Switch Communications Terms and Conditions for use of the Rainbow Service

SWITCH COMMUNICATIONS LIMITED

TERMS AND CONDITIONS FOR OF USE OF THE RAINBOW SERVICE

Please read these Terms in conjunction with our Privacy Notice and the Terms of Use

 

 

  1. DEFINITIONS
    • In these terms and conditions (“Terms”) the following words shall have the following meanings:
Agreement the agreement between you and the Company for the supply of the Rainbow Service in accordance with your Order and these Terms.
Authorised Provider the Company’s authorised third party provider of the Rainbow Service.

 

Billing Period means for a given Subscription the period of the Service Usage that is considered for charging the Subscription Fee.
Commencement Date the date of the Agreement.
Company, We, Us, Our Switch Communications Limited (Company Number: 02645307) whose Registered Office is at Glebe Farm Down Street, Dummer, Basingstoke, Hampshire, RG25 2AD.

 

Confidential Information any and all information whether disclosed in written or oral or machine-readable form or otherwise including without limitation information relating to the Company’s services, equipment, operations, know-how, trade secrets and information of commercial value.
Customer, you the individual, company, entity, organisation or business that orders the Rainbow Service from the Company.
Customer Administrator your employee(s) or agent(s) appointed by you for accessing and using the Customer Administration Space in your name and on your behalf to administer the Rainbow Service.
Customer Administration Space the web-based interface made accessible to you by the Company to enable you to self-administer the Rainbow Service.
Data Protection Legislation unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.

 

GDPR General Data Protection Regulation ((EU) 2016/679).

 

Order your order for the Rainbow Service.

 

Personal Data

 

as defined in Clause 13.3.
Price List the then current list of price and list of feature/service for each Service Plan and applicable at the time of ordering the Rainbow Service Plan.
Rainbow Service the latest version of any feature and service, as described in the Price List.
Rainbow Service Description the terms and conditions pertaining to a Service Plan.
Renewal Term means the duration over which the Subscription is renewed upon expiration of the initial Subscription Term or upon expiration of any Renewal Term.
Service Plan a commercial offer issued by Us from time to time composed of various features and services. You may subscribe to one (1) or more Service Plans for the same enterprise.
Service Usage the usage made by the Users of a given Rainbow Service.
SLA the Service Level Agreement set out in Appendix 1 to these Terms.
Subscription the Agreement between you and the Company for the delivery of the Service Plan.
Subscription Fee for a given Subscription, the price to be paid by you per Billing Period, throughout the corresponding Subscription Term or Renewal Term. The calculation mode of such price is defined in the Rainbow Service Description and is either based on a per-user-account model (fee is based on a price per User Account) or a per-usage model (fee is based on a price per Service Usage) or on a mix of both.
Subscription Term the initial duration of the Subscription as set forth in the applicable Rainbow Service Description and your Order.
Support Services the maintenance support services provided by Us to you for Rainbow Services under a valid Subscription, such services are described in this Agreement, and in the SLA.
Terms of Use the terms (including the updates to such terms) governing the use of the Rainbow Service set out at [insert link to Terms of Use].
User the individual who accesses the Rainbow Service.
User Accounts the access rights granted to Users for the Rainbow Service.
Working Day 09:00 to 17:00 Monday to Friday but excluding public holidays in the United Kingdom.

 

