Terms of Business

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Pastel Solutions Limited

Terms & Conditions For Mobile Services

The Customer’s attention is particularly drawn to the provisions of clauses 3, (Basis of Contract), 16 (Limitation of liability) and 17 (Termination).

1.            Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1          Definitions:

                Account: the Customer’s account for the provision of Services and/or Mobile Equipment under the Contract, arranged by Pastel which may or may not have a specific account number.

                Administration Fee: 10% of the remaining Gross Contract Revenue.

                Application Form: any application form issued by Pastel to the Customer detailing the Services and subsequently signed by or on behalf of the Customer.

                Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

                Buyout: has the meaning set out in clause 11.2.

                Cancellation Fees: the Term Fees (only in the case of MVNO Services), any cancellation fees payable under the Network Contract, the return of any Buyout paid by Pastel to the Customer, the return of any Deal Incentives paid by Pastel to the Customer and the recommended retail price (as at the Commencement Date) of any Mobile Equipment provided by or on behalf of Pastel to the Customer and the Administration Fee.

                Charges: the charges detailed at clause 9.

                Commencement Date: means the date upon which the Contract is signed by or on behalf of the Customer (including any electronic signature).

                Conditions: these terms and conditions as amended from time to time in accordance with clause 23.8.

                Contract: the contract between Pastel and the Customer that is made up of these Conditions and the Order for the supply of Services and/or Mobile Equipment.

                Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

                Customer: the party Pastel contracts with to provide the Services and/or Mobile Equipment.

                Deal Incentive: a monthly discount offered by Pastel to the Customer as against the charges under the Network Contract for the amount specified in the Order and for the period specified in the Order (where no period is specified in the Order the discount shall be payable until the Review point detailed in clause 19).

                Delivery Location: has the meaning given in clause 4.4.

                Fair Usage Policy: 3000 minutes to a UK landline or mobile number in any calendar month where Pastel is providing MVNO Services.

                Force Majeure Event: has the meaning given to it in clause 22.

                Gross Contract Revenue: means all revenue and income of any nature derived directly or indirectly from the Contract.

Line: a mobile communications telephone number commencing with the numbers 07.

                Minimum Period: the minimum period of the Contract of 12 months from the Commencement Date or the date of connection of the Services (whichever is the later) or such other longer period as may be specified in the Order or the Network Contract (including, but not limited to, a period referred to in the Order as contract length, length, term, minimum term, period or contract period). 

                Mobile Equipment: any mobile or wireless device, handset, tablet, USB data drive, data card, memory card, SIM card or similar device or card provided to the Customer under the Contract and or the Mobile Equipment Leasing Contract for use in connection with the Services.

                Mobile Equipment Leasing Contract: the mobile equipment leasing contract between the Customer and a third party whereby some or all of the Mobile Equipment detailed in the Order is provided to the Customer by a third party.

                MVNO Services: means services whereby Pastel are leasing telephone and data spectrum from a Network Provider acting as a mobile virtual network operator (under the name Pastel Solutions or any other name operated by Pastel Solutions Limited) and the provision of telecommunications and data services which do not require the Customer to enter in to a separate Network Contract in addition to the Contract.

                Network Contract: a contract entered or to be entered in to between the Customer and a Network Provider in addition to the Contract for the provision of Network Services

                Network Provider: means a third-party telecommunications network provider including, but not limited to EE Limited, Plan Communications Ltd, Vodafone Limited or Telefonica UK Ltd (O2).

                Network Services: the supply of telecommunications or data services provided by a Network Provider.

                Order: the Customer’s order for the supply of Services and/or Mobile Equipment, as set out in the Application Form or Purchase Order.

Pastel: means Pastel Solutions Limited incorporated and registered in England and Wales with company number 08697159 whose registered office address is at Lymedale Business Centre, Hooters Hall Road. Newcastle-under-Lyme, Staffordshire, ST5 9QF.

                Purchase Order: any purchase order issued by Pastel to the Customer detailing the Services and subsequently signed by or on behalf of the Customer.

                Services: the services supplied by Pastel to the Customer as set out in the Order including, but not limited to MVNO Services or the procurement of Network Services.

