1. Introduction and Order of Precedence
1.1. Capitalised terms, unless they are otherwise defined, have the meanings given to them in Schedule 1 (“Definitions”) of the Agreement.
1.2. The Agreement applies in respect of the provision of the Services to the exclusion of any other terms that the Partner seeks to impose or incorporate, or which are or may be implied by trade, custom, practice or course of dealing.
1.3. If it is found that there is an inconsistency between this Agreement (including its Schedules) and/or the Partner Guide(s) and policies, the documents shall be interpreted in the following order of precedence:
1.3.1. Schedule 2 (Service Descriptions and Service Specific Conditions);
1.3.2. the terms and conditions of this Agreement and Schedule 1 (Definitions); and
1.3.3. the Partner Guide(s) and policies.
2. Duration
2.1. This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with the terms of this Agreement, for the Initial Term.
2.2. Subject to clause 2.3 this Agreement shall automatically renew and continue in force with effect from the date on which the Initial Term expires and on each anniversary thereof for a further period of twelve (12) months or until the Agreement is terminated earlier in accordance with the terms of this Agreement (“Continued Duration”).
2.3 If:
2.3.1. Plan does not wish to extend this Agreement beyond the Initial Term or any Continued Duration then it shall give the Partner not less than 30 days written notice of termination;
2.3.2. the Partner does not wish to extend this Agreement beyond the Initial Term or any Continued Duration then it shall give Plan not less than 90 days written notice of termination;
in each case the notice to expire on the last day of the Initial Term or Continued Duration.
3. Role of the Partner
3.1. For the Duration, Plan appoints the Partner as a non-exclusive representative in the Territory for purposes of promoting, supporting and reselling the Services.
3.2. It is a condition of this Agreement that the Partner shall at all times:
3.2.1. act in good faith, in accordance with Good Industry Practice and with all due skill and care in its dealings with its Customers and Plan;
3.2.2. act in the best interests of Plan and notify Customers and prospective Customers that Plan provides the Services;
3.2.3. manage and support Customers in accordance with the Service Specific Conditions;
3.2.4. ensure that the guideline scrips provided by Plan, as amended from time to time are abided by and followed to ensure compliance with all Applicable Laws;
3.2.5. ensure that its interests do not conflict with the duties it owes to Plan under this Agreement and/or any Applicable Laws; and
3.2.6. behave in a way that enhances Plan's reputation and brand.
any breach of this condition shall give Plan the right to terminate this Agreement as a material breach incapable of remedy in accordance with the provisions of clause 24.3(a).
3.3. The Partner shall, from time to time and in accordance with clause 17.2(h), provide to Plan such information as Plan may reasonably require concerning the Partner's activities under the Agreement.
3.4. The Partner shall sell only Services which Plan has authorised the Partner to sell as more particularly described in this Agreement.
3.5. The Partner shall be responsible for undertaking appropriate due diligence in relation to each Customer including but not limited to confirming:
3.5.1. the identity and address of the Customer;
3.5.2. the financial standing of the Customer and its ability to pay for the Services;
3.5.2.1. the capacity in which the Customer is buying the Services;
3.5.2.2. the authority of the person placing the order to place the order on behalf of the Customer; and
3.5.2.3. the bank account and direct debit authorities for each of its Customers.
3.6. The Partner agrees that Plan may (and can) from time to time review and carry out inspections of the Partner's business in accordance with clause 12 (including in relation to the Partner's performance of the Services).
3.7. The Partner shall not without prior written consent of Plan (and then only acting strictly on Plan's written instructions) take part in any dispute or commence or defend any court or other dispute proceedings or settle or attempt to settle or make any admission concerning any such proceedings on behalf of Plan.
3.8. Unless previously agreed by the Parties in writing or as permitted in the Agreement, Partner will not during the term of the Agreement actively cross-sell any additional products or services to In Contract Customers, that are in direct competition with any of the Services provided by Plan.
3.9. If any leads for potential Customers are provided by Plan to the Partner, the Partner agrees that it shall use those leads only to connect Customers to the Services provided by Plan.
