Hosted Service Terms and Conditions
Between
(1) MAGNETIC NORTH SOFTWARE LIMITED, registered company number 3637644, whose registered office is at Solutions House, Meridian East, Meridian Business Park, Leicester, United Kingdom LE19 1TP (“Magnetic North”)
(2) The Company whose name, registration number and registered office is as detailed on the Magnetic North Hosted Service Acceptance order form, signed by an authorised officer of the Company (“the Customer”)
Introduction
(A) Magnetic North is the proprietor of the Intellectual Property Rights in the Software.
(B) Magnetic North has agreed to provide the Customer with access to and use of the Software and the Services on the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. Definitions
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
'Additional Charges'
the additional charges set out in Schedule 4 payable by the Customer for any increase in the permitted maximum number of concurrent or named agents, reviewers, recording ports or blending seats (as appropriate) at any time during the term of this Agreement;
‘Charges’
the charges payable for the provision of the Services, including telephone numbers or fees for telephone call minutes;
"Customer Equipment"
the hardware and software which the Customer uses to enable the Services and Software to be provided;
"Customer Information"
data input, created or used by the Customer in using the Software and Services;
'Customer'
a company whose order for Services has been accepted by Magnetic North and who has accepted the terms and conditions of this Agreement by executing this Agreement;
"Direct Debit"
the process of collection of invoices using the Bank Automated Clearing Service Direct Debit system from UK Bank accounts, otherwise by American Express, Visa or MasterCard Credit Card for other countries.
"Downtime"
an outage causing interruption or failure in the provision of the Services;
"Intellectual Property Rights"
all copyrights, patents, registered and unregistered design rights, trademarks and service marks and applications for any of these, together with all database rights, trade secrets, know-how and other intellectual property rights in all parts of the world and for the full term including all rights of renewal
"Keycode"
the keycode issued by Magnetic North as described in the user manuals under the section ‘How to get Activated’
"Network"
a network comprising all or any of the following: modems, leased circuits and other telecommunications hardware and software;
‘Rental Period’
the duration (charged monthly) for which the Services are to be provided as specified in the Services Schedule and clause 15.1 of this Agreement;
“Services”
the software and other services to be provided by Magnetic North under this Agreement as described in the Services Schedule
"Service Levels"
the levels of performance to which the Services are to be provided to the Customer by Magnetic North as more particularly described on the support portal of the Website which may be amended and updated from time to time;
"Service Procedures"
the procedures to provide instructions and guidance for the Customer's management of the Services set out on the support portal of the Website, which may be amended and updated from time to time;
"Software"
the Optimise and/or Maximise software (as set out in the Services Schedule) for which the Services are to be provided, as more particularly described on Magnetic North's website (www.magneticnorth.com) and which may be amended and updated from time to time without prior notice;
"System"
the Software, Services, and the Network as they operate together in the provision of the Services;
"Technical Environment"
the Network together with the Customer Equipment, and any related equipment and connections, all as specified in the Technical Environment as set out in Schedule 3.
"Website"
Magnetic North’s website at www.magneticnorth.com or such other address as Magnetic North may specify.
1.2 Headings are for ease of reference and shall not be taken into account in construing this Agreement.
1.3 Where appropriate words denoting the singular shall include the plural and vice versa.
1.4 Reference to any statute or statutory provision shall include a reference to the statute or statutory provision as from time to time amended, extended or re-enacted.
2. Magnetic North Services
2.1 Magnetic North shall provide the Services to the Customer in consideration of the payment of the Charges by the Customer as set out in clause 5 below, subject to the terms and conditions of this Agreement.
2.2 Magnetic North shall make available to the Customer its Service Procedures and other appropriate support and diagnostic information, and shall notify the Customer whenever updated Service Procedures are issued. Information contained in the Service Procedures may include, but is not limited to:
2.2.1 technical support offered by Magnetic North;
2.2.2 user manuals, operating instructions and other documentation offered by Magnetic North;
2.2.3 training offered by Magnetic North;
2.2.4 usage restrictions to prevent unreasonable loads being imposed on the Network;
2.2.5 procedures to ensure that the security and integrity of the System are maintained, including encryption details if appropriate, and any procedures which arise from the need to comply with regulations of any data centre facility engaged by Magnetic North in connection with the Services; and
2.2.6 procedures to ensure that any database or other applications which form part of the Services can be used to best effect and within capacity.