  • Construction. In these Terms, the following rules apply:
    • a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    • a reference to writing or written includes faxes and e-mails.
    • a reference in these Terms to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
    • headings in the Agreement shall not affect interpretation.
  1. orders
    • The Order constitutes an offer by the Customer to purchase the Rainbow Service in accordance with these Terms.
    • All Orders must be placed through the Switch Customer Service team. Where requested, you shall provide complete and accurate information into mandatory fields regarding the Customer. Failure to do so may result in Us refusing or rejecting your Order. We shall not be responsible or liable for any delay in providing the Rainbow Service which arises directly out of the Customer or Customer’s failure to perform its obligations hereunder or to co-operate with the Company or to provide complete and accurate information, all in a timely manner.
    • We may accept or reject an Order at Our sole discretion.
    • Prior to or at such other time as agreed with the Customer, the Company shall carry out a feasibility check and audit of the Customer’s system and/or software.
    • If, after carrying out a feasibility check and audit of the Customer’s system and/or software the Company determines that:
      • the Customer’s system and/or software does not pass the feasibility check and audit it may reject the Order and / or advise the Customer of any upgrades necessary for the Customer’s system and/or software to pass the feasibility check;
      • the Customer’s system and/or software passes the feasibility check and audit it may accept the Order.
    • If the Customer’s system and/or software passes the feasibility check the Order shall only be deemed to be accepted when the Company issues written acceptance of the Order or (if earlier) the Company provides the Rainbow Service to the Customer at which point and on which date the Agreement shall come into existence (Commencement Date).
    • Once an Order has been accepted by the Company, the Customer may not cancel an Order.
    • The Agreement constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Agreement.
    • These Terms apply to the Agreement 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. RAINBOW SERVICE CONTENT
    • The Company shall use reasonable efforts to notify the Customer by any appropriate means, at least sixty (60) days prior to the discontinuance of any Service Plan or any territory or major modifications of the Rainbow Service.
    • You acknowledge that, upon discontinuance of a Service Plan, no new Subscription or renewal for that Service Plan shall be available. However, Service Plans subscribed before discontinuance remain valid until the end of their Subscription Term or Renewal Term as the case may be. In the event that the Subscription Term is shorter than ninety (90) days, the discontinued Service Plan shall be terminated after the ninety (90) day notice period.
    • Notwithstanding the foregoing, the Company may discontinue any or all Rainbow Service, without delay and without any liability, upon legal request of authority.
  3. supply of services
    • We shall supply the Rainbow Service to the Customer from the Commencement Date for the Subscription Term and any Renewal Term in accordance with these Terms.
    • The Customer acknowledges that it has limited rights to terminate the Agreement during the Subscription Term and any Renewal Term (as the case may be). These rights are set out in Clause 8.4. If the Customer terminates the Agreement before the expiry of the Subscription Term and any Renewal Term, the Customer shall pay any applicable fees as set out in Clause 8.5.
    • We shall have the right to make any changes to the Rainbow Service which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Rainbow Service, and We shall notify the Customer in any such event.
    • The Company warrants to the Customer that:
      • the Rainbow Service will be provided using reasonable care and skill;
      • unless otherwise provided in the Rainbow Service Description, the Rainbow Service will materially comply with the applicable Rainbow Service Description and the Service specifications.
    • We do not warrant that the Rainbow Service will be available without interruption or will be error free, or free of viruses.
    • The Customer acknowledges that:
      • unless otherwise agreed by the Company in writing, the Rainbow Service have not been developed to meet their individual requirements and that it is therefore the Customer’s responsibility to ensure that the facilities and functions of the Rainbow Service meets their requirements. The Company shall not be liable if the Rainbow Service does not meet the Customers’ business requirements or does not operate with the Customers’ existing systems;
      • the Company shall not be responsible or liable for any failure in the Rainbow Service resulting from or attributable to causes outside the Company’s control including but not limited to;
        • network, telecommunications or other services failure;
        • the Customer’s or third party’s products, services, negligence, acts or omissions
        • scheduled maintenance; or
        • unauthorized access, breach of firewalls or other hacking by third parties.
      • We shall not be liable or responsible for any delays, delivery failures or any loss or damage arising out of or resulting from the transfer of data including but not limited to the Customer’s data, over communications networks and facilities (including the internet) unless caused by an act or omission of the Company;
      • the Rainbow Service may be subject to limitations, delays and other problems arising out of the use of such communications networks and facilities;
      • scheduled downtime will occur from time to time. We will use Our reasonable endeavours to provide the Customer with at least three (3) Working Days’ notice of any scheduled downtime;
      • the existence of any minor errors in the Rainbow Service shall not constitute a breach of the Agreement;