3.10. If the Service Term specified in a Customer Contract has expired or is nearing expiry, the Partner shall use all reasonable efforts to ensure that the relevant Customer enters into a new Customer Contract.
3.11. If a Connection is In Contract and
3.11.1. a Customer has requested a Disconnection; or
3.11.2. another communications provider has requested a port of a Connection, and the Partner does not make all reasonable endeavours to recommit such Connection within that period; or
3.11.3. the Contract is being terminated and there is an outstanding payment owed to Plan, then Plan has the right to recommit and retain that Connection itself. Plan may also take over the management of that Connection or unilaterally transfer it to another Partner.
3.12. The Partner shall provide Plan with reasonable advance notice and in any event not less than 10 Business Days' notice in writing before either:
3.12.1. trading with any other Partner; or
3.12.2. connecting an existing Partner Handled Customer to another network.
4. Orders, Renewals and Service Provision
4.1. The Partner shall, on its own behalf place each Order directly with Plan on the Portal or such other medium as Plan may designate.
4.2. The minimum requirements for each Order shall be as set out on the Portal.
4.3. Plan may, in its sole and absolute discretion, reject any Orders submitted on the Portal and Plan shall not incur any obligation to the Partner or to any third party by rejecting an Order. Plan will use its reasonable endeavours to notify the Partner of its decision to accept or reject an Order within a reasonable period of time. Any failure on the part of Plan to provide such notification, does not constitute Plan's acceptance of the Order.
4.4. An Order shall only become a legally binding contract and considered to be accepted once:
4.4.1. an Order has been properly completed on the Portal;
4.4.2. Plan can fulfil the request for Services within the Order; and
4.4.3. Plan has accepted the Order. Any failure on the part of Plan to provide such notification does not constitute Plan's acceptance of the Order.
4.5. Each accepted Order shall form a separate contract and shall be on Plan's standard terms and conditions in force at the date of the Order. Plan will be responsible to the Customer for the provision of the Services.
4.6. Once an Order has been accepted, the Partner acknowledges that a Network Operator or other third party supplier may contact it directly in relation to the Services, including in relation to quality checks.
4.7. The Partner may cancel the Order or any part of it at any time before Plan the connection date of the Order in accordance with clause 4.4. If the Partner cancels the Order or any part of it after acceptance has been confirmed, it must pay Plan any cancellation charges specified in the Order.
4.8. Plan may amend, replace, suspend or discontinue any of the Services at any time but Plan will, where practicable, provide the Partner with reasonable advance notice having regard to the nature of the change.
4.9. The Partner shall not at any time:
4.9.1. other than in the case of a Renewal, encourage Customers to terminate an existing Customer Contract and enter into a new Customer Contract for which Commission is payable to the Partner by Plan; and
4.9.2. without the prior written consent of Plan offer or agree to Co-Terminus Customer Contracts.
4.10. The Partner shall not sell the Services to a Customer or prospective Customer or conclude any Customer Contract by means of telephone, email or other form of distance communication where the Customer or prospective Customer is not present unless:
4.10.1. the Partner has Plan's prior written permission to do so which may be revoked at any time by Plan; and
4.10.2. the Partner complies at all times with the provisions of Schedule 4.
4.11. The Partner shall:
4.11.1. ensure that the signatory details provided to Plan in respect of all Customer Contracts are those of authorised signatories of the Customer; and
4.11.2. provide Plan with such other Customer details as may be requested by Plan as soon as practicable (and in any event within seven (7) days of the date of request for the same).
4.12. If the Partner wishes to migrate or Upgrade a Customer Connection, the Partner agrees to do so via the Portal.
5. Dealing with Third Parties (including Customers)
5.1. For the Duration, the Partner may describe itself to third parties (including Customers) as a sales partner of Plan in any dealings with such third party concerning the Services but for the avoidance of any doubt never as an agent of Plan. The Partner is not permitted to enter into any agreements for the provision of the Services or to hold itself out as having the right to bind Plan in relation to any agreement for the provision of the Services.
5.2. Commission payable in respect of and prices and rates payable for the Services, when produced from the Portal and accepted by the Partner, are fixed.
