Global Telecoms.
4.16. Where the Customer has requested that its existing telephone numbers or other telecommunications services be ported or migrated from an alternative network, the Customer shall be responsible for obtaining a PAC (Port Authorisation Code) and/or MAC (Migration Authorisation Code).
4.17. The Customer acknowledges that if the Services and Equipment are fully operational, 999/111/101/112 public emergency calls can be accessed. However, if there is a Services interruption or power failure for any reason, such outage or failure may prevent access to these numbers. The Customer therefore accepts that it should always maintain alternative means of accessing emergency services.
5. Confidentiality
5.1. A party in receipt of confidential information disclosed by the other party shall keep it in confidence, whether written or oral and will not disclose such information to any third party without the prior written consent of the disclosing party, except to the extent that any disclosure is required by law.
5.2. Neither party will, without the consent of the other, disclose confidential information to any person other than its employees, contractors or professional advisers who shall require the information for the performance of obligations under the Contract.
5.3. Information shall not be treated as confidential if it is:
5.3.1. lawfully in the public domain; or
5.3.2. lawfully in the possession of the Customer or LM Global Telecoms
before disclosure from the other has taken place without any duty of
confidentiality attaching to it;
5.3.3. obtained from a third party who is entitled to disclose it without any duty of confidentiality attaching to it; or
5.3.4. replicated independently by someone without access or knowledge of the information.
5.4. All parties shall adopt, retain and keep updated adequate procedures and security measures which legally and reasonably protect the confidential information of the other party from inadvertent disclosure or release to unauthorized persons.
5.5. If the Customer receives a request to disclose any of LM Global Telecom’s confidential information under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction the Customer will notify LM Global Telecoms immediately of the request and give LM Global Telecoms at least 10 business days to make representations before releasing the requested information (except where required by law).
6. Intellectual Property Rights
6.1. Both LM Global Telecoms and the Customer shall retain all right, title
and ownership in and to any intellectual property rights (IPR) which it owns prior to the SCD and the other party shall have no rights to use such IPR whatsoever other than as expressly provided for in the Contract.
6.2. The Customer agrees that LM Global Telecoms may use and display the trademarks (or similar), trade names, brands and logos of the Customer solely in respect of advertising the relationship between the parties and the provision to the Customer of services.
6.3. The Customer shall not use or display the trademarks (or similar), trade names, brands and logos of LM Global Telecoms without obtaining the prior written consent of LM Global Telecoms (not to be unreasonably withheld or
delayed).
6.4. If LM Global Telecoms or the Customer becomes aware of an infringement or threatened infringement of IPR belonging to the other party, then that party shall promptly notify the other party of all relevant details relating to the infringement or threatened infringement.
6.5. Each party may take such steps and proceedings as it considers necessary or desirable to protect its IPR and the other party must render all reasonable assistance in this regard, at the expense of the party protecting its IPR.
6.6. If a party licenses IPR to the other party for the purposes of the Contract, and that IPR infringes the rights of a third party, then the licensing party may:
6.6.1. at its own expense take such steps as are necessary to cure the infringement; or
6.6.2. provide alternative technology as soon as reasonably practicable; or
6.6.3. if (in the licensing party’s opinion) neither of the foregoing options is reasonable, having regard to the likely costs and other relevant matters, terminate the Contract without further liability of either party.
7. Data Privacy
7.1. Each party agrees to comply with the Data Protection Act 2018 and other applicable data protection laws and regulations when dealing with information given to it by the other party under this Contract.
7.2. The Customer acknowledges that LM Global Telecoms may put its name and other details obtained from the Customer into a secure computerised directory for internal use and for the purposes of providing the Services.
7.3. LM Global Telecoms will process personal data in accordance with its Privacy Policy and Privacy Notice, both of which are available on www.lmglobaltelecoms.co.uk and available upon request from LM Global Telecoms Data Protection Officer at gdpr@lmglobaltelecoms.co.uk
8. Liability & Limitation
8.1. Nothing in the Contract shall impose any liability upon LM Global Telecoms in respect of non-performance of the Services where such non-performance is as a consequence, whether directly or indirectly, of the Customer’s or third parties’ acts, omissions, negligence or default.
8.2. The Customer acknowledges that LM Global Telecoms is entirely dependent on its suppliers in relation to the quality of the Services. LM Global Telecoms may not be held liable in the event of Services failure arising from any network, connection infrastructure or equipment defect.
8.3. The Customer shall indemnify (and keep indemnified) LM Global Telecoms from all losses, fines, damages, claims, costs and expenses incurred by LM Global Telecoms arising from or in connection with the Customer’s use of the Services or as a result of Customer’s breach of any
provision in the Contract.
8.4. If the Services fail and the Customer’s calls are diverted to another carrier, LM Global Telecoms shall not be obliged to pay any charges incurred by the Customer with that carrier.
8.5. LM Global Telecoms shall not be responsible for any charges relating to the Services as a result of fraudulent activity either by the Customer or a third party. The Customer agrees to pay for all charges arising from such fraudulent activity. 8.6. Except as referred to in clause 8.8 and subject to clause 8.7, the aggregate liability of LM Global Telecoms in respect of all claims arising under or in connection with this Contract (whether in contract, tort or otherwise) in any calendar year shall be limited so that it shall in no circumstance exceed the higher of either: (a) £10,000; or (b) the total fees payable by the Customer in the calendar year in which the claim arose. 8.7. LM Global Telecoms shall not in any circumstance (other than those referred to in clause 8.8) be liable for any loss of profits (actual or anticipated), loss of revenue, loss of business, loss of anticipated savings, loss of goodwill, loss or corruption of or damage to data or for any indirect, incidental or consequential loss or damage. 8.8. Nothing in this Contract shall exclude or limit LM Global Telecoms liability for: (a) death or personal injury resulting from negligence; (b) any claim based on fraud or other criminal act; or (c) any liability which cannot be excluded or limited under applicable law. 8.9. Neither LM Global Telecoms nor the Customer shall be liable to the other for any loss or damage which may be suffered by the other due to any event beyond its reasonable control, including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire strike, lock out, health related lock-down or pandemic, trade dispute or labour disturbances, any act or omission of
Government, highway authorities, other public telecommunication operators or other competent authority, or production or supply services of third parties.
9. End of Contract, Termination & Suspension
9.1. The Contract will remain in force and the Services will be provided for the duration of the MCP. Upon expiration of the MCP and subject to clause 9.4, the Contract will automatically renew on the same terms save that the Services will then be provided on a month-to-month basis (each such monthly period being a “Renewal Period”).
9.2. During the MCP and subject to clause 9.6, the Contract may be terminated by the Customer: (i) by giving LM Global Telecoms not less than 90 days’ prior written notice to expire on or before the expiration of the MCP for Services that consist of leased line/dedicated internet access circuits and any other dedicated solutions; or (ii) by giving LM Global Telecoms not less than 30 days’ prior written notice to expire on or before the MCP for all other Services.