      • use of the Rainbow Service, may carry certain security risks to the systems and networks of the Customer, the Company and third parties including, but not limited to: misuse; unauthorized access; alterations; theft; fraud; destruction; corruption; and attacks (Occurrences). The Customer will, at its own expense, take security measures including but not limited to the use of firewalls, passwords, access restrictions, encryption, policies, and physical access restrictions, to protect from Occurrences all, equipment, software, data and systems located on the Customer’s premises or otherwise in the Customer’s control and used in connection with the Rainbow Service, whether owned by the Customer, the Company, or the Company’s suppliers. The Customer is responsible for all security measures, even if the Customer uses a third party or the Company to configure and implement them;
      • We may occasionally suspend the Service for operational reasons (such as maintenance or Service upgrades), major service outages or because of an Emergency, but will use Our reasonable endeavours to give the Customer as much notice as possible; and
      • the Company or its Authorised Provider may at any time and without liability modify, expand, improve, maintain or repair the Rainbow Service and this may require suspension of the operation or provision of the Rainbow Service and We shall have no liability to the Customer in connection with any such adverse effect on the quality and availability of the Rainbow Service.
  1. RAINBOW SERVICE ADMINISTRATION, SUBSCRIPTION, DELIVERY, TERMINATION
    • On or around the Commencement Date, We shall provide the Customer Administrator with an access to the Customer Administration Space.
    • The Customer shall have full responsibility for such rights(s) and related password(s) and shall make sure that the Customer Administrator uses his/her personal login and password in accordance with these Terms and does not disclose it to any unauthorised person. The person using the access right(s) and password(s) is assumed to be a The Customer Administrator. Accordingly, the Customer takes full responsibility for the actions carried out from such account(s).
    • The Customer Administrators shall modify their password on a regular basis.
    • The Customer Administrator(s) shall, and the Customer shall ensure that the Customer Administrator(s) shall cease the use of his/her login and password immediately upon termination of their employment with the Customer. The Customer acknowledges and agrees that the Customer Administrator(s) is (are) authorized to use the login(s) and related password(s) only for accessing the Customer Administration Space for the business purposes intended by the Agreement. The Customer and the Customer Administrator(s) may not use the login(s) and related passwords for any other reason.
    • Through its Administration Space, the Company registers the Customer and nominates the Customer Administrator. Upon such registration and nomination, the Company will provide to the Customer Administrator an access to its Administration Space.
    • The rights to access the Rainbow Service are non-exclusive, revocable, personal to the Customer and non-transferable without the Company’s prior written consent, and for the duration of the Subscription Term and any Renewal Terms.
    • Status of the Service Plan subscribed by the Customer and the associated Service Usage are available through the Customer Administration Space to the Customer. The Customer hereby acknowledges and agrees that the output of the Customer Administration Space shall be sufficient and satisfactory legal evidence of the status and Service Usage of each Service Plan during the Billing Period and throughout the Subscription Term and Renewal Terms.
    • Upon the expiry or termination of any Subscription for whatever reason, the Customer acknowledges and agrees that:
      • the Company shall have the right to take all necessary steps and actions to disable the Rainbow Service corresponding to the terminated Subscription. The Customer shall promptly provide the Company with all assistance reasonably requested by the Company for the purpose of implementing such disablement;
      • unless otherwise downloaded by the Customer, call history, screen saves, documents and other data will be deleted from the Rainbow Service on expiration or termination of the Subscription. The Customer should retrieve all data and documents from the Rainbow Service (where applicable) prior to the Subscription Term expiration date;
      • the Customer shall pay to the Company any pending Subscription Fee or any other amount owed to the Company by the Customer pursuant to the Agreement.
    • The Company reserves the right at any time upon five (5) day prior notice to the Customer to terminate a Subscription if no usage has been made by the Customer of the Rainbow Service over the past three hundred and sixty-five days (365) days with the understanding that the Company will retain upon termination all data related to such Rainbow Service for the period of time dictated by applicable law.
  2. PRICE – INVOICING AND PAYMENT
    • Rainbow Service Pricing model
      • The Customer shall pay the Subscription Fee and all other charges which are set out in the Order (the Charges).
      • The calculation mode of the Subscription Fee for each Service Plan is defined in the Rainbow Service Description and is either based on a per-user-account model (fee is based on a price per User Account) or a per-usage model (fee is based on a price per Service Usage) or on a mix of both.
      • The Charges are exclusive of VAT, sales taxes, duties, custom duties, excise taxes, withholding taxes.
      • The Company may revise the Price List for a given Service Plan at any time upon 30-days prior notice notification to the Customer by any appropriate means.
      • For each Service Plan and Subscription, the revised prices will apply only from the start date of any Renewal Term or extension of the Subscription Term, unless otherwise specified in the Rainbow Service Description.
      • If the new Charges are not accepted, the Customer is allowed to terminate the Subscription (according to the conditions as described in the Rainbow Service Description)
    • Invoices