5.3. When a Partner contacts a prospective Customer, the Partner must (in accordance with Good Industry Practice) make a reasonable assessment as to whether it has the requisite experience, expertise and resources to meet the requirements of that prospective Customer (including whether the Customer is a business customer). This requirement is an on-going requirement and if the Partner becomes aware or should have become aware of the pending insolvency or inability of the Customer to pay its debts, the Partner should make Plan aware of such information as soon as reasonably practicable. If the Partner is unable, or in the Partner's reasonable opinion may be unable, to meet the prospective Customer's requirements, the Partner must inform Plan immediately of the same in writing stating the reasons as to why it is unable to meet such requirements.
5.4. The Partner is obliged to meet or exceed the following (each being a "Minimum Service Requirement"):
5.4.1. responding to all Customer queries within twenty four (24) hours and, in respect of all Customer queries which it has been unable to resolve within that twenty four (24) hour period, the Partner shall provide the Customer with updates within twenty four (24) hours of the initial query and each subsequent twenty four (24) hour period thereafter, and shall successfully resolve such queries in a timely manner to the reasonable satisfaction of the Customer;
5.4.2. depending upon the Customer's size, spend and potential requirements, contacting each Customer regularly (and no less than every six (6) months) throughout the Duration;
5.4.3. using its best endeavours to ensure Customers which are not In Contract enter into new Customer Contracts with Plan; and
5.4.4. the Partner shall provide pre-sales and post-sales support services to Partner Handled Customers in a timely and professional manner and use all reasonable endeavours to resolve or escalate Customer issues to Plan Customer issues as may be necessary.
5.5. The Partner shall:
5.5.1. not lead any Potential Customer or Customer to believe that the Partner is employed by or representing Plan itself, or any supplier or competitor of Plan, including but not limited to O2, EE, BT or any of their subsidiaries or associates;
5.5.2. act in accordance with Good Industry Practice and sound commercial principles in its relations with Customers and Potential Customers (including as to assessing, and obtaining independent assessments of, their creditworthiness) and to refrain from anything Plan reasonably considers could be prejudicial to its goodwill or commercial interests;
5.5.3. not levy any charges to Potential Customers or to Customers for the use of the Services or otherwise unless such charges have been previously approved by Plan in writing;
5.5.4. to the extent it carries out the Activity (as that term is defined in Schedule 4 of this Agreement), comply in full with the terms and conditions of Schedule 4;
5.5.5. attend meetings or teleconferences with Plan at Plan's reasonable discretion, at a mutually convenient time and during Business Hours, in order to review Partner's performance of the Agreement and any issues arising from its operation;
5.5.6. only use any information accessible to Partners through the Portal, strictly for the purposes of the Agreement and (where applicable) for the Activity. Partner shall not share this information with any third party, in particular with any other Partner's clients. Partner shall keep this information confidential and separate from any other data Partner may have from any other Partner's clients (or from any other third party);
5.5.7. keep Customer's records and databases safe and separate from any other databases containing details of the Partner's other clients;
5.5.8. not remove, tamper or obliterate any labels, notices tags, legends or otherwise interfere with any Intellectual Property used in or in connection with the Services;
5.5.9. obtain Plan's prior written approval for the use of any sales material or documentation related to the Services (particularly if such material or documentation contains any Intellectual Property Rights relating to Plan or its suppliers);
5.5.10. ensure that the Services offered to a Potential Customer are suitable for the Potential Customer (e.g. Partner will check that the coverage the Network Operator provides is adequate before placing an Order).
6. Portal
6.1. Plan shall provide the Partner and its Authorised Users with access to the Portal to enable the Partner to carry out sales analysis, process orders and comply with its obligations under this Agreement. Plan may suspend or remove the Partner's access to the Portal at any time with or without notice and at Plan's absolute discretion.
6.2. Plan may, upon request by the Partner, provide each Authorised User with a username and the facility to create and manage a password.
6.3. The Partner shall:
6.3.1. undertake that each Authorised User will keep its username and password secure and confidential;
6.3.2. not allow anyone to use the Portal who is not an Authorised User;
6.3.3. update Plan if the number of Authorised Users changes;
6.3.4. use all reasonable endeavours to prevent any unauthorised access to, use of or dissemination of any information contained within the Portal and shall, in the event of any such unauthorised access, use or dissemination, promptly notify Plan;
6.3.5. comply with any identity verification (IDV) process implemented by Plan to ensure secure communications and interactions with Plan through Authorised Users; and
6.3.6. shall be liable for all acts or omissions of an Authorised User.