9.3. During any Renewal Period, the Contract may be terminated by the Customer by giving LM Global Telecoms not less than 30 days’ prior written notice with the date of termination being the last day of the Renewal Period falling on or after the expiration of the 30-day notice period.
9.4. If the Contract renews pursuant to clause 9.1: (a) LM Global Telecoms
reserves the right to make a monthly out of contract charge of up to £1000 or 15% (whichever is the lower) of the value of the monthly rentals or charges received by LM Global Telecoms in the preceding twelve months from the Customer in addition to the ongoing charges payable for the Services; and/or (b) LM Global Telecoms reserves the right to increase the charges on 30 days’ notice to the Customer.
9.5. If the Customer terminates the Contract or the Contract is otherwise
terminated for any reason, other than those laid out in section 3, prior to
the expiration of the MCP the Customer will remain liable for the charges due in respect of the Services up to the date of termination plus an amount equal to: (a) 100% of the total amount of recurring charges otherwise payable during the remainder of the MCP; and (b) 50% of the Customer’s average monthly call spend prior to the date of termination for each month from the date of termination up to the expiration of the MCP.
9.6. Any notice given by either party under the Contract shall be deemed to have been duly given if delivered by hand or first class recorded delivery (in both cases with signed proof of delivery) to the recipient’s address as stated in the Order or such alternate address as may be notified pursuant to the provisions in this clause.
9.7. The Customer shall be deemed to have terminated the Contract if during the term of the Contract it switches all or part of the call traffic or line rental provision or Services from LM Global Telecoms to another telecom provider. If termination pursuant to this clause occurs during the MCP then the Customer will remain liable for charges to LM Global Telecoms in accordance with clause 9.5.
9.8. LM Global Telecoms reserves the right to invoice the Customer for
9.8.1. VoIP numbers which are ported away up to the value of £15 per direct dial in (“DDL”) number
9.9. If LM Global Telecoms did not charge the Customer for installation Services, LM Global Telecoms reserves the right to subsequently invoice the Customer for such installation Services charges if the Contract is terminated for any reason prior to the expiration of the MCP, other than those laid out in section 3.
9.10. Should the customer wish to cancel their agreement prior to the service commencement date and equipment has been ordered for them following a site survey, they will be subject to a re-stocking fee equating to 25% of the invoice value or FULL price of any bespoke equipment.
9.11. Any technology funds agreed at point of connection will remain as a virtual fund and will be held by LM Global Telecoms on the understanding that this fund is expressly in place to allow the Customer to order equipment only from LM Global Telecoms. The purpose of the fund is to replace faulty hardware during the term of the Contract. Any proportion of the fund not drawn down or left in the virtual fund at the end of the term of the Contract will be reset to a zero value. No exceptions will apply, and no other alternatives of cash or credit will be offered.
9.12. All subsidiaries, technology funds, credits, free-of-charge hardware, and any other benefits issued by LM Global Telecoms are provided solely for the purpose of supplying associated hardware and services throughout the Minimum Contract Period (“MCP”). Hardware and Services provided through these benefits remain the property of LM Global Telecoms for the
duration of the MCP. If the Customer:
(a) terminates the Contract before the expiration of the MCP,
(b) enters into any formal liquidation, insolvency procedure, or otherwise ceases to trade,
(c) fails to pay any invoices related to the MCP, or
(d) ceases to engage LM Global Telecoms Ltd in respect of managing supplied services for any reason, then all technology funds, credits, mobile devices, and any hardware subsidised or supplied under the Contract will remain the property of LM Global Telecoms Ltd. LM Global Telecoms Ltd retains full discretion to reclaim, repurpose, or otherwise use such assets as it sees fit.
9.13. If LM Global Telecoms is unable to provide any specific Service for any reason, then this shall not entitle the Customer to terminate the provision of any of the other Services set out in an Order.
9.14. LM Global Telecoms may terminate the Contract or suspend the Services with immediate effect (without compensation) by giving the Customer notice in writing, if:
9.14.1. the Customer is in remedial breach of any provision of the Contract and the Customer fails to remedy that breach within 14 days of a written notice specifying the breach;
9.14.2. the Customer is subject to any form of bankruptcy or insolvency proceedings, including, taking steps towards bankruptcy or insolvency, making an arrangement with creditors or any seizure of its assets;
9.14.3. the Customer fails to make any payment when it becomes due;
9.14.4. LM Global Telecoms is obliged to comply with an order, instruction or request of the UK Government, an emergency services organisation or other competent authority;
9.14.5. abusive use of the Services or abusive behaviours (or conduct) by the Customer or Customer representatives is observed;
9.14.6. the Customer is found to be causing, aiding, encouraging or facilitating a domain or URL to point or direct traffic to any material that
violates any applicable law or regulation; or
9.14.7. the Customer is found to be using or facilitating the use of the Services to (including by pointing to websites or locations that) create, transmit, distribute or store materials that include tools designed for compromising security (including but not limited to password guessing programs, cracking tools or network probing tools) data protection or anti-terrorism laws, impairing the privacy of communication or knowingly contain viruses.
9.15. Where LM Global Telecoms suspends the Services as a consequence of the Customer’s breach, the Customer shall reimburse LM Global Telecoms for all reasonable costs and expenses incurred implementing such suspension and/or re-provisioning the Services if the suspension is lifted.
9.16. If LM Global Telecoms exercises its right to suspend the Services for any reason (including failure to correct any abuse within 30 days of notice) this shall not restrict any right of LM Global Telecoms to terminate the Contract.
10. Dispute Resolution
10.1. The parties agree to use reasonable endeavours to resolve any dispute arising out of or in connection with the Contract between themselves before seeking to resolve the dispute by any other means.
10.2. Any disputes between the parties arising out of or in connection with the Contract shall in the first instance be considered by senior representatives of both parties. If resolution is not achieved by the parties’ senior representatives, the parties agree to seek to resolve such dispute through an agreed mediation procedure. If the dispute remains unresolved following mediation, either party shall have the right to refer such dispute for resolution via the courts.
10.3. The Customer may refer the matter to The Communications Ombudsman, via the website www.ombudsman-services.org or by telephone on 0330 440 1614; and Ofcom, the communications regulator, via the website www.ofcom.org.uk, or by telephone on 020 7981 3040 or 0300 123 3333.
4. LM Global Technology Limited Terms and
Conditions of Business
The Customer’s attention is particularly drawn to the provisions of clause 11.
1. Interpretation
1.1. The definitions and rules of interpretation in this condition apply in these terms and conditions
“Business Day” a day other than Saturday, Sunday or public holiday in England, when banks in London are open for business. “Charges” means the One-off Charges and the Recurring Charges.