                Term Fees: in respect of MVNO Services, the fees calculated by multiplying the remaining number of months of the Minimum Period by the total Gross Contract Revenue.

1.2          Interpretation:

(a)       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b)       A reference to a party includes its personal representatives, successors and permitted assigns.

(c)       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 all subordinate legislation made under that statute or statutory provision.

(d)       Any words following the terms includingincludein particularfor example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Application of these Conditions

2.1 These Conditions apply to and form part of the Contract between Pastel and the Customer. They supersede any previously issued terms and conditions of purchase or supply.

2.2 Except as otherwise stated in these Conditions, no terms or conditions endorsed on, delivered with, or contained in Pastel’s quotation, sales conditions, confirmation of order, specification or other document shall form part of the Contract except to the extent that Pastel otherwise agrees in writing.

2.3          These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4          Any quotation given by Pastel shall not constitute an offer and is only valid for a period of 10 Business Days from its date of issue.

2.5         All of these Conditions shall apply to the supply of both Services and Mobile Equipment except where application to one or the other is specified.

3.            Basis of contract:  THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

3.1          The Contract starts on and is effective from the Commencement Date and shall continue until terminated by either party in accordance with these Conditions.

3.2          Where applicable and where a Network Provider rejects the Network Contract and/or refuses to enter in to the Network Contract (on or after the Commencement Date), the Contract shall remain in full force and Pastel may elect to provide the services in place of the Network Provider (on an MVNO basis) or shall use reasonable endeavours to procure Network Services from an alternative Network Provider on similar terms to the Network Contract whereupon the Customer shall be obliged to co-operate in entering in to an alternative Network Contract.  If the Customer refuses to sign an alternative Network Contract, contrary to this clause 3.2 or fails to do so within 14 days of a request by Pastel to sign an alternative Network Contract, Pastel shall be entitled to terminate the Contract and clause 17 shall apply.

3.3          Where a Network Provider insists on the payment of a deposit as a condition precedent to entering in to the Network Contract the Customer shall be liable to pay such deposit. If the Customer refuses to pay such deposit, contrary to this clause 3.3 or fails to do so within 14 days of a request by Pastel or the Network Provider, Pastel shall be entitled to terminate the Contract and clause 17 shall apply.

3.4          As part of Pastel’s credit management procedures, Pastel may at any time during the Contract require the Customer to pay a deposit or provide a guarantee as security for the payment of future invoices.  If the Customer refuses to pay a deposit or provide a guarantee (or fails to do so within 14 days of a request from Pastel), Pastel shall be entitled to terminate the Contract and clause 17 shall apply.

3.5          Pastel offers no warranty is given by Pastel in respect of mobile signal coverage and both parties acknowledge that each of the major Network Providers advertise 98 per cent or more network coverage in the United Kingdom and such coverage cannot be verified by Pastel.  The Customer acknowledges that prior to signing the Contract, the Customer has taken all reasonable steps to ensure that the mobile network being connected to under the Contract or Network Contract has sufficient signal or coverage in the Customer’s location or locations where the Customer desires a reliable mobile signal.

3.6          Notwithstanding clause 16 of these Conditions, Pastel may terminate the Contract, without any liability to the Customer, during the first 30 days from the Commencement Date for any reason whatsoever upon providing 7 days’ notice to the Customer.

4.            Mobile Equipment

4.1          The Mobile Equipment to be provided under the Contract shall be specified in the Order. The customer acknowledges that some or all of the Mobile Equipment may be provided under a Mobile Equipment Leasing Contract.

4.2          The provision of Mobile Equipment is subject to availability.

4.3          Subject to clause 4.6 of these Conditions, the Mobile Equipment shall be delivered within 30 days of the Commencement Date and if Pastel is unable to source or provide the Mobile Equipment within such period, Pastel may (subject to availability) provide the Customer with alternative mobile equipment on a temporary basis until the Mobile Equipment can be sourced or provided, or the Customer shall be entitled to have the Account credited to the equivalent value of Pastel’s trade purchase cost of the Mobile Equipment. Such credit to be made in accordance with clause 9 of these Conditions as though it were a Deal Incentive.

4.4          The Mobile Equipment shall be delivered to the location set out in the Order or such other location as the parties may agree (Delivery Location).

