1.1 The following words shall, unless the context requires otherwise, have the following meanings:
"Agreement" means these conditions (the "Conditions"), the Customer Application Form which shall form the entire Agreement between Output Digital and Customer;
"Access Provider" means the telecommunications network operator enabling connection to the Services;
"Act" means any other relevant legislation as modified from time to time; "BT" means British Telecom;
"Business Day" means every day excluding Saturdays, Sundays and Public and Bank Holidays in Northern Ireland;
"Callservice" means Output Digital's carrier pre-select and/or leased cost routing telecommunications service;
"Call Charges" means the charges payable by the Customer monthly in arrears for use of the Services logged by Output Digital and calculated in accordance with the relevant Tariff Sheet;
"Charges" mean the Call Charges, the Fixed Charges, the Connection Charge and the Committed Spend and/or any other monies due and payable by the Customer to Output Digital Communications in respect of the Services;
"Committed Spend" means the amount of the Customer's estimated minimum spend in respect of call charges for each month of the Contract Term specified in Part 9 of the Customer Application Form;
Connection Charge" means the charges set out in the Tariff Sheet and as identified as the Tariff Plan detailed in section 6 of the Customer Application Form, for the connection of each piece of equipment and/or Exchange Line to a network;
"Contract Term" means the period of time set out in section 9 of the Customer Application Form, calculated as commencing on the Operative Service Date. If no period of time is set out in section 9 of the Customer Application Form, the Contract term begins on the Operative Service Date and expires on the first anniversary of that date;
"Customer" means the company, organisation or individual named as the Customer in section 1 of the Customer Application Form;
"Customer Application Form" means Output Digital's official stationery signed by an authorised signatory of both parties and setting out in writing the customer's requirements for and specific details relating to the Services;
"Customer's Equipment" means any equipment owned and maintained by the Customer and used in connection with the Services;
"Equipment" means any apparatus or equipment owned by Output Digital and supplied to the Customer to facilitate the provision of the Services;
"Fixed Charges" means a fixed charge levied as a regular subscription fee in respect of the WLR Service payable by the Customer to Output Digital monthly in advance;
"Force Majeure" means any circumstances beyond a party's reasonable control affecting the performance of their obligations under this Agreement including but not limited to acts of God, fire, flood, explosion, accidents, war, acts of terrorism, labour disputes, strikes, lock outs, embargo, subcontractor delays, acts of government, state of emergency, riots, civil commotion, malicious damage, government actions and any other similar events;
"Further Contract Term" means the period(s) equal in length to the Contract Term;
"Group" means, in relation to any company, that company and any other company which, at the relevant time, is a parent undertaking and/or subsidiary undertaking of that company (as defined by section 1162 of the Companies Act 2006) and a "member" of a group has the corresponding meaning;
"Network" means any telecommunications network that Output Digital may use in order to provide the Customer with the Services;
"Non-Geographic Number" means any telephone number used by Output Digital to deliver calls to the Customer allowing a revenue share to be generated for the Customer by some or all of the calls;
"Offending Material" means any material, data, images or information that is: (i) in breach of any law, regulation, code of practice or the Use Policy; and/or
(ii) abusive, indecent, defamatory, immoral, offensive, obscene or menacing or otherwise offensive; and/or
(iii) fraudulent or which has any illegal or unlawful purpose;
"Premises" means the building at which the Customer conducts its business and to which the Services are connected and this definition shall include any building to which the Customer relocates and at which it takes the Services;
"Output Digital" means Creative Online Media Ltd trading as Output Digital, The Ideas Factory, Portside Business Park, Airport Road West, Belfast, Northern Ireland. BT3 9ED.