“Commencement Date” has the meaning given in clause 2.2. “Conditions” these terms and conditions as amended from time to time in accordance with clause 13.1. “Contract” the contract between LMG and the Customer for the supply of Equipment, Services, or Third Party Software in accordance with these Conditions. “Customer” the person, firm or company who purchases the Equipment, Services, or Software Licences from LMG as named in the Statement of Work.
“Customer Site” any premises occupied by the Customer at which it receives the Managed Services.
“Customer Site Equipment” any equipment located or to be located on a Customer Site but controlled or to be controlled by LMG as part of the Managed Services.
“Data Protection Legislation” means: (i) to the extent the UK GDPR (as defined in the Data Protection Act 2018) applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (ii) to the extent the General Data Protection Regulation ((EU) 2016/679) applies (EU GDPR), the law of the European Union or any member state of the European Union to which LMG is subject, which relates to the protection of personal data.
“Data Controller”, “Data Processor”, “Data Subject” and “Personal Data” shall have the meaning as set out in the Data Protection Legislation. “Delivery Location” has the meaning set out in clause 3.4.
“Equipment” the hardware, IT equipment as set out in the Statement of Work. “Force Majeure Event” has the meaning given in clause 13.2.
“Good Industry Practice” the degree of skill and care which it is reasonable to expect of a provider of managed services similar to the Managed Services.
“LMG” means LMG Global Technology Limited a company registered in England and Wales with company number 14685152 and whose registered office is at Unit 6 Freight Village, Woolsington, Newcastle Upon Tyne, NE13 8BH;
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trademarks, 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, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation 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;
“Minimum Contract Period” or “MCP” the term for which the
Services will be provided as stated in the Statement of Work, or, if
no term is specified, a period of 36 months from the Service
Commencement Date;
“One off Charges” means any one-off charges for Services, as set
out in the Statement of Work;
“Project Plan” the detailed plan as set out or referred to in the
Statement of Work describing the Services and setting out the
estimated timetable (including milestones) and responsibilities of
each of the parties for, or in connection with, the provision of the
Services by LMG in accordance with the Contract;
“Recurring Charges” includes line and data circuit rentals, service
fees, etc. which are charged monthly and are specified in the
Order;
“Regulations” means the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (SI 2006/246).
“Services” means the services to be provided to the Customer as
set out in the Statement of Work, which may include managed
services and/or professional services;
“Service Commencement Date” or “SCD” means the date(s) set
out in the Statement of Work on which the Services will
commence, or where no date is specified means the date set out
in the “go live certificate” as issued by LMG to the Customer;
“Service Level Agreements” means the service level agreement(s)
for the Managed Services as set out in or referenced in the
Statement of Work.
“Third Party Software” the licences to use third party software to
be provided to the Customer, as set out in or referred to in the
Statement of Work.
“Statement of Work” means the description or specification for
the Equipment, Services or Third Party Software signed by each of
LMG and the Customer, including any Service Level Agreements.
“Viruses” any thing or device (including any software, code, file or
programme) which may prevent, impair or otherwise adversely
affect the operation of any computer software, hardware or
network, any telecommunications service, equipment or network
or any other service or device; prevent, impair or otherwise
adversely affect access to or the operation of any programme or
data, including the reliability of any programme or data (whether
by re-arranging, altering or erasing the programme or data in
whole or part or otherwise); or adversely affect the user
experience, including worms, Trojan horses, viruses and other
similar things or devices.
1.2. A reference to a statute or statutory provision is a reference
to it as amended or re-enacted. A reference to a statute or
statutory provision includes any
subordinate legislation made under that statute or statutory
provision, as amended or re-enacted.
1.3. Any phrase introduced by the terms “including”, “include”, “in
particular” or any similar expression, shall be construed as
illustrative and shall not limit the sense of the words preceding
those terms.
1.4. A reference to “writing” or “written” excludes fax and email.
1.5. In respect of Managed Services, if there is a conflict between
these terms and conditions and a Service Level Agreement then
the latter shall prevail.
2. Basis of contract and Variation
2.1. An order constitutes an offer by the Customer to purchase
Equipment and/or Services and/or Software Licences in
accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when LMG
and the Customer execute a Statement of Work, at which point
and on which date the Contract shall come into existence
(“Commencement Date”).
2.3. Any descriptive matter or advertising issued by LMG or
contained on LMG’s website are issued or published for the sole
purpose of giving an approximate idea of the Equipment and/or
Services described in them. They shall not form part of the
Contract or have any contractual force.
2.4. Any quotation and/or Statement of Work given by LMG shall
not constitute an offer, and is only valid for a period of 30 days
from its date of issue, unless otherwise stated on the quotation or
Statement of Work as the case may be.
2.5. These Conditions shall apply to and be incorporated in the
Contract to the exclusion of any other terms that the Customer
seeks to impose or incorporate, or which are implied by trade,
customer, practice or course of dealing.
2.6. Except as set out in this Contract, all warranties, conditions,
terms and undertakings, express or implied, whether by statute,
common law, custom, trade usage, course of dealings or
otherwise (including without limitation as to quality, performance
or fitness or suitability for purpose) in respect of the Equipment
and/or Services and/or Software Licences to be provided by LMG
under this Contract are excluded to the fullest extent permitted by
law.
2.7. LMG may vary the terms of the Contract at any time by giving
30 days’ written notice to the Customer in order to:
2.7.1. comply with any legal or regulatory obligation; or
2.7.2. maintain the integrity or security of the Services; or
2.7.3. introduce new Services features; or
2.7.4. introduce improved levels of service for the Services.
2.8. Except for the reasons for varying the Contract under clause 2.7,
LMG may vary the terms of the Contract at any time after the
MCP by giving 30 days’ written notice to the Customer. Upon
receipt of a notice to vary the terms of the Contract, if the
Customer disagrees with the variation(s), the Customer may give
30 days’ written notice to LMG to terminate the Contract.
2.9. LMG reserves the right to amend the Statement of Work
and/or Service Level Agreements if necessary to comply with any
applicable law or regulatory requirement, or if the amendment
will not materially affect the nature or quality of the Services and
LMG shall notify the Customer in any such event. LMG also
reserves the right to modify its network, system configurations or
routing configuration, or modify or replace any hardware or
software in its network or in equipment used to delivery any
Services over its network, provided that so doing will have no
material adverse effect on either party’s ability to perform its
obligations under the Contract.
3. Equipment
3.1. Any dates quoted for delivery of the Equipment are
approximate only, and the time of delivery is not of the essence.
LMG shall deliver the Equipment to the location set out in the
Statement of Work or such other location as the parties may
agree (“Delivery Location”) at any time after LMG notifies the
Customer that the Equipment is ready. 3.2. Subject to clause 3.8
and clause 11.2, the Equipment is as described in the Statement
of Work. 3.3. Subject to clause 3.8, LMG reserves the right to
amend the Equipment ordered by a Customer if required by any
applicable statutory or regulatory requirement, and LMG shall
notify the Customer in any such event.