4.5          Delivery of the Mobile Equipment shall be deemed completed on the second business day after posting by Pastel or the Network Provider or on the second business day following the Mobile Equipment being collected from Pastel or the Network Provider by a courier with instructions to deliver to the Delivery Location.

4.6          Any dates quoted for delivery of the Mobile Equipment are approximate only, and the time of delivery is not of the essence. Pastel shall not be liable for any delay in delivery of the Mobile Equipment that is caused by a Force Majeure Event, delays caused by a third-party manufacturer (or supplier), or the Customer’s failure to provide Pastel with adequate delivery instructions or any other instructions that are relevant to the supply of the Mobile Equipment.

5.            Quality of Mobile Equipment

5.1          Pastel shall pass on the benefit to the Customer of any warranties it receives from the manufacturer of the Mobile Equipment, however no warranty is given by Pastel itself in respect of the Mobile Equipment.

5.2          The Customer acknowledges that any attempt to repair, service or tamper with the Mobile Equipment may invalidate the manufacturer’s warranty.

6.            Title and risk

6.1          The risk in the Mobile Equipment shall pass to the Customer on completion of delivery.

6.2          Subject to clause 6.3, title to the Mobile Equipment shall not pass to the Customer until the Contract is validly terminated in accordance with these Conditions and all sums due under the Contract, including but not limited to Cancellation Fees, have been paid by the Customer to Pastel.

6.3          Where the Customer has entered in to a Mobile Equipment Leasing Contract, in addition to the Contract, the Customer holds the Mobile Equipment as bailee and title to the Mobile Equipment shall pass (if at all) in accordance with the terms of the Mobile Equipment Leasing Contract.

6.4          Until title to the Mobile Equipment has passed to the Customer, the Customer shall: 

(a)       maintain the Mobile Equipment in satisfactory condition and keep it insured against all risks for its full price on Pastel’s behalf from the date of delivery;

(b)       notify Pastel immediately if the Customer becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(d); and

(c)       provide such information relating to the Mobile Equipment to Pastel as it may require from time to time.

6.5          If before title to the Mobile Equipment passes to the Customer, the Customer becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(d), then, without limiting any other right or remedy that Pastel may have, Pastel may at any time require the Customer to promptly deliver up all Mobile Equipment (including any alternative mobile equipment provided in accordance with clause 4.3) in its possession.

7.            Supply of Services

7.1          In consideration of the Customer paying the Charges and fulfilling all of its commitments as set out in the Contract, Pastel agrees to supply and the Customer agrees to receive the Services and/or the Mobile Equipment subject to the provisions of the Contract.

8.            Customer’s obligations

8.1          The Customer shall:

(a)       ensure that the terms of the Order are complete and accurate;

(b)       co-operate with Pastel in all matters relating to the Services and Network Services;

(c)       provide Pastel with such information and materials as Pastel may reasonably require in order to supply the Services (including, but not limited to, providing porting access codes to enable connection of the services) and/or the Mobile Equipment and ensure that such information is complete and accurate in all material respects; 

(d)       promptly notify Pastel of a change of address, change of registered office or change of trading location(s);

(e)       where applicable, comply with all terms of the Network Contract and/or the Mobile Equipment Leasing Contract including, but not limited to, the terms for payment of all charges and fees under the Network Contract and/or the Mobile Equipment Leasing Contract;

(f)        authorise the Network Provider to disclose all information to Pastel relating to the Network Contract;

(g)       if provided with 15 or more mobile devices under the Contract, set up on-line billing and not cancel on-line billing prior to the termination of the Contract;

(h)         return to Pastel a hardcopy of the signed Contract and where applicable the signed Mobile Equipment Leasing Contract within 14 days of the Commencement Date;

(i)         within 30 days of the Commencement date, send to Pastel all mobile phone handsets (together with any pass codes or words required to operate each handset) in the possession or ownership of the Customer which shall not be used or needed by the Customer for the provision of the Services under the Contract.