2.3 Magnetic North shall use all reasonable endeavours to comply with the Service Levels.
2.4 If the Customer wishes Magnetic North to perform any service which is not part of the Services, Magnetic North may carry out that service at its sole option, and the Customer will be charged separately for it at its current rates for such services.
2.5 Magnetic North may periodically change the Customer's standard security procedures or password and shall notify the Customer accordingly.
2.6 Access to the Services will only be activated once the Customer has confirmed acceptance of the terms on which the Services are to be provided by signing the Hosting Service Acceptance Form sent out with Magnetic North’s quotation and provided authorisation to setup a direct debit and once any initial Charges and upfront monthly payments have been paid in full.
2.7 For the avoidance of doubt, access to the Services under clause 2.1 above is granted for a maximum number of permitted concurrent or named agents, reviewers, recording ports or blending seats (as appropriate) as set out in Schedule 1. The Customer may, however, increase the maximum number of permitted concurrent or named agents, channels, reviewers, recording ports or blending seats (as appropriate) at any time subject to payment to Magnetic North of the sums set out in clause 2.8 below (this concept is known as "Licence Flexing").
2.8 Where the Customer exceeds the maximum number of permitted concurrent or named agents, channels, reviewers, recording ports or blending seats (as appropriate) as provided for in clause 2.7 above, the Customer shall pay to Magnetic North the Additional Charges. Such Additional Charges shall be paid by the Customer to Magnetic North by Direct Debit to such account as Magnetic North may from time to time specify and within 10 days of the date of receipt of Magnetic North's invoice. Magnetic North may increase the Additional Charges on the anniversary of this Agreement and thereafter during this Agreement by giving not less than 30 days' notice to the Licensee,
3. Licence and Scope of Use
3.1 Magnetic North grants to the Customer a non-exclusive, non-transferable licence to use the Services and the Software on the terms of this Agreement for the Customer's normal business purposes.
3.2 The Customer may use the Services only by:
3.2.1 accessing the Services in accordance with the Service Procedures; and
3.2.2 entering, editing, transferring or deleting and moving its input comprising Customer Information, documents, data, files and other content within the Services.
3.3 The Customer acknowledges that it is its sole responsibility to determine that the Software and Services meet the needs of its business and to satisfy itself that the Software is ready for operational use in its business before it is so used.
3.4 The Customer is responsible for maintaining back up and reconstruction of its own software and the Customer Information.
3.5 The licence granted to the Customer in clause 3.1 above is personal to the Customer and the Customer is not permitted to assign, transfer, sub-license, or otherwise dispose of any of the licensed rights (or any part thereof) to a third party. Nothing in this Agreement transfers any proprietary rights in the Software or the Services to the Customer.
4. Customer Obligations
4.1 The Customer shall:-
4.1.1 not use the Services for any illegal purpose, for the transmission of information or other material that is libellous, unlawful, harassing, abusive, threatening, harmful, vulgar, defamatory, obscene, pornographic or might cause offence in any way, or for information or material that infringes a third party’s rights (including Intellectual Property Rights), or is contrary to the laws governing pornography. Nor will the Customer use the Services in any which may breach the ICSTIS or OFCOM rules and regulations or any equivalent, comparable or similar rules, regulations or laws in any applicable jurisdiction;
4.1.2 comply in every respect with all instructions which Magnetic North provides concerning the Services, including the requirements set out in the Service Procedures; and
4.1.3 use and adhere to the Customer names, passwords and any authentication codes or security procedures which Magnetic North may notify to the Customer from time to time;
4.1.4 obtain all necessary permissions to use and pay for the Services selected, to receive, download, upload, display, distribute or execute other programs or perform other works;
4.1.4 not reproduce, disseminate or otherwise disclose the content of any Software except as expressly set out in this Agreement;
4.1.5 not electronically transmit any part of the Software except as necessary for the Customer's licensed use of the Software;
4.1.6 not use run-time versions of any third party products which may be embedded in the Software, for any use other than the use of the Software;
4.1.7 not modify, disassemble, decompile, or reverse engineer any Software except to the extent permitted by law and must first give 30 days notice to Magnetic North;
4.1.8 not permit the use by any third party of the Software outside the terms of this Agreement;
4.1.9 not use the Software in any way not expressly provided for by this Agreement.