During the Subscription Term we will issue invoices for each Billing Period according to the corresponding Rainbow Service Description.

  • Payment
    • The Customer shall pay the Charges in pounds sterling without set-off or deduction.
    • Any technical issue affecting the Rainbow Service in whole or in part:
      • shall not affect such obligation to pay; and
      • shall not give rise to any deduction nor set-off from the Subscription Fees
    • Payments will be made within fourteen (14) days from the date of invoice.
    • Time for payment of the Charges shall be of the essence of the Agreement.
  • If the Customer fails to make payment in full by the due date, in addition to the Company’s right to terminate the Rainbow Service as set out in Clause 8.6.1, We may:
    • withdraw passwords, accounts and/or access to the Rainbow Service;
    • charge interest at the rate of 4% per annum above the base rate of the Bank of England on any amounts outstanding from the due date for payment until payment is made in full.
  • If the Customer disputes any invoice (including the calculation of any amounts payable) they must notify the Company within six (6) months of the date of the invoice. The Customer shall not be entitled to any credit or refund relating to disputes raised after expiry of this period.
  • If the Company becomes liable to pay any additional fees, costs or charges to the Government, a regulatory authority or self-regulatory authority and such fees, costs or charges are directly attributable to the provision of Services to the Customer under the Agreement, We shall be entitled to pass through such fees, costs and charges to the Customer with immediate effect.
  1. The Customer’s Obligations
    • The Customer may only use the Rainbow Service:
      • in accordance with the Agreement;
      • in accordance with any instructions provided to the Customer by the Company from time to time; and
      • for their own internal business use.
    • The Customer may not resell or commercially exploit any of the Rainbow Service without the prior written consent of the Company.
    • The Customer shall:
      • ensure that the terms of the Order are complete and accurate;
      • ensure that it is aware of and accepts the Rainbow Service Terms of Use before using the Rainbow Service and observes the Rainbow Service Terms of Use at all times during the term of the Agreement;
    • It is the Customer’s sole responsibility to (i) obtain and operate all system (e.g. network, communication equipment, bandwidth required to deliver the Rainbow Service) needed to connect, to access or otherwise use the Rainbow Service, (ii) maintain the proper functioning, the integrity and security of such system, and (iii) to bear all related costs, expenses and charges.
      • ensure that its equipment, IT infrastructure and connectivity shall be adequate to enable the Company to efficiently provide the Rainbow Service;
      • ensure that We shall have such remote and other access to the systems and infrastructure of the Customer as it shall require to provide the Rainbow Service;
      • enter into and maintain contracts directly with such third party providers as may be necessary to enable the Company to provide the Rainbow Service and ensure that such contracts permit the Company to request resources directly from each provider on behalf of the Customer when required;
      • keep in place software maintenance agreements with the providers of all supported software applications used by the Customer to ensure adequate assistance from such vendors if required;
      • ensure that any equipment connected (directly or indirectly) to or used with the Rainbow Service is compatible with the Service and where applicable be on the authorised equipment list provided by the Company from time to time. Any equipment not listed as authorised equipment by the Company, where applicable, will not be supported by the Rainbow Service;
      • not use the Rainbow Service and will take all reasonable steps to ensure that the Rainbow Service are not used by anyone:
        • to send, knowingly receive, upload, download, use or re-use material which is offensive, indecent, defamatory, obscene or menacing;
        • contrary to any instructions given by the Company;
        • in a way that does not comply with the terms of any legislation or any licence applicable to the Customer;
        • in a manner that is in any way unlawful, fraudulent or in bad faith or, to the knowledge of the Customer, has any unlawful, fraudulent or bad faith purpose or effect;
        • in a manner that in the Company’s reasonable opinion could materially affect the quality of the Rainbow Service, or any other services, provided by the Company;
        • in a manner which is contrary to Clause 13; or
        • in a manner that that could reasonably be believed to have a detrimental effect on the Companys brand or reputation.

The Company will not be liable for any corruption, deletion, destruction or loss of any content posted by the Customer or Users through Rainbow Service and/or for any content posted by the Customer or Users through the Rainbow Service that, defame, abuse, harass, invade, threaten or otherwise violate the legal rights of other (such as, but not limited to, intellectual property rights) or for any content which is false or misleading, promoting racism, hatred or harm against any group or individual, obscene or indecent, and/or more generally, for any content violating any applicable laws, regulations or code of conduct.

  • keep confidential and secure any user names and passwords provided or enabled by the Company and use them strictly in accordance with any instructions issued by the Company;
  • comply with all rules, regulations, legislation, statutes and laws that are applicable to the Rainbow Service;
  • comply with all reasonable policies, procedures and practices applicable to the Rainbow Service and as notified to it by the Company in writing from time to time;
  • indemnify the Company against any losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against the Company as a result of;
    • the Customer’s breach of this Clause 7.4;
    • the Customer’s breach or non-performance of the Acceptable Use Policy;
    • use by the Customer of the Rainbow Service that causes damage to, interrupts or otherwise prevents the Company from supplying the Rainbow Service to other customers or complying with obligations owed to other customers;
    • any use of the Rainbow Service by the Customer that promotes or assists any illegal activity.
  • co-operate with and follow the Company’s reasonable instructions to ensure the proper use and security of the Rainbow Service.
  • If the Company’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
    • We shall without limiting Our other rights or remedies have the right to suspend performance of the Rainbow Service until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
    • We shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations under the Agreement; and
    • the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
  1. term and TERMINATION
    • This Agreement shall become effective from the Commencement Date and shall remain effective until the termination or expiration of the Agreement.
    • If upon the expiry of the Subscription Term and any Renewal Term (as the case may be) the Customer has not;
      • agreed a Renewal Term; or
      • given notice to the Company in accordance with Clause 8.4,

We will continue to supply the Rainbow Service to the Customer for the Renewal Term unless the Customer terminates the Agreement as set out in Clause 8.5.