8.2          The obligations set out at clauses 8.1 (a) to (i) above are conditions of the Contract.  In addition to any other remedies that Pastel may have for a breach of those conditions by the Customer, whether set out in the Contract or otherwise, if the Customer breaches condition 8.1 (i) the Customer shall be liable to pay £250 to Pastel for each handset that is retained by the Customer (or £250 where the Customer has failed to provide a pass code or word or any such pass code or word provided is incorrect). Where Pastel is liable to pay Deal Incentives, Termination Fees or any other sums to the Customer, it may elect to set off those monies due against any sums due from the Customer under this clause 8.2.

9.            Charges and payment

9.1          In addition to the Charges detailed at clause 9.2 of these Conditions, the price for the Services and Mobile Equipment shall be the price set out in the Order or, if no price is quoted, the price set out in Pastel’s price list as at the Commencement Date.  The Customer acknowledges that certain charges may be payable directly to the Network Provider and/or where applicable to a third party under the Mobile Equipment Leasing Contract.  The price payable for additional services and out of bundle charges (unless indicated as inclusive in the Order), including but not limited to, bolt on services, call features, calls to international numbers, calls to the Channel Islands, roaming charges, calls to service numbers, calls to premium rate numbers, calls to 08 & 09 numbers, calls to 0845 & 0870 numbers, calls to 0500 numbers, calls to mobiles, calls to retrieve messages, internet calls, calls above the Fair Usage Policy, information and paging services, data usage, text messages, picture or multi-media messages shall be the price specified in Pastel’s price list in force at the time such additional services or out of bundle services are utilised.

9.2          The Customer shall pay £30 for each porting access code (pac code) requested in respect of each and any Line connected under the Contract or Network Contract and if such a request is made during the Minimum Period, clause 18.2 shall apply.

9.3          Pastel reserves the right to:

(a)       increase the Charges at any time, with any such increase taking effect upon the Customer signing a new Contract or upon the renewal of an existing Contract; and

(b)       increase the price of the Mobile Equipment, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Mobile Equipment to Pastel.

9.4          Pastel may invoice the Customer for Charges under the Contract.  Where applicable, Network Services shall be invoiced by and payable to the Network Provider. Where a Mobile Equipment Leasing Contract has been entered in to, the provider of Mobile Equipment under such contract shall invoice the Customer in accordance with the terms of the Mobile Equipment Leasing Contract. Pastel may invoice the Customer on a monthly basis for MVNO Services.

9.5          The Customer shall pay each invoice submitted by Pastel:

(a)       within 7 days of the date of the invoice; and

(b)       in full and in cleared funds to a bank account nominated in writing by Pastel by way of direct debit, failing which a payment processing fee of £6 per invoice shall be payable to Pastel by the Customer, and

time for payment shall be of the essence of the Contract. Where the Customer cancels a direct debit mandate to Pastel a cancellation fee of £15 shall be payable to Pastel by the Customer in respect of each instance of cancellation.

9.6          The Customer shall be liable to pay the Charges whether the Services are being utilised by the Customer or a third-party. This includes all Charges arising from unauthorised or fraudulent use.

9.7          Invoices shall be deemed to be undisputed and the Customer acknowledges that it shall not be entitled to dispute an invoice unless the Customer notifies Pastel in writing of any dispute (clearly identifying the reasons for the dispute) within 30 days of the date of the invoice.

9.8          All amounts payable by the Customer under the Contract, Network Contract or Mobile Equipment Leasing Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Pastel to the Customer, the Customer shall, on receipt of a valid VAT invoice from Pastel, pay to Pastel such additional amounts in respect of VAT as are chargeable on the supply of the Services or Mobile Equipment at the same time as payment is due for the supply of the Services or Mobile Equipment.

9.9       If the Customer fails to make a payment due to Pastel under the Contract by the due date, then, without limiting Pastel’s remedies under clause 17 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.9 will accrue each day at 8% per annum above the base lending rate from time to time of Bank of England compounding quarterly.

9.10       The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Pastel may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Pastel to the Customer.

10.            Deal Incentives

10.1          Where a Deal Incentive is specified in the Order, subject to clause 10.2, Pastel shall reimburse (or provide a credit in the case of MVNO Services) the Customer the amount of any Deal Incentive upon the Customer first providing Pastel with a VAT invoice from the Customer to Pastel for the amount of the monthly Deal Incentive (the value of the Deal Incentive specified in the Order shall be inclusive of VAT).  No invoice shall be required where Pastel are providing MVNO Services.