3.4. LMG shall deliver the Equipment to the location set out in the
Statement of Work or such other location as the parties may
agree (“Delivery Location”) at any time after LMG notifies the
Customer that the Equipment is ready.
3.5. Delivery of the Equipment shall be completed on unloading
the Equipment at the Delivery Location. Risk in the Equipment
shall pass to the Customer on completion of Delivery. Title to the
Equipment shall not pass to the Customer until LMG receives
payment in full (in cash or cleared funds) for the Equipment.
3.6. LMG shall not be liable for any delay in delivery of the
Equipment that is caused by a Force Majeure Event, manufacturer
or courier lead times or the Customer’s failure to provide LMG
with adequate delivery instructions or any other instructions that
are relevant to the supply of the Equipment. LMG shall use
reasonable efforts to notify the Customer in the event of a delay.
3.7. If the Customer fails to take or accept delivery of the
Equipment, then except where such failure or delay is caused by a
Force Majeure Event, LMG may at its option: (i) rearrange delivery
of the Equipment, provided that LMG may charge the Customer
for any delivery costs incurred and all related costs and expenses
(including insurance) of storing the Equipment until delivery takes
place; or (ii) resell or otherwise dispose of part or all of the
Equipment and, after deducting reasonable storage and selling
costs, account to the Customer for any excess over the price of
the Equipment or charge the Customer for any shortfall below the
price of the Equipment.
3.8. If LMG cannot supply the Equipment ordered by the
Customer, it reserves the right to offer alternative equipment of at
least equal quality to the Equipment at no extra cost to the
Customer.
3.9. LMG shall be responsible for any damage, shortage or loss in
transit, provided that the Customer notifies it to LMG (or its
carrier, if applicable) within three days of delivery or the proposed
delivery date of the Equipment and that the Equipment has been
handled in accordance with LMG’s stipulations. Any remedy under
this clause 3.9 shall be limited, at the option of LMG, to the
replacement or repair of any Equipment which is proven to LMG’s
satisfaction to have been lost or damaged in transit.
3.10. Where LMG provides any managed services in relation to
Equipment (such as fix and repair services), then this does not
oblige LMG to bear the costs of replacement of that Equipment,
which is a cost to the Customer.
4. Supply of Services
4.1. LMG shall supply the Services to the Customer using
reasonable care and skill, in accordance with the Statement of
Work and the Service Level Agreements in all material respects,
and shall use reasonable endeavours to meet any performance
dates for the Services specified in the Statement of Work and the
Project Plan, but any such dates shall be estimates only.
4.2. LMG reserves the right to amend the Statement of Work if
necessary to comply with any applicable law or regulatory
requirement, or if the amendment will not materially affect the
nature or quality of the Professional Services and LMG shall notify
the Customer in any such event.
4.3. Any managed Services, and applicable Service Level
Agreements, shall commence from the Service Commencement
Date, and shall be deemed accepted by the Customer if they do
not provide any notification of non-conformance with the
warranty at clause 4.1 within three Business Days of the Service
Commencement Date. If the Customer notifies LMG of any non-
compliance against warranty then LMG shall use reasonable
endeavours to fix the warranty issue as soon as reasonably
practicable. or provide the Customer with an alternative means of
accomplishing the desired performance. Such correction or
substitution constitutes the Customer’s sole and exclusive
remedy..
4.4. LMG does not warrant that the Customer’s use of the
Managed Services shall be uninterrupted or error-free.
4.5. LMG does not provide general business continuity planning,
which is the responsibility of the Customer. The Customer agrees
that data loss is an inherent part of using the Services, and the
Customer acknowledges that LMG’s backup and restore services
(if provided) are not a complete substitute for such arrangements.
LMG is not in a position to verify the data which is backed up, and
the Customer is fully responsible for any backed up or restored
data by which is inaccurate, incomplete or corrupted, save where
caused by LMG’s breach or negligent performance.
4.6. The Customer acknowledges that the Services can be subject
to delays, outages and unavailability, for example due to third
party software and equipment, use of servers which are
unsupported by LMG, planned maintenance and the introduction
of any Virus or malware into the Customer’s estate.
4.7. LMG will operate safety and security measures and
procedures consistent with Good Industry Practice for the
prevention of unauthorised access or damage to any and all
Services.
4.8. Each of LMG and the Customer will promptly inform the other
if it suspects or uncovers any breach of security in respect of the
Services, and LMG will use all commercially reasonable
endeavours to verify and, if verified, promptly remedy such
breach.
5. Software Licences
5.1. The Software Licences are described in the Order
Confirmation. LMG warrants that it is authorised and entitled to
sub-licence or licence the Third Party Software to the Customer.
5.2. LMG shall provide any Third-Party Software to the Customer
under the standard licence terms provided by the relevant third
parties, copies of which shall be provided to the Customer, and
the Customer agrees to be bound to the relevant third parties by
such licence terms and it is a condition of the Contract that the
Customer does so.
5.3. The only warranties which LMG makes available in respect of
Third-Party Software are those provided directly by the relevant
third parties under the standard licence terms referred to above.
5.4. All Intellectual Property Rights in Third-Party Software shall at
all times vest in LMG and/or the relevant Third-Party Software
provider, and the Customer acquires no rights in the Third-Party
Software save for the licence herein.
5.5. The Software Licences may include terms for auto-renewal of
the Software covered by that licence. Where this is the case, the
Customer is responsible for ensuring that it reads and
understands these auto-renewal terms, which apply to all use of
Software under the relevant Software Licence. Software Licences
will auto-renew in accordance with the standard licence terms of
the relevant Software Licence and may not be cancellable or
terminable on the expiry or termination of this Contract.
5.6. The Customer agrees that LMG is not responsible for the
performance or non-performance of the software, data centre or
hosting services provided under the terms of the Software
Licences and that its sole remedy is against the providers of the
same in accordance with the Software Licences.
5.7. The Customer agrees and acknowledges that the third party
providers of Software Licences may collect and process Personal
Data arising from the use by the Customer and its employees,
agents and contractors, of that Software. The Customer is
responsible for ensuring that it abides by all data protection
obligations set out in or referred to within the licence terms for
Third Party Software, and for ensuring that it obtains all required
licences, permissions and consents for any processing of Personal
Data by those third party providers in accordance with those third
party terms.
5.8. In addition to the direct undertakings under the Software
Licences, the Customer shall not and will not permit any third
party to:
5.8.1. distribute, sell or licence any of the Third Party Software;
5.8.2. reverse engineer, reproduce, modify, amend, copy, reverse
compile or attempt to discover the source code or object code of
the Third Party Software.
6. Charges and payment
6.1. The Customer shall pay the Charges for the Services and any
Equipment as set out in the Order and as varied from time to time
pursuant to this clause.