  • If a Renewal Term has been agreed We will continue to supply the Rainbow Service to the Customer for the Renewal Term unless the Customer terminates the Agreement as set out in Clause 8.4.
  • The Customer may:
    • terminate the Agreement (without incurring the fees set out in Clause 8.4) by giving a minimum of three (3) months prior written notice to the Company such notice to expire on the expiry date of the Subscription Term and or Renewal Term (as the case may be); or
    • terminate the Agreement before the Subscription Term and any Renewal Term (as the case may be) has expired but will have to pay the fees set out in Clause 8.5.
  • If the Customer terminates the Agreement before the Subscription Term and any Renewal Term (as the case may be) has expired or been terminated by the Customer, the Customer shall pay to the Company all Charges which would have been due to the Company for the Subscription Term or Renewal Term (as the case may be) if the Agreement had not been terminated.
  • Without prejudice to any other rights or remedies to which We may be entitled, We may terminate the Agreement without liability to the Customer if:
    • the Customer commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days from the date of the notice from the Company or the following periods from the date of the notice from the Company:
      • 7 days where there is a failure to pay a sum due under the Agreement;
      • a shorter time, reasonably specified in the notice, in the case of emergency;
      • 48 hours where the Customer is repeatedly in breach of the Agreement (including without limitation repeatedly late in paying sums due under the Agreement) where notice of a previous breach for the same reason has been given;
    • the Customer commits a material breach of any of the terms of the Agreement that is not capable of being remedied; or
    • the Company reasonably believe the Customer has provided false or misleading information;
    • the Customer’s credit rating decreases at any time, and the Customer fails to supply reasonable security in response to a request from the Company;
    • the Company considers that there is a significant credit risk;
    • the Customer is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution, or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Customer.
  • The Company may, without prejudice to any of its other rights under the Agreement, terminate the Agreement with immediate effect by notice in writing in the event that:
    • the Company’s contract with its Authorised Provider to the Rainbow Service is suspended, varied or terminated or the Company is not, for whatever reason, permitted or authorised to provide the Rainbow Service;
    • the Company considers that there is a fraud risk;
    • the Company reasonably considers that the breach, act, omission or default of the Customer may result in the Company’s failure to comply with any applicable legislation or may place the Company in breach of its agreement with it’s Authorised providers or licensors;
    • use by the Customer of the Rainbow Service is, or is likely to cause damage to, interrupt or otherwise prevent the Company from supplying the Rainbow Service to other customers or complying with obligations owed to other customers;
    • such action is required to comply with a direction from any competent authority to suspend or cease the provision of the Rainbow Service or any part of it;
    • such action is required in order to comply with any legislation;
    • the Company has reasonable grounds to suspect that the Customer is involved in fraudulent or other unlawful activity.
  • Expiration or termination of this Agreement shall not affect Subscriptions accepted before such expiration or termination, which will continue to be governed by these Terms.
  • For the avoidance of doubt, fraudulent or unauthorized usage of the Rainbow Service, or non-payment of the Subscription Fees shall be deemed a material breach of these Terms.
  • Termination of one or more Subscription(s) does not automatically lead to the termination of the Agreement.
  1. EFFECTS OF TERMINATION
    • Upon termination or expiry of the Agreement for any reason:
      • the Customer shall immediately pay:
        • all unpaid Subscription Fees due until the effective termination or expiration date of each Subscription, as described in the Rainbow Service Description; and
        • all of the Company’s outstanding unpaid invoices and interest;
      • the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry;
      • clauses which expressly or by implication survive termination shall continue in full force and effect; and
      • unless otherwise agreed in writing by the Company:
        • all rights and licences of the Customer under the Agreement shall terminate; and
        • the Customer shall cease to use, and delete, all instances of the software.
  1. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
    • This Clause 10 sets out the Company’s entire liability (including any liability for acts or omissions of the Company’s employees, agents or subcontractors) in respect of any breach of the Agreement and any representation, statement or tortuous act or omission arising out of or in connection with the Agreement.
    • Except as set out in these Terms, the Company provides no warranties, conditions or guarantees as to the description or quality of the Rainbow Service, and all warranties, conditions or guarantees implied by or expressly incorporated as a result of custom and practice, statute, common law or otherwise are hereby expressly excluded so far as permitted by law.
    • Nothing in these Terms shall exclude or limit the liability of either party to the other:
      • for death or personal injury caused as a result of its negligence or the negligence of its employees, agents or subcontractors;
      • for fraud or fraudulent misrepresentation;
      • for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
    • Subject to Clause 10.3, the Company’s aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall not exceed £1,000,000 (one million pounds sterling).
    • Subject to Clause 10.3, We shall not be liable to the Customer for:
      • loss of profits; or
      • loss of revenue;
      • loss of income or business;
      • depletion or loss of goodwill, reputation or similar losses;
      • loss of anticipated savings;
      • loss of or corruption of data or information;
      • loss of use;
      • loss of contract;
      • any indirect or consequential or special loss or damage or pure economic loss, costs, damages, charges or expenses whatsoever and howsoever caused.
    • The Customer’s sole and exclusive remedy for any breach of the warranty set out in Clause 4.4 is, (at our option) to:
      • provide a new release of the Rainbow Service; or
      • refund to the Customer the Subscription Fees for the period in which the Service did not materially comply, subject however to the limitation of liability set out in Clause 10.