4.2 The Customer shall use only Customer Equipment which is in good working order and in compliance with the specification in the Technical Environment Schedule. The Customer shall give 90 days' written notice of any changes it proposes to make to the Customer Equipment. If any such Customer Equipment is not compatible with the Services or Software, Magnetic North shall notify the Customer in writing, and the Customer shall promptly rectify the situation.
4.3 The Customer shall acquire and maintain all licences and permissions necessary in respect of any third party software it may use in connection with the Services. The Customer confirms that any Customer Equipment, Customer Information or other materials provided by the Customer to Magnetic North or utilised by Magnetic North in the provision of Services will not infringe any Intellectual Property Rights of any third party.
4.4 If, for the purpose of providing the Services, it is necessary or desirable for Magnetic North to access or use any Customer Equipment, Customer Information, facilities or services, the Customer will make these available to Magnetic North for access free of charge.
4.5 The Customer acknowledges and agrees that it is entirely responsible for its Customer Information and its input to the Software and the Services and for any use that it or any third party may make of the such Customer Information and input for any purposes and that Magnetic North has no responsibility for such input or use. Without prejudice to the generality of the foregoing, the Customer undertakes to inform itself (and, if appropriate, Magnetic North) concerning, and in performing its obligations under this Agreement, to comply fully with all laws, regulations, licences or binding codes or standards of practice relevant to personal data (including without limitation the Data Protection Act 1998).
4.6 By inputting Customer Information to Magnetic North Systems, the Customer grants Magnetic North a world-wide, royalty-free, and non-exclusive licence to reproduce, modify, adapt and publish the content for the purpose of providing the Services to the Customer.
4.7 If the Customer is in breach of any of its obligations in this clause 4, then, without prejudice to the other terms and conditions in this Agreement:
4.7.2 Magnetic North shall not be liable for any failure to meet the Service Levels which arises as a direct or indirect result of such Customer breach;
4.7.3 Magnetic North shall be entitled to charge the Customer for staff time engaged on rectifying problems at Magnetic North's standard charge rates for the time being. This is also true if Magnetic North is forced to incur additional time onsite at the customer owning to delays of the customer's creation, such as the environment not being ready or pre-requisites not being met, or key Customer resources being unavailable.
4.8 If Magnetic North suffers any loss, damage or expense as a result of:
4.8.2 any unauthorised access to, or use or misuse of the Services by any employee, agent or sub-contractor of the Customer;
4.8.3 any unauthorised access to, or use or misuse of the Services by any third party if such access, use or misuse was permitted or facilitated by such employee, agent or sub-contractor;
the Customer shall fully indemnify Magnetic North in respect of such loss, damage or expense.
4.9 The Customer acknowledges that Magnetic North does not monitor or pre-screen any use of the Services or any content distributed by the Customer via the Services, and that Magnetic North shall have the right at its sole discretion to refuse access to the Services or to refuse to accept or remove any content that is made available by the Customer via the Service. Without limiting the foregoing, Magnetic North and its operators shall have the right to refuse access to the Services where such Services are used by the Customer to distribute any content that violates this Agreement, or is otherwise objectionable to Magnetic North management.
5. Charges
5.1 Unless otherwise provided in this Agreement, the Customer shall pay Magnetic North the Charges in respect of the Services at the rates set out in the Charges Schedule, and such Charges may be varied on 90 days' written notice after the initial Rental Period. [Whenever such notice is given the Customer shall have the right to terminate this Agreement as from the date on which such notice expires by giving to Magnetic North written notice of termination not less than [30] days before such date.]