6.2. For One-off Charges and charges for Equipment, LMG shall
invoice the Customer at any time from delivery. For Recurring
Charges, such as support services or Maintenance Services, LMG
will invoice monthly in advance.
6.3. LMG may increase the Charges at any time whatsoever
following expiry of the MCP. 6.4. Notwithstanding the provisions
of clause 6.3, LMG may also increase Charges for any Services at
any time upon provision to the Customer of 30
days’ written notice to reflect either: (i) increases in third party
costs to it in providing the Services; and/or (ii) an
increase in its costs of delivering the Service since the last price
increase (if any); and/or (iii) any increase in costs based on the
Customer’s actual usage (for example usage based costs of
managed and cloud services). Such notice may be contained in
billing information or in invoices provided to the Customer.
6.5. Without prejudice to any other rights LMG may have, LMG is
entitled to claim interest on overdue invoices under the Late
Payment of Commercial Debts (Interest) Act 1998.
6.6. If it is necessary for LMG to send correspondence to the
Customer in order to obtain payment for overdue accounts, LMG
reserves the right to make a charge of £20 per letter sent to the
Customer, which the Customer acknowledges and agrees is a fair
and proportionate charge based on LMG’s administration costs.
6.7. LMG reserves the right to refer any outstanding account to a
debt collection agency. If a debt collection agency is instructed to
collect payment (including interest and late payment charges) on
LMG’s behalf, the Customer must pay LMG’s costs payable to the
agency, who will add the sum to the Customer’s outstanding
account debt.
6.8. All Charges and sums referred to in the Contract are exclusive
of value added tax and any other taxes of similar nature which
may from time to time be introduced which shall (if applicable) be
charged in accordance with the relevant regulations in force at the
time of making the taxable supply and must be paid by the
Customer.
6.9. LMG may, at its sole discretion and before providing any
Services, carry out credit checks or complete its credit vetting
procedure with respect to the Customer.
6.10. It is agreed that where LMG approaches a finance or lease
provider to arrange finance for Equipment then LMG acts as an
agent for the Customer and not for the finance or lease provider.
6.11. If indemnities are required by a relevant finance provider,
failure to provide such indemnities shall constitute a breach of the
Contract by the Customer and shall entitle LMG to terminate the
Contract.
6.12. After delivery and installation (where applicable) of the
Equipment is completed, any failure by the Customer to complete
any relevant finance agreement documentation shall render the
Customer liable to pay to LMG all Charges due under the Contract
within 7 days of the date of invoice by LMG.
7. Customer obligations
7.1. The Customer shall:
7.1.1. provide in a timely manner such access to the Customer’s
premises and data, and such office accommodation and other
facilities, as is requested by LMG;
7.1.2. be responsible (at its own cost) for preparing the relevant
premises for the supply of the Services, including but not limited
to, ensuring the availability of networking, cabling and sockets,
and the operation of existing equipment;
7.1.3. ensure there are adequate health and safety provisions in
place at the Customer’s premises, and that they hold legally
sufficient third-party public liability insurance covering risk of
death and injury to LMG personnel;
7.1.4. installing the correct management agents for the
Customer’s operating environment, or if LMG installs
management agents as part of the Services, not interfere with
such management agents;
7.1.5. ensure that any assumptions, dependencies, and
obligations under these Conditions and any additional
prerequisites, assumptions and obligations as set out in the
Statement of Work are fulfilled or complied with as the case may
be;
7.1.6. shall remain responsible for the use of the Services under
its control, including any use by third parties (whether fraudulent
or invited by the Customer);
7.1.6.1. the Customer has assumed responsibility for the purchase
of associated hardware and software maintenance contracts and
procuring LMG’s ability to access and use such services;
7.1.6.2. inform LMG of any new applications and/or services
brought onto the Services and ensure that such applications or
services are licensed and compliant;
7.1.6.3. implement effective and appropriate backup and other
procedures for the protection of its data where backup and
restore services are not part of the Services; and
7.1.6.4. take reasonable measures to ensure it does not
jeopardise services supplied to third parties on the same shared
access infrastructure as notified to the Customer by LMG in
writing. This includes informing LMG promptly in the case of a
denial-of-service attack or distributed denial-of-service attack. In
the event of any such incident.
7.2. The Customer shall remain responsible for the use of the
Services under its control, including any use by third parties
(whether fraudulent or invited by the Customer), and in respect of
managed Services provided shall not transmit, use, distribute or
store any content, material or information that;:
7.2.1. is unlawful, harmful, threatening, defamatory, obscene,
harassing or racially or ethnically offensive;
7.2.2. facilitates illegal activity;
7.2.3. depicts sexually explicit images;
7.2.4. promotes unlawful violence, discrimination based on race,
gender, age, disability, sexual orientation, religion, belief or
gender reassignment, or any other illegal activity; and/or
7.2.5. infringes intellectual property rights.
7.3. If LMG ‘s performance of its obligations under the Contract is
prevented or delayed by any act or omission of the Customer or
the Customer’s agents,
subcontractors or employees, then LMG shall be entitled to adjust
the timetable for delivery and performance under the Contract,
and the Customer shall in all circumstances be liable to pay to
LMG on demand all reasonable costs, charges or losses sustained
or incurred by LMG, subject to LMG confirming such costs,
charges and losses to the Customer in writing. Such losses shall
include, without limitation, any direct, indirect or consequential
losses, loss of profit and loss of reputation, loss or damage to
property, injury to or death of any person and loss of opportunity
to deploy resources elsewhere.
8. Services Management and Change Control
8.1. Each of the Customer and LMG shall appoint a project
manager (named in the Statement of Work) who shall have
authority to contractually bind them on all matters relating to the
Services. Each party shall use reasonable endeavours to ensure
that the same person acts as project manager throughout the
term of the Contract, but may replace that person from time to
time where reasonably necessary.
8.2. The project managers shall meet at least once every month to
discuss matters relating to the Services. If either party wishes to
change the scope of the Services, it shall submit details of the
requested change to the other in writing.
8.3. If either party requests a change to the scope or execution of
the Services, LMG shall, within a reasonable time, provide a
written estimate to the Customer of:
8.3.1. the likely time required to implement the change;
8.3.2. any variations to LMG’s Charges arising from the change;
8.3.3. the likely effect of the change on the Project Plan; and
8.3.4. any other impact of the change on the terms of the
Contract.
8.4. If LMG requests a change to the scope of the Services, the
Customer shall not unreasonably withhold or delay consent to it.
8.5. If the Customer wishes LMG to proceed with the change,
LMG has no obligation to do so unless and until the parties have
agreed in writing on the necessary variations to its charges, the
Project Plan and any other relevant terms of the Contract to take
account of the change.