6.4. The Partner shall use the Portal in accordance with the Portal User Guide.
7. Support and Training
7.1. Its personnel shall be entitled to attend such courses as Plan may agree with the Partner. The costs associated with such courses will be charged at Plan's then current rates as notified to the Partner by Plan. The Partner acknowledges and agrees that authorisation to promote and/or market certain Services may require the Partner to satisfy necessary training and accreditation requirements.
7.2. Where Plan requires the Partner to undertake any training or meet any certification and/or accreditation requirements relating to any of the Services (as may from time to time be notified by Plan to the Partner), the Partner shall be permitted to market and promote such Services only once Plan is satisfied that the Partner has met such requirements.
8. Charges and Commissions
8.1. The Partner shall pay the Charges in accordance with the payment terms set out in this Agreement.
8.2. Where practicable, Plan shall give the Partner twenty eight (28) days' notice in writing of any changes in the Charges for the Services.
8.3. Plan shall pay the Partner Commission at such times and in such manner and for such amounts as set out in Schedule 3 and/or the Portal and/or the Partner Guide.
8.4. Plan may, prior to the issue by the Partner of any invoice in respect of Commission, perform a reconciliation of any amounts which the Partner owes to Plan whether under this Agreement, any other agreement with Plan (including any amounts due under an agreement for the provision of telephony services to the Partner) or otherwise, which Plan may set off against amounts which Plan owes to the Partner for Commission. The invoice shall set out the net amount that Plan owes to the Partner. Where that net amount is negative (because the amounts which the Partner owes to Plan exceed the amounts which Plan owes to the Partner) or less than £5 (five pounds sterling), Plan may (in its sole and absolute discretion) carry the deficit forward for reconciliation in the following invoice.
8.5. If in the opinion of Plan any amount owed by the Partner to Plan whether under this Agreement or otherwise is at risk of not being paid, then Plan may in its absolute discretion suspend or cease the payment to the Partner of Commission and/or any Revenue Share.
8.6. Plan shall not be obliged to pay a Commission where any of the required paperwork or information (including any paperwork or information in electronic form as may be required) in connection with a Customer or Customer Contract or the Partner has not been received by Plan. Such paperwork may include, a copy of the Customer Contract, self-billing form, proof of VAT registration, Direct Debit instruction form, Order, copy of 3 months of bills or such other paperwork as may be notified from time to time in the Partner Guide or on the Portal.
8.7. All invoices under or in connection with this Agreement shall be paid within thirty (30) days of receipt by the paying party unless another payment period has been specified for that payment elsewhere in this Agreement.
8.8. The Partner shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the Services.
8.9. If the Partner disputes an invoice, it shall notify Plan in writing within fourteen (14) days of the date of the invoice giving its reasons for such dispute. Such dispute shall be resolved in accordance with clause 22.
8.10. All amounts payable under the Agreement are exclusive of value added tax or other sales tax, which shall be paid at the prevailing rate.
8.11. Either Party may charge the other interest at a rate of 2% per annum above the base rate from time to time of Royal Bank of Scotland International (part of the Royal Bank of Scotland plc) to be calculated on a daily basis on any amounts due under the Agreement. Such interest being payable from the due date until the date of actual receipt by the Party of outstanding amounts (whether before or after judgment).
8.12. In addition to charging interest or exercising any other rights Plan has at law or pursuant to the terms of this Agreement, where an amount which is not disputed and is outstanding and remains unpaid after the due date, Plan reserves the right to take action, without further notice to the Partner, to recover such amount.
8.13. Plan shall be under no obligation to make available to a Partner any of the Monthly Tariffs or rates that may be available to any other Partner or elsewhere (including those set out on the Portal or any other marketing or promotional material).