In order to receive these remedies, the Customer must promptly notify the Company of such breach.

  • The Services are not intended to be used for, or in relation to, any purpose which will or may affect the safety or wellbeing of any person and the Company excludes any and all liability whatsoever arising out of, or related to, any such use.
  • The provisions of this Clause 10 shall survive termination or expiry of the Agreement.
  1. Suspension and Variation of the ServiceS
    • The Company reserves the right (at its option) to suspend or vary the Rainbow Service:
      • if the Company reasonably believe the Customer has provided false or misleading Customer Information;
      • the Company needs to modify, expand, improve, maintain or repair the Rainbow Service;
      • the Customer’s credit rating decreases at any time, and the Customer fails to supply reasonable security in response to a request from the Company; or
      • the Company considers that there is a significant credit risk;
      • the Company considers that there is a fraud risk;
      • the Company’s contract with its Authorised Provider to the Rainbow Service is suspended, varied or terminated.
    • The re-instatement of suspended Services shall be at the Company’s sole discretion and the Customer shall nevertheless be responsible for payment of the Charges during any period where the Rainbow Service is suspended pursuant to clause 11.1.1 and clause 11.1.3.
  2. FRAUD
    • It is the Customers responsibility to warn Users and to ensure that it understands that protection of account name, password and other login information is key for preventing unauthorized use by third parties, and that accordingly the Customers implement appropriate measures within its organization such as to promptly remove access rights to any User who is no longer authorized to access the Service. The Customer shall hold the Company harmless and indemnify the Company from and against any claim based on wrong, inadvertent or fraudulent use.
    • The Customer shall not publicise any information on its website, in any soft copy or hard copy marketing material or otherwise, which may lead to fraudulent use of the Rainbow Service (e.g. dial-in numbers).
    • It is the Customers responsibility to suspend any User Account suspected to be compromised through the Customer Administration Space to prevent continued fraudulent usage and fees.
    • In addition, the Customer shall notify the Company immediately if and when the Customer becomes aware of any fraud affecting the Rainbow Service, and will communicate to the Company the relevant User Account details being compromised at techsupport@switchcomms.co.uk, the Company shall in no event be responsible or liable or bear any costs or expenses for any wrong, inadvertent or fraudulent use of the Rainbow Service.
    • The Customer acknowledges and agrees that the Company may at any time upon notice to the Customer – to the extent such notice is reasonably practicable – suspend any User Account if the Company has reasonable grounds to believe that such User Account is being used to commit fraudulent or otherwise that the Rainbow Service is used without proper authorization.
  3. confidentiality and Data Protection
    • During the term of this Agreement and for three (3) years after termination, the Customer shall:
      • keep all Confidential Information confidential;
      • disclose Confidential Information only to its employees that need to know it for the purposes contemplated by the Agreement; and
      • use the Confidential Information exclusively for the purposes contemplated by the Agreement.

This Clause shall not apply to information that the Customer can prove:

  • is in the public domain otherwise than by the Customer’s breach;
  • it already had in its possession prior to obtaining the information directly or indirectly from the Company; or
  • a third party subsequently disclosed to the Customer free of restrictions on disclosure and use.
  • Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
  • The Company’s Privacy Notice [insert LINK to the applicable Group Privacy Notice] sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of personal data (where Personal Data has the meanings as defined in the Data Protection Legislation) and the Company collects.
  • Without prejudice to the generality of Clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Company for the duration and purposes of the Agreement.
  1. Force majeure
    • For the purposes of the Agreement, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
    • We will not be liable to the Customer for any failure or delay in performing Our obligations under the Agreement or supplying the Rainbow Service:
      • as a result of a Force Majeure Event;
      • if another supplier delays or refuses the supply of an electronic communications service to the Company or any of the Company’s suppliers and no alternative service is available at reasonable cost; or
      • if legal or regulatory restrictions are imposed upon the Company or any of the Company’s suppliers that prevent the Company or any of the Company’s suppliers from supplying the Service.
    • If the Force Majeure Event prevents the Company from providing any of the Rainbow Service for more than 12 weeks, We shall, without limiting its other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to the Customer.
  2. Notices
    • Notices must be in writing. The address for service on the Company (subject to any change notified by the Company) is: Switch Communications Limited, Glebe Farm, Down Street, Dummer, Hants, RG25 2AD.  The address for service on the Customer is as set out in the most recent invoice.
    • Notices may be delivered by hand, sent by first-class mail, fax or e-mail. Correctly addressed notices if delivered by hand, shall be deemed to have been delivered at the time of delivery, if sent by first-class mail shall be deemed to have been delivered 72 hours after posting, correctly directed faxes shall be deemed to have been received instantaneously on transmission and in proving the service of any notice by e-mail, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
  3. variation
    • Except as set out in these Terms, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed by the Company in writing and signed by an authorised representative of the Company.
  4. general
    • Assignment and other dealings.
      • We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of Our rights under the Agreement and may subcontract or delegate in any manner any or all of Our obligations under the Agreement to any Authorised Party, third party or agent.
      • The Customer shall not, without the prior written consent of the Company, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement.
    • Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
    • Any failure by either party to exercise or enforce its right under the Agreement shall not be a waiver of that right, nor prevent such party from exercising or enforcing such right at a later time.
    • No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
    • Third parties. A person who is not a party to the Agreement shall not have any rights to enforce its terms.
    • Governing law. The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
    • Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

 

RAINBOW SERVICE LEVEL AGREEMENT (SLA)

RAINBOW SERVICE DESCRIPTION

The Company offers the following Service Plans and Support Services.

For the sake of clarity, Rainbow Essential (a freemium Rainbow service) that is free of charge is excluded from the current Rainbow Service Description.

  1. RAINBOW SERVICE PLANS – RAINBOW BUSINESS AND RAINBOW ENTERPRISE
    • Service Plan Description

Rainbow Business and Rainbow Enterprise Service Plans offer a series of collaboration services, PBX services and management services. The Company may enhance and/or change the features of the Service Plans at its discretion as long as the Company does not materially reduce the core functionality of the Rainbow Service subscribed. The Company may offer additional Service Plans with a new set of features and/or functionalities in addition to the Service Plans stated above.

  • Subscription Term

Rainbow Business and Rainbow Enterprise Subscription Term is defined in the Order with an automatic Renewal Term for the same duration.

  • Billing Period

The Billing Period for the Rainbow Business and Rainbow Enterprise Subscription is 1 (one) calendar month billed in advance.

  • Pricing model and invoicing for Rainbow Business and Rainbow Enterprise
    • Rainbow Business and Rainbow Enterprise Service Plans pricing model is a per-user model.
    • In the Order, for a given Rainbow Service Plan, the Customer shall selects how many User access rights are requested for the Customer. These access rights are made available to the Customer through the Customer Administration Space, who shall then allocate these access rights to its Users.
    • Subscription Fees apply for the quantity of access rights ordered, independently of whether or not the Users have exercised their privilege to access the Rainbow Service.
    • On the first day of each Billing Period, at 00:00am, Central European Time zone, the Company calculates the quantity of valid access rights ordered under a given Subscription. The corresponding invoice is issued for the Billing Period to come.
    • The first Billing Period (i.e. the Billing Period over which a new access right is ordered), is not subject to a Subscription Fee. Subscription Fees will apply for that access right starting the following Billing Period.
    • Furthermore, the Customer may choose to request additional access rights or to remove access rights through the Rainbow Customer Administration Space. This will be considered as an automatic adjustment to the Subscription and will be invoiced accordingly.
  • Rainbow Service Flexibility

The Customer may subscribe to several Service Plans. The Customer may increase or reduce the quantity of User Accounts subject to the terms of the Order and the Terms, invoicing will be adjusted accordingly for the following Billing Period.

  • Rainbow Service Level Agreement for Rainbow Business and Rainbow Enterprise

The Rainbow Service Level Agreement applicable to Rainbow Business and Rainbow Enterprise (the SLA) is described in the Terms of Use.

  • Compliance

The Customer hereby acknowledges and agrees that it shall comply with applicable laws and regulation relating to the Rainbow Business and Rainbow Enterprise Services.