9. Intellectual Property Rights 9.1. Subject to clause 9.2, all
Intellectual Property Rights and all other rights in or arising out of
or in connection with the Services shall be owned LMG.
9.2. In so far as LMG provides any third party assets to the
Customer in connection with Services (including any Third Party
Software), any Intellectual Property Rights in such third party
assets shall vest in the third party provider and the Customer’s
rights in relation to such Intellectual Property Rights shall be as
set out in the relevant third party’s terms and the Customer
agrees to be bound by such third party terms and to indemnify
LMG against any breach or non-performance of the same.
9.3. The Customer agrees that LMG may use and display the
trademarks (or similar), trade names, brands and logos of the
Customer solely in respect of advertising the relationship between
the parties and the provision to the Customer of services and the
Customer consents to LMG having the right to disclose for
marketing purposes that the Customer is a customer of LMG.
9.4. The Customer shall not use or display the trademarks (or
similar), trade names, brands and logos of LMG without obtaining
the prior written consent of LMG (not to be unreasonably
withheld or delayed).
9.5. If LMG or the Customer becomes aware of an infringement or
threatened infringement of the Intellectual Property Rights
belonging to the other party, then that party shall promptly notify
the other party of all relevant details relating to the infringement
or threatened infringement.
9.6. Each party may take such steps and proceedings as it
considers necessary or desirable to protect its Intellectual
Property Rights and the other party must render all reasonable
assistance in this regard, at the expense of the party protecting its
Intellectual Property Rights.
9.7. If a party licenses Intellectual Property Rights to the other
party for the purposes of the Contract, and that Intellectual
Property Rights infringes the rights of a third party, then the
licensing party may:
9.7.1. at its own expense take such steps as are necessary to cure
the infringement; or
9.7.2. provide alternative technology as soon as reasonably
practicable; or
9.7.3. if (in the licensing party’s opinion) neither of the foregoing
options is reasonable, having regard to the likely costs and other
relevant matters, terminate the Contract without further liability
of either party.
10. Data protection and data processing 10.1. For the purposes of
this clause 10, the terms controller, processor, data subject,
personal data, personal data breach and processing shall have the
meaning given to them in the UK GDPR.
10.2. Both parties will comply with all applicable requirements of
Data Protection Laws. This clause is in addition to, and does not
relieve, remove or replace, a party’s obligations or rights under
Data Protection Laws.
10.3. The parties have determined that, for the purposes of Data
Protection Laws LMG shall process the personal data set out in
the Statement of Work, as a processor on behalf of the Customer
in respect of the processing activities set out in the Statement of
Work.
10.4. By entering into the Contract, the Customer consents to
(and shall procure all required consents, from its personnel,
representatives and agents, in respect of) all actions taken by LMG
in connection with the processing of the Customer Personal Data,
provided these are in compliance with the then-current version of
LMG’s privacy policy available at:
https://lmglobaltechnology.co.uk/privacy-policy/
(“Privacy Policy”). In the event of any inconsistency or conflict
between the terms of the Privacy Policy and this agreement, the
Privacy Policy will take precedence. 10.5. Without prejudice to the
generality of clause 10.2, the Customer will ensure that it has all
necessary appropriate consents and notices in place to enable
lawful transfer of the Customer Personal Data to LMG for the
duration and purposes of the Contract.
10.6. In relation to the Customer Personal Data, the Statement of
Work sets out the scope, nature and
purpose of processing by LMG, the duration of the processing and
the types of personal data and categories of data subject. 10.7.
Without prejudice to the generality of clause 10.2 LMG shall, in
relation to Customer Personal Data:
10.7.1. process that Customer Personal Data only on the
documented instructions of the Customer, which shall be to
process the Customer Personal Data for the purposes set out in
the Statement of Work (“Purpose”), unless LMG is required by
Data Protection Laws to otherwise process that Customer
Personal Data. Where LMG is relying on Data Protection Laws as
the basis for processing Customer Processor Data, LMG shall
notify the Customer of this before performing the processing
required by the Data Protection Laws unless those Data Protection
Laws prohibit LMG from so notifying the Customer on important
grounds of public interest. LMG shall inform the Customer if, in
the opinion of LMG the instructions of the Customer infringe Data
Protection Laws;
10.7.2. implement the technical and organisational measures set
out in the Order to protect against unauthorised or unlawful
processing of Customer Personal Data and against accidental loss
or destruction of, or damage to, Customer Personal Data, which
the Customer has reviewed and confirms are appropriate to the
harm that might result from the unauthorised or unlawful
processing or accidental loss, destruction or damage and the
nature of the data to be protected, having regard to the state of
technological development and the cost of implementing any
measures;
10.7.3. ensure that any personnel engaged and authorised by
LMG to process Customer Personal Data have committed
themselves to confidentiality or are under an appropriate
statutory or common law obligation of confidentiality;
10.7.4. assist the Customer insofar as this is possible (taking into
account the nature of the processing and the information
available to LMG), and at the Customer’s cost and written request,
in responding to any request from a data subject and in ensuring
the Customer’s compliance with its obligations under Data
Protection Laws with respect to security, breach notifications,
impact assessments and consultations with supervisory
authorities or regulators;
10.7.5. notify the Customer without undue delay on becoming
aware of a personal data breach involving the Customer Personal
Data;
10.7.6. at the written direction of the Customer, delete or return
Customer Personal Data and copies thereof to the Customer on
termination of the agreement unless LMG is required by Data
Protection Laws to continue to process that Customer Personal
Data. For the purposes of this clause 10.7.6 Customer Personal
Data shall be considered deleted where it is put beyond further
use by LMG; and
10.7.7. maintain records to demonstrate its compliance with this
clause and allow for reasonable audits by the Customer or the
Customer’s designated auditor, for this purpose, on reasonable
written notice.
10.8. The Customer hereby provides its prior, general
authorisation for LMG to:
10.8.1. appoint processors to process the Customer Personal
Data, provided that LMG:
10.8.1.1. shall ensure that the terms on which it appoints such
processors comply with Data Protection Laws, and are consistent
with the obligations imposed on LMG in this clause;
10.8.1.2. shall remain responsible for the acts and omission of any
such processor as if they were the acts and omissions of LMG; and
10.8.1.3. shall inform the Customer of any intended changes
concerning the addition or replacement of the processors,
thereby giving the Customer the opportunity to object to such
changes provided that if the Customer objects to the changes and
cannot demonstrate, to LMG reasonable satisfaction, that the
objection is due to an actual or likely breach of Data Protection
Law, the Customer shall indemnify LMG for any losses, damages,
costs (including legal fees) and expenses suffered by LMG in
accommodating the objection.
10.8.2. transfer Customer Personal Data outside of the UK as
required for the Purpose, provided that LMG shall ensure that all
such transfers are effected in accordance with Data Protection
Laws. For these purposes, the Customer shall promptly comply
with any reasonable request of LMG, including any request to
enter into standard data protection clauses adopted by the EU
Commission from time to time (where the EU GDPR applies to the
transfer) or adopted by the UK Information Commissioner from
time to time (where the UK GDPR applies to the transfer).