5.2 The Charges payable under this Agreement are exclusive of Value Added Tax which if applicable shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
5.3 Payment for the Charges other than as detailed in 5.7 below, shall be made monthly in advance by the Customer using Direct Debit, details of which must be submitted when signing the Services Acceptance form. All Charges due to Magnetic North must be paid in full by the Customer's bank immediately on presentation by Magnetic North. Telephone call charges are billed in arrears and collected by Direct Debit on the first day of each calendar month for the previous months usage. Call charges are charged in pence per minute calculated on per second basis, subject to a minimum call charge of thirty seconds per call unless otherwise agreed in writing by both parties. Some call destinations / tariffs may also include a setup cost per call or a minimum call charge irrespective of destination and duration.
5.3.1 The telecom market for call termination pricing is dynamic and the costs of calls to different destinations change on a daily basis at a wholesale level. Whilst Magnetic North publish specific rates for some named destinations for a given contract period and tariff, these are subject to modification in the event of changes in market conditions, wholesale prices and other circumstances beyond our control. In the unlikely event of this occuring, we will update the relevant agreed named rate to either our then current retail rate or a revised published rate for the tariff in question. A complete list of retail rates is available on line at www.magneticnorth.com and headline published rates for key destinations can be provided on request at any time for the customers' live tariff.
5.4 Costs which are additional to the Charges and which are also the Customer's responsibility include:
5.4.1 PCs, modems, printers or other equipment which may be necessary to access and use the Services;
5.4.2 communication charges, access fees, levies, tariffs or other related costs between the Customer and Magnetic North (unless provided by us) or the Internet host or any other third party;
5.4.3 installation and testing of any communications lines, links or interfaces or any equipment or service used in connection with the Services.
5.5 If any sum payable under this Agreement (including, without limitation, the Additional Charges) is not paid within 7 days after the due date then (without prejudice to Magnetic North's other rights and remedies) Magnetic North shall be entitled to suspend the provision of the Services pending payment of all sums due.
5.6 Once a Customer’s Service Order has been processed and acknowledged by Magnetic North, all Charges are non-refundable.
5.7 Where a customer commits to a longer service term in order to obtain the benefit of reduced fixed monthly service Charges, those charges for the Rental Period are due for payment in full before the service can be activated, and such charges are non refundable once service has been activated.
5.8 Where a customer has committed to such a service term, unless otherwise agreed between the parties, at the end of the service term, Magnetic North shall automatically migrate the customer to a no commitment tariff at the then applicable rental and call charges for that tariff.
5.9 If during the term of a committed period contract, the Customer requests an upgrade or additional services or users, then it is agreed that the term of the original commitment period shall be automatically extended to run co-terminously with that of the upgrade in question.
5.10 All services where Magnetic North takes over the Line Rental Billing from another telephone operator are and bills these to the Customer are for a minimum period of 12 months. Should the Customer terminate the contract before these 12 months have expired, then it is agreed between the parties that regardless of the reason for termination, the remaining line rentals shall be payable immediately in full by the Customer.
5.11 Time is of the essence for payment.
5.12 Payments that not made on time, or where Direct Debit Collection requests by Magnetic North are refused for any reason, may be subjected to interest at 8% above the bank of England Base Rate, and in all such cases, even if interest is not levied, a late payment administration fee will be automatically applied to the next invoice generated by Magnetic North to the Customer.
5.13 Credit Checking - To prevent fraud and keep call charges low, Magnetic North automatically perform credit checks on all new customers being provisioned on our network. These credit checks are carried out using industry leading credit agencies and reflect real-time credit insurance available on a particular Customer's account. Where the customers expected usage exceeds that of the credit limit recommended by our 3rd party credit information providers, Magnetic North may require the Customer to lodge with us a "Call Bond" to mitigate risk against call charges that the Customer could reasonably be expected to incur taking in to account their number of users and expected call destinations. If such a Call Bond is required, the Customer will be notified prior to activation of the service including the value and currency of the Call Bond required and these funds must be lodged by Bank Transfer by the Customer in Magnetic North's bank account before the Customer will be provided access to the system and calling access enabled. Existing Customer accounts are also periodically reviewed for Credit insurance purposes and should a Customer's usage exceed their then current rating, a Call Bond may be required by Magnetic North and the Customer agrees to pay this to ensure uninterrupted access to the service. Call Bonds are repaid to terminating customers once all outstanding charges have been met.