10.2         The Customer shall be liable to pay the Network Provider the full amount of all charges under the Network Contract irrespective of any Deal Incentive. Providing the Customer has not committed a breach of the Contract or any Network Contract or any Mobile Equipment Leasing Contract and upon receipt of an invoice in accordance with clause 10.1, Pastel shall reimburse or credit the Customer for the amount of the Deal Incentive. The payment under this clause 9 shall be made monthly in equal instalments starting with the first payment within 90 days of receipt of the Customer’s invoice issued in accordance with clause 10.1 (or credit 1 month from the connection of the services in the case of MVNO Services) and ending at the Review Point referred to in clause 19. For the avoidance of doubt, no Deal Incentive shall be due or payable after the Review Point. Where the terms of this clause 10 are inconsistent with the Order, this clause 10 shall prevail.

11.          Buyout

11.1       The Customer acknowledges that by entering into the Contract and/or the Network Contract, the Customer may have to pay termination or other charges to a Network Provider or third-party for cancelling or terminating a pre-existing contract with that Network Provider or third-party.

11.2       The Order may specify a sum that Pastel (if it so chooses) is prepared to reimburse the Customer to cover some or all of the termination charges referred to in clause 11.1 (Buyout).  Subject to clause 11.3 (or 11.4 in the case of MVNO Services), Pastel shall reimburse the Customer with the Buyout specified in the Order upon receipt of a VAT invoice from the Customer to Pastel for the amount of the Buyout (the value of the Buyout specified in the Order shall be inclusive of VAT). 

11.3       Notwithstanding this clause 11, the Customer shall remain responsible for any termination or similar charges referred to in clause 11.1 and no liability for such charges shall pass to Pastel. Providing the Customer has not committed a breach of the Contract or any Network Contract or any Mobile Equipment Leasing Contract (excluding any pre-existing contract for services similar to those provided under the Contract), and upon receipt of an invoice in accordance with clause 11.2, Pastel shall reimburse the Customer for the amount of the Buyout.  The reimbursement under this clause 11 shall be paid monthly in equal instalments over the Minimum Period and the first reimbursement payment shall be made by Pastel within 90 days of receipt of the Customer’s invoice issued in accordance with clause 11.2.

11.4          Contrary to clauses 11.2 and 11.3, where Pastel is providing MVNO Services and providing the Customer is not in breach of the Contract, Pastel may (if it so chooses) to reimburse the Customer with the Buyout amount specified in the Order (upon receipt of a copy invoice relating to the Buyout from the Customer’s previous supplier) by way of a pro rata credit to the Customer’s invoices over 4 months. By way of example, if the Buyout is for £1000, Pastel may credit the Customer’s invoice in the sum of £250 for 4 months.

11.5       Where Pastel, despite not being contractually obliged to do so, chooses to pay the Buyout sum (whether in a lump sum or instalments) to the Customer up front as opposed to by way of reimbursement, such Buyout sum paid by Pastel to the Customer shall be paid over to the Network Provider in respect of the pre-existing contract without delay.

12. Anti-Bribery

12.1 For the purposes of this clause 12, the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

12.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable to endeavours to ensure that:

12.2.1 all of that party’s personnel;

12.2.2 all others associated with that party; and

12.2.3 all of the party’s subcontractors;

Involved in performing the Contract so comply.

12.3 Without limitation to clause 12.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

12.4 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach or any of the requirements in this clause 12.

13. Anti-Slavery

13.1 The Customer undertakes, warrants and represents that:

13.1.1 neither the Customer nor any of its officers, employees, agents or subcontractors has:

(a) committed an offence under the Modern Slavery Act 2015 (MSA Offence);

(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or

(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

13.1.2 it shall comply with the Modern Slavery Act 2015;

13.1.3 it shall notify Pastel immediately in writing if it becomes aware or has reason to believe that it, or any of its offers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 13.1. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.

13.2 Any breach of clause 13.1 by the Customer shall be deemed a material breach of the Contract and shall entitle Pastel to terminate the Contract with immediate effect.

14. Indemnity and Insurance

13.1 The Customer shall indemnify, and keep indemnified, Pastel from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Pastel as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.