"Services" means the Call service and/or WLR telecommunications services provided to the Customer by Output Digital under and in accordance with this Agreement and/or any other products and/or Services provided by Output Digital to the
Customer from time to time;
"Tariff Sheet" means the list of fixed charges, call charges and other applicable charges (available on request);
"Use Policy" means Output Digital's terms and conditions of use of the Services as issued by Output Digital and published on Output Digital's website from time to time; and WLR" (Wholesale Line Rental) means the telecommunications service where Output Digital provides access to the network directly rather than through an Access Provider and leases to the Customer the telephone lines within the Network across which the Customer's voice telephone callsare routed in addition to routing those voice telephone calls across those lines;
"Operative Service Date" means the date when WLR and/or Callservice transfers to Output Digital Communications.
2.1 These Conditions shall govern the Agreement between Output Digital and the Customer to the exclusion of any other terms and conditions and will supersede all previous conditions notified to the Customer.
2.2 Customer Application Forms executed by the Customer leading to an Agreement which is not expressed to be subject to these Conditions shall still be subject to them.
2.3 No verbal warranties or representations shall bind Output Digital. The Customer acknowledges that it does not rely on any representation and/or warranty not contained in these Conditions.
2.4 Details in specifications, brochures and the tariff sheet are intended as a guide only and only give a general approximation of the Services.
2.5 The Customer confirms and agrees that it has not relied upon the details and information detailed on Output Digital's website www.outputdigital.com or contained in Output Digital's brochure or other sales literature unless it has sought and obtained written confirmation from Output Digital of its accuracy.
2.6 If there is any conflict between the terms of these Conditions and the terms of any Customer Application Form the terms of these Conditions will take precedence.
2.7 This Agreement will come into effect upon Output Digital's acceptance of the Customer's application for the Services (which acceptance shall occur upon the earlier of Output Digital's signature of this Agreement, express consent provided by email or phone, or Output Digital's provision of the Services to the Customer) and will continue until terminated in accordance with clause 7 of these Conditions.
3.1 Where appropriate, Output Digital will make the arrangements to transfer the Customer to the Service. The Customer authorises Output Digital to arrange the termination of the Customer's existing contract for equivalent services with its existing telecommunications service provider and to obtain any information from the Customer's existing telecommunications services provider. Output Digital does not guarantee that the Services will be ready by any particular date and shall not be liable for any failure to provide the Services by any estimated date.
3.2 Output Digital will provide the Services with all due care and skill in accordance with this Agreement.
3.3 The Customer accepts and acknowledges that the provision of the Services may be affected by things outside of Output Digital's control including without limitation faults in the Network. The Customer accepts and acknowledges as reasonable that Output Digital cannot guarantee that the services will operate error or fault free all of the time.
3.4 The provision to the Customer of the Services is dependent upon the acquisition of any and all consents, approvals and authorities necessary from the Customer's existing telecommunications service provider and Output Digital will not be liable for any inability or delay in obtaining any such consents, approvals or authorities.
3.5 Output Digital, acting reasonably and without unreasonable delay, may refuse to connect the Customer to the Services if any of the information provided by the Customer is inaccurate, incomplete or misleading and/or the Customer does not satisfy Output Digital's Customer criteria.
Output Digital will notify the Customer as soon as reasonably possible after making any decision of such non-satisfaction. Output Digital reserves the right to perform a credit check with no prior given notice on any legal entity.
3.6 The Customer is responsible for providing Output Digital with all necessary information required by Output Digital to fulfil the obligations of this sgreement and for ensuring the accuracy of that information. The Customer must inform Output Digital immediately of any changes to the information provided to Output Digital including any change of address.
3.7 Output Digital may, at any time without notice, vary the Services as Output Digital deems appropriate provided that this does not adversely affect the functionality of the Services in any material way.
3.8 The Customer will, at Output Digital's request, arrange for the Customer's Equipment to be reprogrammed by Output Digital's designated maintainer. The Customer accepts as reasonable and acknowledges that Output Digital will have no liability to the Customer in respect of such reprogramming.
3.9 The Customer shall provide Output Digital (without charge) with all assistance and/or facilities that are required to enable Output Digital to supply the Services and fulfil its obligations under this Agreement.