6. Security and Information
6.1 Magnetic North will effect and maintain reasonable security measures, in order to safeguard Customer Information from unauthorised access and use, and to minimise the risk of a security breach and, if appropriate these will be specified in the Service Level Specification.
6.2 Encryption techniques (where appropriate) may be used for protecting Customer Information on input and transmission over the Network, as specified in the Service Procedures.
6.3 If the Customer learns about or is informed of any components, processes or methods of operating any software comprised in any Service it shall treat such knowledge or information as Magnetic North's trade secret, and it will not use it to the benefit of any party other than Magnetic North or convey it in any way to any third party or allow any third party to acquire it.
7 Service Availability
7.1 Subject to the provisions set out in this clause 7, Magnetic North shall use all reasonable endeavours to make the Services and Software available during the times specified in the Service Level Specification.
7.2 Notwithstanding clause 7.1 above, the Services or any particular Service Levels may be suspended or modified for so long as is reasonably necessary subject to prior written notice to the Customer:-
(i) to enable either party to comply with an order or request from a governmental, or other competent regulatory body or administrative authority; or
(ii) to enable Magnetic North to carry out work which is necessary in its reasonable opinion to maintain or improve the Services; or
(iii) to carry out standard maintenance;
provided that Magnetic North will use reasonable endeavours to schedule such Downtime during hours of low usage of the Services in order to minimise impact on the Services.
7.3 If the Software requires immediate correction to enable it to run effectively or for immediate compliance with a governmental or regulatory requirement, Magnetic North may suspend the Software without advance warning for so long as reasonably necessary to implement the correction or to ensure compliance.
7.4 Magnetic North may in its sole discretion make changes or upgrades to the Software or Services or their accessibility, to the Technical Environment or to the Service Procedures, provided that such changes or upgrades do not cause any material reduction in functionality. Magnetic North will endeavour to give at least seven (7) days written notice of any such changes. The Software may be suspended for so long as is reasonably necessary, but Magnetic North will use reasonable endeavours to minimise the Downtime that may be caused by such change or upgrade. If as a result of such changes, the Customer's ability to use the Services or the cost to the Customer of using the Services is materially and adversely affected, the Customer may terminate this Agreement on fourteen (14) days written notice to Magnetic North.
7.5 In the event of Downtime as specified in clauses 7.2, 7.3 or 7.4 above, Customers can obtain current status reports in respect of such Downtime via the support portal on the Website, or as otherwise agreed between the parties.
7.6 Access to Emergency Services - The Customer acknowledges that Magnetic North OnDemand Services are provided using both PSTN and VoIP (Voice over Internet Protocol) services. Where VoIP services are used, which can occur even where the original call is dialled from a PSTN line, or where users can manually dial phone calls from VoIP handsets, softphones, IP PBX systems and other Computer devices, it is incumbent upon the customer to keep Magnetic North updated as to the location and address from which each service is used, especially where this address is different to the master billing address on the customers contract acceptance form, which will be used as the default address to be provided to Emergency Services where calls are made by the customer to 112, 999 or other Emergency service providers. The customer further acknowledges that Voice over IP services are dependent upon availability of electricity supply, internet connection and other communication components and therefore are not guaranteed to be available at all times, for example during a power cut or a failure of the Internet Connection.
8. Warranties and Liabilities
8.1 Magnetic North warrants that it is the sole and exclusive owner of the Intellectual Property Rights in the Software and reserves all its rights in relation to such Software.
8.2 Magnetic North warrants that it will provide the Services using all reasonable skill and care in accordance with the terms of this Agreement and that the Services will operate in all material respects in accordance with the Service Procedures.
8.3 Magnetic North shall use all reasonable endeavours to maintain the Software free of bugs and viruses but Magnetic North strongly recommends that the Customer should have its own effective anti-virus programmes.
8.4 Magnetic North does not and cannot control the network on which the technology operates or the flow of data to or from its network. Such flow depends largely on the performance of services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections. Although Magnetic North will use all commercially reasonable efforts to avoid such events and take all actions it deems appropriate to remedy such events, Magnetic North cannot guarantee that such events will not occur. Accordingly, Magnetic North cannot and does not warrant that the Services will be uninterrupted, error-free or entirely secure, and disclaims any and all liabilities resulting from or related to such events.