14.2 The Customer shall have in place contracts of insurance with reputable insurers to cover its obligations under the Contract. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable.

15.          Confidentiality

15.1       Each party undertakes that it shall not at any time during the Contract, and for a period of three years after termination of the Contract, disclose to any person any confidential information including, but not limited to, the business, affairs or charges of the other party, except as permitted by clause 15.2.

15.2       Each party may disclose the other party’s confidential information:

(a)       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 15; and

(b)       as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3       Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

16.          Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

16.1       Nothing in these Conditions shall limit or exclude Pastel’s liability for:

(a)       death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)       fraud or fraudulent misrepresentation; and

(c)       any other matter in respect of which liability cannot lawfully be limited or excluded;

16.2       Subject to clause 16.1, Pastel shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise and whether or not caused by negligence or misrepresentation, arising under or in connection with the Contract for any of the following (whether direct or indirect):

(a)       loss of profits;

(b)       loss of sales or business;

(c)       loss of agreements or contracts;

(d)       loss of savings, discount or rebate (whether actual or anticipated);

(e)       loss of use or corruption of software, data or information;

(f)        loss of or damage to goodwill or reputation;

(g)       any indirect, consequential or special losses;

(h) loss of production; or

(i) loss of opportunity.

16.3       Subject to clause 16.1, Pastel’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the amount paid by the Customer to Pastel for Charges paid under the Contract.

16.4       The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 (as amended) and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 (as amended) are, to the fullest extent permitted by law, excluded from the Contract.

16.5       This clause 16 shall survive termination of the Contract.

17.          Termination and Suspension:  THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

17.1       Subject to clause 17.2 the Customer may terminate the Contract at any time by giving Pastel 30 days’ written notice.

17.2       Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)       the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;

(b)       the other party takes any step or action in connection with its 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), having a receiver appointed to any of its assets or ceasing to carry on business;

(c)       the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)       the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

17.3       Without affecting any other right or remedy available to it, Pastel may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a)       the Customer fails to pay any amount due under the Contract or Network Contract or Mobile Equipment Leasing Contract on the due date for payment; or

(b)       there is a change of Control of the Customer.

17.4       Without affecting any other right or remedy available to it, Pastel may suspend the supply of Services, disconnect the Services or suspend all further deliveries of Mobile Equipment under the Contract or any other contract between the Customer and Pastel if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(d), or if Pastel reasonably believes that the Customer is about to become subject to any of the events listed in this clause 13.4.

17.5       Without affecting any other right or remedy available to it, Pastel may suspend the supply of Services, disconnect the Services or all further deliveries of Mobile Equipment under the Contract or any other contract between the Customer and Pastel if the customer fails to sign a Network Contract or pay a deposit contrary to clauses 3.2, 3.3 or 3.4.

17.6        Where the Services are suspended or disconnected under clauses 17.4 or 17.5, the Customer shall be liable to pay to Pastel a disconnection fee of £29 for each instance of disconnection where the Contract provides for 9 Lines or fewer and where the Contract provides for 10 or more Lines a disconnection fee of £3 per Line shall be payable.

18.          Consequences of termination

18.1       On termination of the Contract the Customer shall immediately pay to Pastel all Charges together with all of Pastel’s outstanding unpaid invoices and interest and, in respect of Services and Mobile Equipment supplied or Charges for which no invoice has been submitted, Pastel shall submit an invoice, which shall be payable by the Customer immediately on receipt;

18.2       Cancellation Fees will be payable by the Customer to Pastel if prior to the expiry of the Minimum Period:

(a)  the Contract is terminated; or

(b)  the Network Contract is terminated; or

(c) the Network Services are disconnected as a consequence of the Customer’s breach of the Network Contract; or

(d)  the Mobile Equipment Leasing Contract is terminated.

18.3 In the event that the Cancellation Fees become payable by the Customer, if the Network Provider does not receive its cancellation fees in accordance with the Network Contract and as a result Pastel is subject to a clawback from the Network Provider, the Administration Fee payable by the Customer will be increased to 55% of the remaining Gross Contract Revenue.

18.4     The Cancellation Fees payable in accordance with clause 18.2 shall be invoiced by Pastel to the Customer and shall be payable immediately upon receipt.