  1. RAINBOW SERVICE PLAN – RAINBOW CONFERENCE
    • Service Plan Description
      • Rainbow Conference Service Plan offers audio conferencing services to Users who have access rights to either Rainbow Essential, Rainbow Business or Rainbow Enterprise and to Customers located in one of the authorized territories.
      • The Company may enhance and/or change the features of the Rainbow Conference Service Plan at its own discretion as long as the Company does not materially reduce the core functionality of the Rainbow Service subscribed. The Company may offer additional Service Plans with a new set features and/or functionalities in addition to the Service Plans stated above.
    • Subscription Term
      • Rainbow Conference Subscription Term is 1 (one) calendar month with an automatic Renewal Term for the same duration.
      • The Customer may terminate a Subscription at any point in time, via the Company’s Service team. In the event of early termination, Clause 8.5 of the Terms shall apply.
    • Billing Period
      • The Billing Period for the Rainbow Conference Subscription is 1 (one) calendar month. Pricing model and invoicing for Rainbow Conference Service is a per-usage model. Subscription Fee is based on a price per Service Usage, as described in the Price List.
      • Such Service is made available to the Customer through the Customer Administration Space who then allocates the right to access Rainbow Conference to its Users.
      • At the beginning of each Billing Period, the Company evaluates the Service Usage for the previous Billing Period. The invoice to the Customer is issued accordingly.
    • Rainbow Service Flexibility
      • The Customer may choose to grant additional access rights of Rainbow Conference to Users at any point in time, or to remove access rights through the Rainbow Customer Administration Space. This will be considered as an automatic adjustment to the Subscription and usage will be invoiced accordingly.
    • Rainbow Service Level Agreement for Rainbow Conference
      • The Rainbow Service Level Agreement applicable to Rainbow Conference (the SLA) is described in the Terms of Use. Should the Company fail to meet the SLA during three (3) consecutive Billing Periods, End-Customer may immediately remove the affected access rights to Rainbow Conference Service. This does not release End-Customer from its obligation to pay all Rainbow Conference Subscription Fees due.
      • This removal is the sole remedy available to End-Customer for the SLA breach.
  1. RAINBOW SUPPORT SERVICES
    • Problem Resolution
      • If, support is required, the Customer shall escalate the issue to the Company Rainbow Support Desk, via tech.support@switchcomms.co.uk
      • Only those individuals identified by the Company as a Customer Administrator (having been granted access right to Customer Administration Space) are eligible to contact Rainbow Support Desk.
      • The Customer will use problem severity definition, consistent with those of the Company set forth below. Once the case is reported, the Customer and the Company will work in good faith to develop and execute a plan that will provide a timely and satisfactory resolution.
        • Priority 1, Critical Outage Problems that severely affect call processing service, traffic and require immediate corrective action (24×7) for example: ● 100% of users cannot access the Services; ● 100% of users cannot connect to voice servers; ● No inbound calls can be placed into Workflows or Campaign Queues; ● No outbound calls can be made from the system.
        • Priority 2, Major Impact Problems that cause conditions that significantly affect system operation, maintenance, and administration and require immediate attention. The urgency is less than in critical situations because of a lesser effect on system performance, for example: ● There are call processing issues with a majority group of users (>50% of users); ● The system performance is degraded; ● Administration of service is degraded; ● There is no reasonable workaround.
        • Priority 3, Minor Impact Problems which do not significantly impair the functioning of the system and do not significantly affect service to customers, for example: ● Individual agent issues; ● Problem is non-critical or not service affecting; ● There is a reasonable workaround.
        • Priority 4, Informational Information needed concerning product capabilities, advice or basic configuration. This Priority is restricted to “How To….” Questions and therefore handled as non-service impacting, for example Configuration questions: ● Usability issue, documentation problem ● There is an easy workaround or no workaround is required
      • To enable the Company to carry out Support Services, the Customer shall ensure that the Company can contact the Customer Administrator and access remotely Users’ devices during Business Hours.
      • The Customer shall provide an accurate description of the problem and its severity level, stating the circumstances that lead to such severity. The actual severity level may be re-determined by the Company during the problem resolution process and the Company will have the final authority as to the actual problem severity level.
      • The Company will use reasonable efforts to provide feedback depending on the above-mentioned problem severity. The Company will provide periodic status and action plans to the Customer. The Company shall not be required to provide Support Services relating to any problem arising out of:
        • Changes to the operating system or environment (such as but not limited to proxy and firewall), which adversely affect the Rainbow Service;
        • Operation of the Rainbow Service outside of environmental specifications;
        • Non-compliance with Rainbow Service white list and network requirements as available on www.openrainbow.com;
        • Interconnection of the Rainbow Service with software products not supported by the Company;
        • Alteration or addition to the Rainbow Service performed by people other than the Company’s employees or inconsistent with the Company’s instruction;
        • Use of the Rainbow Service in a manner for which it was not designed.
      • In case of termination of the Subscription such Support Services and right to access such Support Services will end simultaneously with such Subscription.