8.5 The Customer acknowledges that Magnetic North does not provide any back-up software or processing facilities covering equipment, data, operating systems or application software unless they are specified in the Service Procedures and the Customer agrees that Magnetic North will not be responsible or liable if, for any reason concerning any of these, the Services cannot be provided.
8.6 Magnetic North does not give any other warranties, guarantees or representations concerning the operational performance of the Services. The Customer is entirely responsible for deciding to select the services for its own business purposes and Magnetic North accepts no liability for any use to which the Customer puts the Services.
8.7 Each party represents and warrants to the other that it has obtained, where required by law or regulatory authority, all registrations, permits, licences and approvals as necessary in any relevant country for it to perform its obligations under this Agreement, or alternatively, that it is exempt from obtaining them. Upon request each party will provide the other with copies of all such registrations, permits, licences and approvals. Each party further warrants and undertakes to the other that in performing its obligations under this Agreement it will comply with all applicable national and local laws and regulations.
8.8 Magnetic North shall indemnify the Customer against any damages (including costs) that may be awarded by a court of competent jurisdiction to any third party in respect of any claim or action that the use of the Services in accordance with the terms of this Agreement infringes the Intellectual Property Rights of such third party (“Intellectual Property Infringement”) provided that the Customer shall:-
8.8.1 notify Magnetic North in writing of any Intellectual Property Infringement immediately upon becoming aware of the same;
8.8.2 give Magnetic North the sole conduct of the defence to any claim or action in respect of any Intellectual Property Infringement and not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the express written instructions of Magnetic North;
8.8.3 act in accordance with the reasonable instructions of Magnetic North and give to Magnetic North such assistance as it shall reasonably require in respect to the conduct of the said defence. Magnetic North shall reimburse the Customer its reasonable costs in complying with the provisions of this sub-clause.
8.9 The indemnity in clause 8.8 shall not apply to any Intellectual Property Infringement where the Intellectual Property Infringement was occasioned by the Customer’s use of the Services in conjunction with other apparatus or software which has not been supplied by Magnetic North nor where the Intellectual Property Infringement results from the use of the Customer's own design or specification. In such a case, the Customer shall indemnify Magnetic North against all claims, proceedings, costs, claims, demands and expenses arising from such Intellectual Property Infringement.
8.10 The indemnity in clause 8.8 states Magnetic North’s entire liability in respect to any Intellectual Property Infringement and it shall have no other liability whatsoever.
8.11 The Customer shall indemnify Magnetic North and keep Magnetic North fully and effectively indemnified on demand from and against any and all losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which Magnetic North may sustain or incur, or which may be brought or established against it by any person and which in any case arise out of or in relation to or by reason of:
8.11.1 any breach by the Customer of its obligations under this Agreement;
8.11.2 any unauthorised act or omission of the Customer its subcontractors or employees;
8.11.3 the manner in which the Customer its subcontractors or employees market or operate the Services;
8.11.4 the independent supply by the Customer its subcontractors or employees of any products or services for use in conjunction with or in relation to the Services; or
8.11.5 the content of the Customer’s Information.
8.12 Magnetic North shall have no liability for loss of profits nor for any indirect consequential incidental or special damage or loss of any kind (including without, limitation loss of contracts, business interruptions, loss of or corruption of data) howsoever caused and whether arising under contract, tort (including negligence) or otherwise.
8.13 Except in respect of death or personal injury caused by Magnetic North's negligence (which liability shall be unlimited), and save as otherwise provided in this Agreement, the entire liability of Magnetic North (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer whether in respect of any breach of any term of this Agreement or any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be as follows:
8.13.1 in respect of direct damage to the physical property of the Customer resulting from the negligence of Magnetic North, its employees or agents, the liability of Magnetic North shall not exceed £1,000,000 in respect of any one event or series of connected events; and
8.13.2 in all other cases, the liability of Magnetic North shall not exceed the aggregate total payments received by Magnetic North during the 12 month period preceding the occurrence of the event giving rise to liability.