3.10 Output Digital will provide fault-handling and resolution services, on condition that: 3.10.1 the Customer notifies Output Digital within 48 hours of discovering a fault;
3.10.2 if Output Digital does not find any fault in the Services, or considers the fault to have been caused by the Customer, Output Digital may charge for any costs incurred in carrying out any maintenance or repair.
3.11 If it is necessary to carry out scheduled or unscheduled maintenance, or to suspend the Services temporarily, Output Digital will endeavour to provide reasonable notice to the Customer, wherever reasonably possible.
3.12 Output Digital cannot guarantee that the Access Provider will not charge the Customer for any calls, nor can Output Digital guarantee that the Access Provider will route any call to the Network. The Customer remains liable to the Access Provider for charges levied against the Customer by the Access Provider.
3.13 Where the Customer requests WLR, Output Digital will, at the Customer's cost (as specified on the Tariff Sheet) and request, use all reasonable endeavours to arrange for a standard entry to be made into the appropriate BT telephone directories detailing the Customer's contact information.
3.14 Once the Customer has been connected to the Services, any telephone voice calls made by the Customer over a network owned and controlled by BT using any override code will be charged to the Customer by BT at BT's then current rates for such calls.
3.15 The Customer acknowledges that any call barring features requested in conjunction with the WLR part of the Services may take up to 15 Business Days from the date of the Customer Application Form to activate.
3.16 If the Customer intends to relocate its Premises the Customer must provide Output Digital with at least 30 days' notice in writing prior to such relocation. Following such notice Output Digital will, at no extra charge to the Customer, use all reasonable endeavours to disconnect the callservice from the Premises and re-connect the Callservice to the Customer's new Premises and this Agreement will continue unaffected. Re-connection charges for Services other than Callservice will apply as specified on the Tariff Sheet. Where the Customer's new Premises are in a location at which Output Digital is unable to provide the Services due to technical reasons Output Digital and/or the Customer may cancel without liability this Agreement. The Customer remains responsible for all charges up to the point that the Services are disconnected. Termination by the Customer in relation to a relocation of its Premises or otherwise, other than as expressly permitted by this clause, will be dealt with in accordance with clause 7.5 of these Conditions.
4.1 The Customer must not use the Services:
4.1.1 to send any messages or communications which contain Offending Material; and/or
4.1.2 to intentionally harass, annoy, inconvenience or cause anxiety to any person.
4.2 The Customer will, during each month of the Contract Term, use and pay Output Digital for Services which are equal to or more than the
4.3 The Customer's continued use of the Services is on condition that the Customer:
4.3.1 follows all reasonable instructions that Output Digital may provide for the provision and operation of Services from time to time;
4.3.2 complies with all relevant provisions of the Use Policy and any and all relevant law, code of practice, regulation, or any direction of the Office of Communications or other competent authority, and any licence which governs the running of the Customer's own telecommunications system;
4.3.3 shall ensure that the Customer's Equipment is in good working order, of correct specification and conforms to the relevant standard of approval for the time being designated under relevant law;
4.4 Output Digital will carry out any work required, by appointment between 9.00am and 5.00pm, on Business Days. If the Customer requires Output Digital to carry out work outside these hours, Output Digital reserves the right to charge the Customer for Output Digital's costs incurred in such work at its then current hourly "out of hours" rates.
4.5 Where the Customer has reported a fault and no Equipment is installed, the Customer will allow Output Digital's designated maintainer to check the Customer Equipment. Output Digital may charge the Customer for any work undertaken in respect of a fault where the fault was not Output Digital's responsibility at Output Digital's then current hourly rates.
4.6 All rights in the allocated telephone numbers will remain with Output Digital and the Customer shall have no rights in any number that Output Digital allocates to the Customer. The Customer is not permitted to register allocated numbers as a trademark or assert ownership of any other rights, including without limitation intellectual property rights, in respect thereof, and the Customer will not sell or agree to transfer them to anyone else.