8.14. Subject to clause 8.9, the Partner shall not be entitled to apply any set-off, counterclaim, abatement, deduction or withholding (other than any deduction or withholding of tax as required by law) or claim the same in respect of any sums that it owes to the Plan under the Agreement or under any other agreement between the Parties against any sums that Plan owes to the Partner under the Agreement.
8.15. Plan may set-off, withhold, counterclaim for or deduct from any sums which Plan owes to the Partner against any sums which the Partner owes to Plan, whether under the Agreement or otherwise.
8.16. Plan may withhold payment of and/or claw back Commission paid to the Partner in accordance with the provisions of Schedule 3.
8.17. All costs, expenses and charges which the Partner incurs in the performance of the Partner's obligations under the Agreement shall be paid by the Partner unless Plan has expressly agreed beforehand in writing to pay such costs, expenses or charges.
8.18. In order to procure and/or provide the Services, where substantially greater costs than usual are incurred by Plan, Plan may charge excess Charges, as set out in the relevant Service Specific Conditions. Before incurring such additional costs Plan will advise the Partner and if the Partner does not wish to pay such additional charges the Partner may cancel the Order.
9. Financial Security
9.1. The Partner shall, within ten (10) Business Days after any request, provide Plan with any financial information as reasonably requested by Plan.
9.2. Plan may credit assess the Partner from time to time as reasonably required.
9.3. Plan may upon notice require the Partner to provide Plan with such security as Plan may reasonably require, and amend the payment terms if reasonably required, for example, in the event of a deterioration of the financial standing of the Partner. Failure to provide such security within a reasonable time period stipulated by Plan shall be deemed to be a material breach of the Partner's obligations under this Agreement.
9.4. If Plan requires the Partner to deposit with it an amount by way of security for payment of any sums due from the Partner under this Agreement or otherwise:
9.4.1. the Partner shall pay the amount requested by Plan to Plan within 5 Business Days of the date on which the request was made ("Security Deposit");
9.4.2. subject to the remaining provisions of this clause, Plan shall hold the Security Deposit on trust for the Partner;
9.4.3. the Security Deposit:
9.4.3.1. shall not accrue interest;
9.4.3.2. may be used by Plan to pay any amount owed to Plan by the Partner under this Agreement or otherwise and which has not been paid to Plan on the due date for payment provided that Plan shall notify the Partner of any such payment whereupon the Partner shall pay to Plan an amount equal to the sum paid out of the Security Deposit;
9.4.3.3. shall be repaid to the Partner in accordance with the specific terms agreed between the parties regarding the Security Deposit repayment. The amount to be repaid shall be the sum of the Security Deposit less:
9.4.3.3.1. any amounts which have been deducted by Plan and not replaced by the Partner under sub-clause (ii) above; and
9.4.3.3.2. any amounts due to Plan under this Agreement or otherwise at the date of repayment as determined by Plan.
10. Complaints and Queries
10.1. Any complaints or queries regarding the Activity or Services or the provision thereof received by the Partner must be notified to Plan in writing (together with all available details) within 1 Business Day of receipt. The Partner shall comply with the Complaints Procedure and action or respond to such complaints or queries as required by Plan and shall provide all reasonable assistance required by Plan at the Partner's expense.
10.2. Following receipt of a complaint from a Customer or Regulatory Body about the Partner, the Partner shall take steps to resolve the complaint expeditiously and in any event within 7 days. If the Partner has not resolved a complaint to the satisfaction of the relevant Customer or Regulatory Body within 7 days of receipt of the complaint, then the Partner shall notify Plan of the details of the complaint and the steps that the Partner has taken to resolve it.
10.3. The Partner shall ensure that throughout the term of the Agreement it:
10.3.1. (a) is a member of either the Communications & Internet Services Adjudication Scheme (CISAS) or the Ombudsman Services: Communications adjudication services and in each case complies with their respective terms and conditions of membership and on demand shall provide Plan with evidence of such membership;
10.3.2. (b) has in place its own complaints handling policy and has adopted appropriate procedures and processes to enforce such policy. On demand the Partner shall provide Plan with a copy of the Partner's complaints handling policy and such additional information concerning the associated procedures and processes as Plan may require.