10.9. Either party may, at any time on not less than 30 days’
notice, revise this clause by replacing it (in whole or part) with any
applicable standard clauses approved by the EU Commission or
the UK Information Commissioner’s Office or forming part of an
applicable certification scheme or code of conduct (“Amended
Terms”). Such Amended Terms shall apply when replaced by
attachment to this agreement, but only in respect of such matters
which are within the scope of the Amended Terms.
10.10. The Customer acknowledges that LMG may put its name
and other details obtained from the Customer into a secure
computerised directory for internal use and for the purposes of
providing the Services.
10.11. LMG will process personal data in accordance with its
Privacy Policy and Privacy Notice, both of which are available on
www.lmglobaltelecoms.co.uk and available upon request from
LMG’s Data Protection Officer at [gdpr@lmglobaltelecoms.co.uk]
10.12. The Customer’s attention is drawn to clause 5.7 which
refers to the processing of Personal Data under third party
Software Licences.
11. Limitation of liability
11.1. The following provisions set out the entire liability of LMG
(including without limitation any liability for the acts or omissions
of its employees, agents and sub-contractors) to the Customer.
11.2. The Customer acknowledges and agrees that LMG is not the
manufacturer of Equipment or provider of the Third Party
Software. LMG does not itself give any warranty, guarantee,
indemnity, condition or other assurance (whether express or
implied) in respect of any such Equipment or Third Party Software,
but shall use its reasonable endeavours to pass on to the
Customer the benefit of any warranties, guarantees, indemnities,
condition or other assurance as may be given by the applicable
third party manufacturer or supplier of any such Equipment or
Third Party Software.
11.3. Where applicable, if the Services are subject to a Service
Level Agreement then the Customer’s sole remedy for any such
failure of that Service shall, subject to clause 11.5, be the
Customer’s entire remedy for such failure.
11.4. All warranties, conditions and other terms implied by statute
or common law are, to the fullest extent permitted by law,
excluded from the Contract.
11.5. Nothing in these conditions excludes the liability of LMG:
11.5.1. for death or personal injury caused by LMG’s negligence;
11.5.2. for fraud or fraudulent misrepresentation.
11.6. The Customer assumes sole responsibility for results
obtained from the use of the Managed Services, and for the
conclusions drawn from such use. 11.7. Subject to clause 11.5:
11.7.1. LMG shall not in any circumstances be liable, whether in
tort (including without limitation for negligence or breach of
statutory duty howsoever arising), contract, misrepresentation
(whether innocent or negligent) or otherwise for:
11.7.1.1. loss of profits;
11.7.1.2. loss of sales or business;
11.7.1.3. loss of opportunity;
11.7.1.4. loss of revenue;
11.7.1.5. loss of agreements or contracts;
11.7.1.6. loss of anticipated savings;
11.7.1.7. loss of use or corruption of software, data or information
or interference with business;
11.7.1.8. loss of or damage to reputation or goodwill; or
11.7.1.9. any special, indirect, consequential or pure economic
loss, costs, damages, charges or expenses.
11.7.2. LMG shall not be liable for any loss or damage arising if
such loss is in any way attributable to failure of the Customer’s
own applications, databases or operating systems, including loss
or corruption of data or failure to implement back-up procedures.
11.7.3. LMG’s total liability in contract, tort (including without
limitation negligence or breach of statutory duty howsoever
arising), misrepresentation (whether innocent or negligent),
restitution or otherwise, arising in connection with the
performance or contemplated performance of the Contract shall
be limited to the total charges paid under the Contract. 11.8. This
clause 11 shall survive termination of the Contract.
12. Termination and Suspension
12.1. The Contract shall commence on the Commencement Date
as set out in the Statement of Work and shall continue, unless
terminated earlier in accordance with its terms, for the MCP, and
shall thereafter continue on a rolling month to month contract
until terminated by either party on giving at least 30 days’ notice.
12.2 The Customer may, at its sole discretion, terminate this
Agreement, in whole or in part, after 12 months from the
commencement date and during the MCP by providing not less than
90 days’ written notice to LMG. Such termination shall be effective
upon the expiry of the notice period, unless otherwise agreed in
writing by the Parties.
12.2.1 In the event the customer provides written notice prior to 12
months from the commencement date LMG shall be entitled to
invoice the Customer for the equivalent of the remaining period equal
to 9 months +90 days from the commencement date
12.3. Without prejudice to any other rights or remedies available
to it under this Contract, LMG may terminate the Contract with
immediate effect by giving written notice to the Customer if:
12.3.1. the Customer commits a material breach of any term of
this Contract and (if such a breach is remediable) fail to remedy
that breach within 30 (thirty) days of being notified in writing of
the breach;
12.3.2. the Customer takes any step or action in connection with
entering administration, provisional liquidation or any
composition or arrangement with its creditors (other than in
relation to a solvent restructuring), being wound up (whether
voluntarily or by order of the court, unless for the purpose of a
solvent restructuring), a person becomes entitled to appoint a
receiver over its assets or a receiver is appointed to any of its
assets or, if the step or action is taken in another jurisdiction, in
connection with any analogous procedure in the relevant
jurisdiction;
12.3.3. the Customer suspends or ceases, or threatens to suspend
or cease, to carry on all or a substantial part of its business; or
12.3.4. the Customer’s financial position deteriorates to such an
extent that in LMG’s reasonable opinion, the Customer’s
capability to adequately fulfil its obligations under the Contract
has been placed in jeopardy.
12.4. LMG shall be entitled, without prejudice to any of its other
rights or remedies under the Contract or at law, and without any
liability to the Customer whatsoever, to suspend the Services at
any time where the Customer is in breach of the Contract
(including but not limited to where any sums are overdue to LMG
or there is any breach or anticipated breach of clause 7.2), or
where LMG reasonably believes that the Customer’s applications,
or systems have been hacked or compromised, or where the
Customer has permitted the Services to be accessed or
manipulated by a third party without LMG’s consent. Where LMG
suspends the Services under this clause then the Customer shall
reimburse LMG for all reasonable costs and expenses incurred
implementing such suspension and/or re-provisioning the
Services if the suspension is lifted.
12.5. On termination of the Contract:
12.5.1. the Customer shall immediately pay to LMG all of LMG’s
outstanding unpaid invoices and
interest and, in respect of Services, Equipment, and any contracted or
supporting licences (including the remainder of any committed licence
or subscription terms) supplied but
for which no invoice has been submitted, LMG shall submit an
invoice, which shall be payable by the Customer immediately on
receipt;
12.5.2. LMG will decommission the Services, and the Customer
must discontinue use as soon as decommissioned;
12.5.3. LMG will, save where LMG has terminated for breach of
contract, provide the Customer with one electronic copy of the
Customer’s data, in such format as LMG determines, and
thereafter, LMG may delete such data at its discretion.