4.7 Output Digital may modify or amend any telephone numbers given to the Customer or introduce additional access codes.
4.8 The Customer will not act or rely upon the provision to it of a specific Non-Geographic Number until it has received confirmation from Output Digital that the Non-Geographic Number has been obtained and allocated to it.
5.1 If the call charges in any month fall below the agreed Committed Spend, the Customer will, if requested to do so by Output Digital, pay Output Digital the amount which is the difference between the actual call charges for that month and the Committed Spend.
5.2 Output Digital may increase the Charges. The Customer will be informed in writing by Output Digital of any increases in Charges not less than 30 days before such increase takes effect. The Customer may cancel without liability any Agreement in relation to which the Charges are to be increased provided that the notice of cancellation is received by Output Digital before the price increase becomes effective. If the Customer does not cancel the Agreement for the provision of the Services within the specified time period then the increase in Charges shall take effect. The Customer remains responsible for all Charges up to the point that the Service is disconnected.
5.3 If Output Digital is not paid for minutes generated to the Customer's Non-Geographic Numbers, Output Digital will make no payment to the Customer in respect of those minutes.
5.4 If there are any changes to the rate that Output Digital is paid for minutes generated to the Customer's Non Geographic Numbers, Output Digital may reduce the payment made to the Customer in relation to those minutes. If the change in the rate paid to Output Digital is backdated, the change in rate to the Customer will also be backdated.
5.5 All Charges due must be paid within 14 days of the date on the invoice, by the agreed payment method as specified on the Customer Application Form. With the exception of Charges disputed by the Customer in accordance with clause 5.11 below, all Charges payable by the Customer shall be paid in full without any deduction or set-off, withholding or counterclaim and any undisputed part of a disputed invoice shall be paid by the Customer in accordance with Part 9 of these Conditions.
5.6 Output Digital does not accept responsibility for delays in the billing of any Charges and any delay will not alter the Customer's liability to pay the Charges.
5.7 Output Digital may charge the Customer a re-connection fee of £100, where the Customer has been disconnected, or suspended for non-payment and/or for any other breach of this Agreement by the Customer.
5.8 Output Digital may charge the Customer any additional administration charges, as listed in the Tariff Sheet, incurred where the Customer pays Output Digital's invoices other than by way of Direct Debit.
5.9 If the Customer fails to make any payment in full on the due date Output Digital may charge the Customer any reasonable additional administration costs and/or interest (both before and after judgment) on the amount unpaid at the rate of 4% above the base rate from time to time of Ulster Bank Ltd.
5.10 Any monies received by Output Digital from the Customer may be applied by Output Digital at its option against any additional administrative costs and/or interest charged prior to application against any principal sums due from the Customer against which it may be applied in any order.
5.11 In the event that the Customer wishes to dispute an item on the invoice, the Customer must do so in writing within 14 days of receipt of the invoice. The Customer must promptly pay any undisputed element of the invoice. The notice must set out in detail the nature of the dispute and copies of any supporting documentation as appropriate. Output Digital will determine the disputed item acting reasonably and Output Digital's response and/or decision will be final and binding on the Customer.
5.12 All Charges are exclusive of VAT at the then prevailing rate for which the Customer will be additionally liable.
5.13 Output Digital will, in its sole discretion, determine and vary the Customer's credit terms.
5.14 The Customer remains liable for all Charges due under this Agreement even if Services have been suspended, disconnected or terminated for non-payment, or the Customer has transferred the number(s) to another telecommunications provider. The Customer shall also remain liable for all Charges due under this Agreement where the Customer has terminated its Contract with Output Digital to transfer to another telecommunications provider and the Customer is still receiving Services from Output Digital during any transfer period.
5.15 The Customer is responsible for the payment of calls made using the Customer's telephone lines. The Customer remains liable for any charges incurred through the use of the Services by any third party.
5.16 Call charges shall be calculated by reference to data recorded or logged by Output Digital and not by reference to any data recorded or logged by the Customer, nor by reference to any information provided by Output Digital to the Customer for information purposes only.