18.5       The Customer acknowledges that the Cancellation Fees represent a genuine pre-estimate of the loss suffered by Pastel due to early termination, having regard to the overall commercial deal between the parties and that the Cancellation Fees do not represent a penalty.

18.5      If prior to the expiry of the Minimum Period:

(a) the Contract is terminated; or

(b) the Network Contract is terminated; or

(c) the Network Services are disconnected as a consequence of the Customer’s breach of the Network Contract; or

(d) the Mobile Equipment Leasing Contract is terminated;

the Customer must promptly deliver up all Mobile Equipment (including any alternative mobile equipment provided in accordance with clause 4.3) in its possession.

18.7 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

18.8       Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

19.          Upgrades

19.1     Where the Order specifies an upgrade or review point, Pastel shall review the Contract and/or the Network Contract and the monthly charges being paid by the Customer (Review).  Following any Review, Pastel may elect to offer the Customer a new Contract whereupon, if the Customer elects to accept the offer, the Customer shall sign a new Contract (New Contract) including a new Purchase Order or Application Form (New Order).

19.2     Where the Customer agrees to a New Contract, clause 18.2 shall not apply to the (old) Contract and the Customer will be bound by the terms of the New Order, including any new Minimum Period or period specified in the New Order.

19.3     Where the terms of this clause 19 are inconsistent with the Order, this clause 19 shall prevail.

19.4     Nothing in this clause 19 or the Contract obliges Pastel to provide any upgraded or new Mobile Equipment or to reduce the Charges payable by the Customer upon conducting a Review.  Any Mobile Equipment and the cost of such Mobile Equipment to be provided in the New Contract shall be specified in the New Order.

20.          Dispute Resolution

20.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 20.

20.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.

20.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:

20.3.1 within 7 days of service of the notice, representatives of the parties shall meet to discuss the dispute and attempt to resolve it;

20.3.2 if the dispute has not been resolved within 7 days of the first meeting of the parties’ representatives, then the matter shall be referred to each parties’ chief executive (or persons of equivalent seniority). The chief executives (or equivalent) shall meet within 7 days to discuss the dispute and attempt to resolve it.

20.4 The specific format for the resolution of the dispute under clause 20.3.1 and, if necessary, clause 20.3.2 shall be left to the reasonable discretion of the parties but may include the preparation and submission of statements of fact or of position.

20.5 If the dispute has not been resolved within 14 days of the first meeting of the chief executives (or equivalent) under clause 20.3.2 then the matter may be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.

20.6 Until the parties have completed the steps referred to in clauses 20.3 and 20.5, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts of emergency arbitrator relief.

21. Cumulative Remedies

The rights and remedies provided in the Contract for Pastel only are cumulative and not exclusive of any rights and remedies provided by law.

22.          Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

23.          General

23.1       Assignment and other dealings

(a)       Pastel may at any time novate, assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b)       The Customer shall not novate, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

23.2       Notices.

(a)       Any notice or other communication given by the Customer to Pastel under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid recorded delivery post or next working day delivery service to Pastel’s registered office or such other address where Pastel asks the Customer to send notices to.

(b)       Any notice or other communication given by Pastel to the Customer under or in connection with the Contract shall be sent by post to the Customer’s registered office (if a company) or the address specified in the Order or any other address where the Customer requests Pastel to send notices to.

(c)       Any notice or other communication shall be deemed to have been received: if delivered by hand or recorded delivery post or by a next working day delivery service, on signature of a delivery receipt; if sent by first or second-class post (non-recorded) at 9am on the second business day after posting; or if sent by email at the time of transmission.

(d)       This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

23.3       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.

23.4       Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

23.5       No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

23.6 Further Assurance. The Customer shall at the request of Pastel, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

23.6       Entire agreement.

(a)       The 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.

(b)       Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty that is not set out in the Contract.

23.7       Third parties rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

23.8       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 (in the case of Pastel to be signed by a director).  Pastel may change these Conditions from time to time and the varied or updated Conditions shall be available to view at [ ]  Minor changes will take effect immediately upon the varied Conditions being posted at [ ] and material changes shall take effect 30 days after the varied Conditions have been posted at [ ]

23.9       Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

23.10    Jurisdiction. 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.

 

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