9. Limitations on Use
9.1 Magnetic North reserves the right to deny any Customer access to the Services on reasonable grounds, including but not limited to any breach by a Customer of any term of this Agreement. Magnetic North shall notify the Customer of any such refusal promptly by telephone or e-mail and then confirm it in writing.
9.2 If at any time the Customer's access to, or use of, the Services is not in compliance with any applicable law or regulation, the Customer will be in breach of this Agreement, and Magnetic North shall be entitled at its sole discretion to terminate this Agreement on notice in writing and to discontinue the Services in respect of the Customer. The Customer acknowledges and agrees that Magnetic North is entitled to report such a breach or non-compliance to any relevant regulatory body or agency, and that Magnetic North will not incur any liability to the Customer as a result of the breach, the non-compliance, or Magnetic North's reporting of it.
9.3 In addition to any other remedies available at law or in equity and without prejudice to its rights under this Agreement, Magnetic North shall have the right to suspend the Services immediately if deemed reasonably necessary by Magnetic North in order to protect the proper interests of the Magnetic North or of its other customers. If practicable and depending on the nature of the reason for such suspension, Magnetic North may, in its absolute discretion, give the Customer an opportunity to remedy the situation. In such case, if the Customer remedies the situation, Magnetic North will promptly restore the Services.
10. Privacy Statement
10.1 Magnetic North is committed to protecting a Customer’s privacy. It will only use the information that it collects about a Customer lawfully (in accordance with the Data Protection Act 1998).
10.2 Magnetic North collects information about Customers for the purposes of processing customer orders and to providing its Services. Magnetic North may use Customer information as part of any report or publication without revealing any personal information of the Customer.
10.3 The information Magnetic North holds about Customers can be checked, updated and corrected by the Customer by logging on to the support portal of the Website. If Customer finds any inaccuracies in such information it shall promptly correct them via the Website or by notifying Magnetic North by email at contact@MagneticNorth.com.
10.4 The personal information that Magnetic North holds will be held securely in accordance with Magnetic North ’s internal security policy. If Magnetic North intends to transfer Customer’s information outside the EEA (European Economic Area) Magnetic North will obtain the Customer’s prior consent.
11. Links
Magnetic North may provide links to other World Wide Web sites or resources but is not responsible or liable, directly or indirectly for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Magnetic North is not responsible or liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
12. Proprietary Rights
12.1 The Customer acknowledges and agrees that the Services and any necessary software used in connection with the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorised by Magnetic North , the Customer agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part.
12.2 The Customer agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services, or any benefits of being a Magnetic North Customer.
13. Unlawful Use
The Customer shall not to use the Services to transmit or receive any material which would contravene the laws of England (which, without prejudice to the generality of the foregoing, shall specifically include conduct contrary to the COMPUTER MISUSE ACT 1990 or the TELECOMMUNICATIONS ACT 1984, or the DATA PROTECTION ACT 1998, or the OFCOM or ICSTIS codes of practice or the lawful requirements of any existing or future regulatory body) or any equivalent, comparable or similar rules, regulations or laws in any applicable jurisdiction. ANY BREACH OF THE ABOVE WILL RESULT IN THE TERMINATION OF ALL SERVICES AND MAY AS A CONSEQUENCE RESULT IN CRIMINAL PROSECUTION.
14. Notices
All notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by written notice. Any notice may be delivered personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when despatched.
15. Term and Termination
15.1 This Agreement shall commence on the date of this Agreement and shall continue for the Rental Period. Such Rental Period will be automatically extended by Magnetic North on behalf of the Customer for further periods of similar duration unless the customer serves notice prior to the expiry of the Rental Period (or any renewal) by giving to Magnetic North not less than 1 months' written notice expiring on the last day of the Rental Period (or any renewal thereafter) after the date of receipt of such notice, but shall be subject to earlier termination as provided in this Agreement. For the avoidance of doubt, if this Agreement is terminated for any reason during the Rental Period (other than by the Customer under clauses 15.4 or 15.5 below) the Customer shall remain liable to Magnetic North for the Charges in respect of the entire Rental Period (irrespective of whether or not Services are provided to it for the entire Rental Period) and any sums due to Magnetic North for the entire Rental Period shall immediately become payable in full.