6.1 Output Digital may suspend provision of the Services immediately and without notice or liability to the Customer if:
6.1.1 Output Digital has reasonable grounds to suspect that the Customer is using the Service in contravention of the provisions of clause 4.1 above; and/or
6.1.2 the Customer has breached its credit terms; and/or
6.1.3 the Customer does not make any payment to Output Digital when due;
6.1.4 Output Digital has reasonable grounds to believe that the Customer will not and/or is unable and/or unwilling to make payment when due to Output Digital;
6.1.5 Output Digital has reasonable grounds to believe that the Customer is, has or may be involved in criminal activity or any other activity which in Output Digital's reasonable opinion may be materially detrimental to and/or have a materially adverse effect on Output Digital's business and/or reputation.
6.1.6 Output Digital is obliged to comply with an order, instruction or request of a court government body, regulatory authority or other administrative or legal entity;
6.1.7 the Customer's direct debit instruction fails and/or is cancelled.
6.2 During suspension of the Service, the Customer will have to pay all Charges due and any other reasonable costs and expenses that Output Digital may incur as a result of such suspension, together with any re-connection fee leviable by Output Digital in accordance with clause 5.7 above for any subsequent reinstatement of the Services.
7.1 The Customer may terminate this Agreement at any point during the Contract Term or any Further Contract Term by giving 30 days written notice to Output Digital. In the event that the Customer fails to provide notice of termination, the Agreement will continue for successive periods of one calendar month after the end of the Contract Term ("Successive Period(s)") until the earlier of (i) the Customer giving notice to terminate the Agreement; or (ii) the Customer agreeing to enter into a Further Contract Term.
7.2 Where termination in accordance with clause 7.1 takes effect other than during the Successive Period(s) or other than on the last day of the Contract Term or any Further Contract Term, the Customer will pay Output Digital in accordance with clause 7.6. Upon termination in any circumstance, whether during the Successive Period(s) or otherwise, and by any party, the Customer will promptly pay Output Digital all Charges outstanding and due to Output Digital at the point of termination.
7.3 Within the last six months of the Contract Term or any Further Contract Term, Output Digital shall inform the Customer of the expiry date of the Contract Term or Further Contract Term to allow the Customer sufficient time to respond indicating consent for renewal of the Agreement for a Further Contract Term. For the avoidance of doubt, should such consent fail to be provided by the Customer, Output Digital shall continue to provide Services to the Customer on the periodic basis set out in clause 7.1 and the Customer shall have the right to terminate the Agreement by written notice and without penalty during these Successive Period(s).
7.4 Either party may terminate this Agreement and/or Customer Application Form immediately on notice to the other party if:
7.4.1 the other party is in material breach of this Agreement and the breach is incapable of remedy;
7.4.2 the other party is in material breach of this Agreement and the breach has not been remedied within 14 days of the other party's notice requiring the breach to be remedied. For the avoidance of doubt, any failure by the Customer to make payment on or before the due date for payment comprises material breach for the purposes of this Agreement;
7.4.3 (where the terminating party is Output Digital), where the Customer pledges or charges any equipment which remains the property of Output Digital, or (in relation to either party) where the other party ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim order under Section 123 Insolvency Act 1986 or has a bankruptcy petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction; and/or
7.4.4 the other party experiences an event of Force Majeure for a continuous period of 3 months. 7.5 Output Digital may terminate this Agreement:
7.5.1 from the end of the Contract Term or a Further Contract Term by giving thirty days' written notice; or
7.5.2 at any time, immediately upon notice, if it is required to terminate this Agreement by law or regulatory authority.