12.5.4 Each party shall promptly return any property (including
intellectual property) of the other which it has in its possession or
control.
12.6. Termination of the Contract shall not affect any rights,
remedies, obligations and liabilities of the parties that have
accrued up to the date of termination, including the right to claim
damages in respect of any breach of the Contract which existed at
or before the date of termination.
12.7. Any provision of the Contract that expressly or by
implication is intended to have effect after termination shall
continue in full force and effect.
13. General
13.1. Variation: Except as set out in these Conditions, no variation
of the Contract shall be effective unless it is agreed in writing and
signed by the parties (or their authorised representatives).
13.2. Force Majeure Event: LMG shall not in any circumstances
have any liability to the Customer under the Contract if it is
prevented from, or delayed in, performing its obligations under
the Contract or from carrying on its business by acts, events,
omissions or accidents beyond its reasonable control.
13.3. Waiver: A waiver of any right or remedy is only effective if
given in writing and shall not be deemed a waiver of any
subsequent breach or default. A delay or failure to exercise, or the
single or partial exercise of, any right or remedy shall not waive
that or any other right or remedy; or prevent or restrict the
further exercise of that or any other right or remedy.
13.4. Severance: If any provision or part-provision of the Contract
is or becomes invalid, illegal or unenforceable, it shall be deemed
modified to the minimum extent necessary to make it valid, legal
and enforceable. If such modification is not possible, the relevant
provision or part-provision shall be deemed deleted. Any
modification to or deletion of a provision or part-provision under
this clause shall not affect the validity and enforceability of the
rest of the Contract.
13.5. Confidentiality: Each party may be given access to
confidential information from the other party concerning the
business, affairs, customers, clients or suppliers of the other party
in order to perform its obligations under the Contract. A party’s
confidential information shall not be deemed to include
information that: (i) is or becomes publicly known other than
through any act or omission of the receiving party; (ii) was in the
other party’s lawful possession before the disclosure; (iii) is
lawfully disclosed to the receiving party by a third party without
restriction on disclosure; (iv) is independently developed by the
receiving party, which independent development can be shown by
written evidence.
Subject to paragraph (a) below, each party shall hold the other’s
confidential information in confidence and not make the other’s
confidential information available to any third party, or use the
other’s confidential information for any purpose other than to
perform its obligations under this Contract. (a) Each party may
disclose the other party’s confidential information: (i) to its
employees, officers, representatives, subcontractors or advisers
who need to know such information for the purposes of carrying
out the party’s obligations under the Contract. Each party shall
ensure that its employees, officers, representatives,
subcontractors or advisers to whom it discloses the other party’s
confidential information comply with this clause; and (ii) as may
be required by law, a court of competent jurisdiction or any
governmental or regulatory authority.
13.6. TUPE: The Customer warrants, undertakes and represents
that none of its employees, nor any employees of any “Customer
Party” meaning any of the Customer’s group companies,
contractors, or suppliers will transfer to LMG pursuant to the
Regulations on commencement of the Contract or on
commencement of the provision of any of the Services hereunder.
If any contract of employment of any person employed by a
Customer Party transfers, or is alleged to have transferred, to
LMG, under the Regulations, then LMG shall be entitled to
terminate the employment of any such employees, and the
Customer shall indemnify LMG in full for and against all claims,
costs, expenses or liabilities whatsoever arising incurred or
suffered by LMG including all damages, notice pay and
compensation, and all legal expenses and other professional fees
and VAT thereon, arising from: (i) LMG’s termination of
employment of those employees; (ii) anything done or omitted to
be done in respect of those employees which is deemed to have
been done by LMG by virtue of the Regulations; (iii)anything done
or omitted to be done by LMG in respect of any of those
employees whether before or after their alleged transfer date to
LMG.
13.7. Entire agreement: This Contract constitutes the entire
agreement between the parties and supersedes and extinguishes
all previous agreements, promises, assurances, warranties,
representations and understandings between them, whether
written or oral, relating to its subject matter. Each party agrees
that it shall have no remedies in respect of any statement,
representation, assurance or warranty (whether made innocently
or negligently) that is not set out in this Contract. Each party
agrees that it shall have no claim for innocent or negligent
misrepresentation or negligent misstatement based on any
statement in this Contract.
13.8. Assignment: LMG may at any time assign, transfer,
mortgage, charge, subcontract or deal in any other manner with
all or any of our rights under the Contract and may subcontract or
delegate in any manner any or all of our obligations under the
Contract to any third party or agent. The Customer shall not,
without LMG’s prior written consent, assign, transfer, mortgage,
charge, subcontract, declare a trust over or deal in any other
manner with any or all of its rights or obligations under the
Contract.
13.9. Third party rights: No one other than a party to this Contract
shall have any right to enforce any of its terms.
13.10. Notices: Any notice or other communication given to a
party under or in connection with the Contract shall be in writing,
addressed to that party at its registered office or such other
address as that party may have specified to the other party in
writing in accordance
delivered personally, or sent by pre-paid first class post or other
next working day delivery service, or commercial courier. A notice
or other communication shall be deemed to have been received:
if delivered personally, when left at the address referred to in this
clause; if sent by pre-paid first class post or other next working
day delivery service, at 9.00 am on the second Business Day after
posting; if delivered by commercial courier, on the date and at the
time that the courier’s delivery receipt is signed. The provisions of
this clause shall not apply to the service of any proceedings or
other documents in any legal action. For the purposes of this
clause, “writing” shall not include email.
13.11. Non-solicitation: The Customer shall not (unless with the
written consent of LMG) at any time from the date of the
Contract, nor within 12 (twelve) months after the termination of
the Contract, make direct or indirect unsolicited offers of
employment to an employee of LMG who has been engaged in a
managerial or technical capacity in connection with the Contract.
The Customer shall not be in breach of this clause if it hires an
employee or subcontractor of LMG as a result of a recruitment
campaign not specifically targeted to any employees or
subcontractors of LMG.
13.12. Governing law and jurisdiction: The Contract and any
disputes or claims arising out of or in connection with it or its
subject matter or formation (including without limitation non-
contractual disputes or claims) are governed by and construed in
accordance with the law of England and Wales. Each party
irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim (including non-
contractual disputes or claims) arising out of or in connection with
the Contract or its subject matter or formation.
We want to make you aware of an upcoming price adjustment that will take effect from 1st April. This update applies to a number of our services and reflects the rising operational costs across the industry. Making these changes ensures we can continue delivering the high quality service, support and reliability you expect from us.
We understand that price changes can raise questions. If you’d like to discuss how this update may affect your services, please feel free to contact us – we’re always happy to talk things through.