15.2 Magnetic North may immediately terminate this Agreement or, at its option, suspend the Services at any time on written notice in the event that a Customer breaches any of the terms of this Agreement. In the event of suspension or termination of the Services under this clause 15.2 Magnetic North will give no refund of Charges.
15.3 Magnetic North reserves the right to terminate this Agreement or suspend the Services without notice upon rejection of any direct debit payment request or credit card charges or if a Customer’s card issuer seeks return of payments previously made to Magnetic North, when Magnetic North in good faith believes the Customer is liable for the Charges. Such rights are in addition to and not in lieu of any other legal rights or remedies available to Magnetic North.
15.4 This Agreement may be terminated by the Customer on written notice if Magnetic North commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the Customer so to do, to remedy the breach (such request to contain a warning of the Customer's intention to terminate).
15.5 Either party immediately on giving written notice to the other if the other party has a receiver or administrator or administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other party enters into any voluntary arrangement with its creditors or becomes subject to an administration order or becomes insolvent according to the laws of the country in which the party is established.
15.6 If the Services to be provided under this Agreement are suspended for any reason, Services can only be reinstated at the sole discretion of Magnetic North.
16 General
16.1 Notwithstanding anything else contained in this Agreement, Magnetic North shall not be liable for any delay in performing its obligations if such delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by any act or omission of the other party).
16.2 This Agreement together with any documents referred to in this Agreement sets out the entire agreement and understanding between the parties and supersedes all prior agreements, understandings or arrangements (oral or written) in respect of the subject matter of this Agreement. No waiver or amendment of any provision of this Agreement shall be effective unless made in writing and signed by an authorised representative of both parties.
16.3 The Customer acknowledges that it has entered into this Agreement in reliance only on the representations, warranties promises and terms contained in this Agreement and, save as expressly set out in this Agreement, Magnetic North shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
16.4 To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
16.5 Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
16.6 This Agreement shall be governed by and construed in accordance with English law. Each of the parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England.
IN WITNESS of these matters this document has been executed by the parties on the date set out at the beginning of this Agreement.
The authorised signatory of the Customer has signed the Hosted Service Activation Form to indicate acceptance of the terms of this agreement.
SCHEDULE 1 - SERVICES
Software: Hosted OnDemand Maximise – Outbound Dialling Solution or Hosted OnDemand Optimise - Call Recording or Click to Call as defined on the Hosted Service Activation Form
Permitted Maximum Number of Users: As specified in the Hosted Service Activation Form
User Manuals / Documentation to be Provided: All As Required from http://support.magneticnorth.com
Support and Maintenance: Standard Magnetic North “Business Hours” support by telephone and internet, not on site
Rental Period: Commitment period as specified in the Hosted Service Activation Form, thereafter rolling on a one month basis, which can be cancelled by the Customer in writing with 1 months notice.
SCHEDULE 2- CHARGES
Collected via Direct Debit on Setup for Setup and Rental. To accelerate setup process the Customer may alternatively BACS or CHAPS this payment to Magnetic North whilst their Direct Debit mandate is being setup.
Collected via Direct Debit monthly in arrears on 1st of the Calendar Month for Call Charges for the previous month and rental for the next month due.
Setup, Monthly Service and Call / Usage Charges as specified in the Hosted Service Activation form.
A complete list of call destinations and retail call rates is available at
http://ondemand.magneticnorth.co.uk/OUTBOUNDDIALLING/Costs/tabid/327/Default.aspx
Charges in this table are over-ridden by any rates specified in the Hosted Service Actions form for the Tariff which the Customer subscribes to.
SCHEDULE 3 - TECHNICAL ENVIRONMENT
Customer to provide a DDI number and phone with headset per user or VOIP Phone to Magnetic North's specifications and a dedicated PC Workstation per concurrent user with Windows 2000 or XP and Internet Explorer with a broadband internet connection to Magnetic North’s servers.
SCHEDULE 4
ADDITIONAL CHARGES
Maximise OnDemand Dialler - For each additional concurrent user logged in over and above the committed value for Maximise ON Demand Dialler during each calendar month by the customer, Magnetic North will charge a monthly rental at two times the agreed monthly rental cost detailed in the Hosted Service Activation form.