7.6 Where either (i) the Customer terminates this Agreement on notice in accordance with clause 7.1, and such notice expires to terminate this Agreement other than during the Successive Period(s) or other than on the last day of the Contract Term or any Further Contract Term; and/or (ii) Output Digital terminates this Agreement in accordance with clause 7.4, the Customer will pay Output Digital within 14 days of the termination date:
7.6.1 the difference between the Fixed Charges which had been paid by the Customer at the actual date of termination and the Fixed Charges that would have been payable if the Agreement had not terminated before the expiry of such Contract Term or Further Contract Term; and
7.6.2 the Committed Spend for each full month remaining in the Contract Term or Further Contract Term in which termination occurs, plus a sum equal to the Committed Spend prorated to the number of days in any part month remaining in such Contract Term or Further Contract Term; and the Customer undertakes to pay these sums by way of liquidated damages, and acknowledges that such amounts represent a genuine pre-estimate of Output Digital's loss arising directly as a result of early termination of this Agreement by the Customer.
7.7 The Customer shall not be obliged to pay any amount described in clause 7.6 where: 7.7.1 no Contract Term has been specified on the Customer Application Form; or
7.7.2 the Contract has been terminated by the Customer in accordance with clause 3.16, 5.2 or 7.4 above; or
7.7.3 the Contract has been terminated by Output Digital in accordance with clause 7.5 above.
7.7.4 the Contract has been terminated by the Customer during the Successive Period(s) in accordance with clause 7.3 above.
7.8 Termination of this Agreement as a whole will operate to automatically terminate any Customer Application Form then in force.
Termination of a Customer Application Form will not, unless expressly stated otherwise in the relevant notice of termination, operate to terminate this Agreement as a whole. Clauses 7, 8 and 9.12 shall survive termination of this Agreement.
8.1 With the exception of the Customer's obligation to pay the Charges, each party's total liability to the other party under this Agreement in relation to any claim arising whether under breach of contract, tort (including without limitation negligence and breach of statutory duty) or otherwise shall not exceed in the aggregate £1,000,000. Save for any warranty or representation expressly given by Output Digital in this Agreement, Output Digital excludes all warranties and representations (whether express, or implied by statute, common law or in any other way) to the fullest extent permitted by law.
8.2 Neither party will be liable to the other for any:
8.2.1 loss of profits, loss of data and/or damage to goodwill;
8.2.3 economic and/or similar losses;
8.2.3 business interruption, loss of business, contracts, opportunity and/or production;
8.2.4 any special, incidental, indirect or consequential losses (whether or not such loss or damage is of the type specified in clause 8.2.1 to 8.2.3 inclusive above).
8.3 Output Digital shall have no liability to the Customer in respect of any act or default or delay by BT, the Access Provider, any other communications provider and/or any regulatory authority in carrying out their obligations necessary to enable the provision of the Services and/or in respect of the entry of the Customer's number in any telephone directory compiled by BT or for any error made in relation to such an entry.
8.4 Output Digital will have no liability to the Customer for any fault or defect where the fault or defect has been caused by the Customer.
8.5 The Customer shall give Output Digital a reasonable opportunity to remedy any matter capable of remedy for which Output Digital is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so Output Digital shall have no liability to the Customer.
8.6 Output Digital shall have no liability for damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer's continued use of defective or faulty Services after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
8.7 Output Digital shall have no liability for any costs, expenses, charges, losses and/or fees incurred by the Customer as a result of non-compliance with clause 4.8 by the Customer.
8.8 Each of the limitations and exclusions in this Agreement shall be deemed to be repeated and apply as a separate provision for each of:
8.8.1 liability for breach of contract;
8.8.2 liability in tort (including negligence);
8.8.3 liability for breach of statutory duty; and
8.8.4 liability for breach of common law except clause 8.1 which shall apply once only in respect of all the said types of liability.
8.9 The Customer indemnifies and will keep indemnified Output Digital against any and all losses or liabilities including but not limited to expenses, costs (including increased administration costs and all legal costs on a full indemnity basis), claims (whether actual or threatened), proceedings, actions, demands, judgments, awards, damages, lost profits and other losses or liabilities incurred directly or indirectly by Output Digital directly or indirectly as a result of any:
8.9.1 breach of contract, tortious act and/or omissions (including negligence) breach of statutory duty or Common Law by the Customer; and/or
8.9.2 claim by a third party that the Customer's use of the Services infringes any rights of that third party.
8.10 The Customer will be liable under this Agreement for the acts and/or omissions of its employees, agents, officers, managers, executives and/or subcontractors (whether or not they remain as the Customer's employees, agents, officers, managers, executives and/or subcontractors) as if they were the Customer's own acts and/or omissions under this Agreement.
8.11 The Customer shall be under a duty to mitigate any loss, damage, costs and/or expenses that it may suffer.
8.12 Notwithstanding any other provision of this Agreement, nothing in this Agreement will limit or exclude either party's liability for death or personal injury caused by that party's negligence or any liability due to that party's fraud or for any other liability which that party is not permitted to exclude or limit as matter of law.
9.1 Neither party shall have any liability to the other party for any delay in performance of this Agreement (other than in relation to payment) to the extent that such a delay is due to an event of Force Majeure. If a party is affected by any such event then time for performance shall be extended for a period equal to the period that such an event or events delayed such performance. If the event of the Force Majeure subsists for a continuous period exceeding 3 months then either party may terminate this Agreement without liability in respect of such termination.
9.2 Output Digital may vary these Conditions at any time upon service to the Customer of no less than 5 Business Days written notice where Output Digital is required to do so in order to comply with new laws, rules and/or regulations, by the Office for Communications or any other regulatory body and/or any changes to Output Digital's telecommunications licence.
9.3 Except to the extent permitted by this Agreement (including without limitation in accordance with clause 9.2 above), no variation to this Agreement shall be effective unless in writing and signed by an authorised signatory of both the Customer and Output Digital respectively.
9.4 No waiver by Output Digital or any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
9.5 The Customer may not transfer the benefits or the obligations under this Agreement to any other party without Output Digital's prior written consent and the Customer will not transfer, sub- license or resell the Services for use by a third party. Output Digital may assign its rights, obligations, benefits and/or burdens under this Agreement to any member of its Group in whole or in part upon notice to the Customer, or to any third party with the prior written consent of the Customer, such consent not to be unreasonably withheld or charged for.
9.6 Any notices which may be given by either the Customer or Output Digital under this Agreement must be in writing and must be delivered by hand or by pre-paid mail to the relevant registered office.
9.7 If any provision of this Agreement is held to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the unaffected provision shall be unaffected and remain in full force and effect.
9.9 All third party rights are excluded and no third party shall have any right to enforce this Agreement. This shall not apply to members of Output Digital's Group from time to time who shall, subject to Output Digital's consent, have the right to enforce this Agreement as if they were Output Digital. Any rights of a third party to enforce this Agreement may be varied and/or extinguished by Agreement between the parties to this Agreement without the consent of any such third party.
9.10 If a dispute arises between Output Digital and the Customer in respect of this Agreement and/or the Services, each party shall in the first instance promptly bring the dispute to the attention of the relevant parties. In respect of the Customer the relevant party will be the purchasing manager and in respect of Output Digital the relevant party will be the account manager responsible for the Customer's account with Output Digital.
9.11 If any dispute referred to the relevant parties under clause 9.10 has not been resolved within 5 Business Days of the date of the referral under clause 9.10 then the parties will refer to the Customer's and Output Digital's Financial Directors respectively.
9.12 This Agreement is governed by the law of Northern Ireland and the parties agree to submit disputes in connection with this Agreement to the exclusive jurisdiction of the Courts of Northern Ireland.
10.1 The Customer is responsible for the security of its equipment and the confidentiality of any and all security details and must take all necessary steps to ensure the same are kept confidential, secure and not made available to any unauthorised persons.
10.2 Output Digital does not guarantee the security of the Services against unauthorised or unlawful access or use.
10.3 Output Digital shall not be responsible for any third party activities in relation to use of the Services, including any fraudulent and/or criminal activities, and/or unauthorised access or use of the Equipment, the Customer Equipment and/or the System, and any costs arising from such activities shall be the responsibility of the Customer.
Back to top