10.4. The Partner shall on demand reimburse Plan with all and any costs incurred by Plan in relation to any complaint from a Customer which is referred to either of the Communications & Internet Services Adjudication Scheme (CISAS) or the Ombudsman Services: Communications adjudication services.
11. Regulatory Responsibilities
11.1. The Partner is solely responsible for ensuring its own compliance with Applicable Laws, and industry practices (including codes of conduct) relating to the performance of the Services in force from time-to-time. Nothing in the Agreement shall require either Party to act otherwise than in accordance with the Applicable Laws.
11.2. For the Duration, the Partner must obtain and maintain any and all Authorisations that are required by it to carry on its activities under the Agreement (including the promotion and marketing of the Services). The Partner shall notify Plan immediately in writing (providing all relevant details) if its ability to comply with Applicable Laws or any Authorisation ceases, or is terminated or lapses.
11.3. The Partner warrants to Plan on the date of the Agreement and on a continuing basis that it is not involved in and it will not be involved or permit another person to be involved in Fraud. If the Partner becomes aware of Fraud, the Partner shall inform Plan of the same immediately in writing. Where Plan suspects Fraud in relation to a Customer, the Partner shall provide a copy of the correctly completed Customer Contract and all relevant documentation for Plan to determine whether Fraud occurred. If Plan discovers Fraud, without limiting Plan's other rights and where Plan is permitted by Applicable Laws, Plan will make available to the Partner reasonable details of the Fraud.
11.4. The Partner shall promptly inform Plan if the Partner receives a request from or on behalf of any Customer or potential Customer for the porting of any Customer Connection to another service provider or network operator.
11.5. The Partner shall provide Plan with such information and perform such actions as requested by Plan and as is necessary to enable Plan to comply with its regulatory obligations including those imposed under the General Conditions of Entitlement.
11.6. The Partner warrants and undertakes to comply with any General Conditions of Entitlement which apply to it in respect of its obligations set out under this Agreement.
12. Records and Audit
12.1. Subject to clause 15 (Data Protection), the Partner must keep complete and accurate records of the Services it carries out under the Agreement and store all documents, information and data (whether in written, oral, machine readable, visual, electronic (including, magnetic or digital) or any other form) ("Records"). The Records shall be stored in a format required by Plan for a period of seven (7) years from termination of the Agreement. On request by Plan the Partner shall return to Plan such Records (subject to any obligations that the Partner may have to retain a copy of such Records in accordance with Law).
12.2. The Partner must:
12.2.1. maintain a system to ensure compliance with the terms of this clause 12 (Records and Audits);
12.2.2. ensure that only authorised Partner personnel have access to the Records; and
12.2.3. ensure that adequate back-up and disaster recovery facilities and procedures are in place in the event that the Partner's system or any other medium through which the Records are accessed, breaks down or otherwise fails to operate properly.
12.3. At any time, upon Plan giving reasonable prior notice to the Partner (unless Plan believes the Partner is or is likely to be in material breach of the Agreement, in which case such notice shall not be required) during the Duration and thereafter until all the Partner's rights, obligations and duties have come to an end under the Agreement or (if later) under Law, Plan shall be entitled to conduct its own audit of the Partner in connection with the Partner's obligations under the Agreement.
12.4. The Partner shall promptly, upon receiving reasonable notice from Plan, allow Plan and/or representatives of Plan access to any of its offices during Business Hours for these purposes. The Partner shall co-operate fully with any such audit and supply promptly such information, data and records (whether stored electronically or otherwise) of whatsoever nature relating to the Services and the Partner's obligations under this Agreement as may be reasonably requested by Plan. Plan shall be entitled to make copies or take extracts of the same and the Partner shall provide copying facilities at no charge to Plan.
12.5. Any breach by the Partner of any of the terms of clause 12.1 to 12.4 which results in Plan being unable to assert Plan's rights or demonstrate legal or regulatory compliance in relation to Customers shall be considered a material breach which is not capable of remedy for the purposes of clauses 24.3(a). The Partner hereby grants to each Regulatory Body the same rights as those granted to Plan under this clause 12 (Records and Audits), save that such rights may be exercised at any time in order for the Regulatory Body to supervise the performance of the Services. The Partner shall co-operate with Plan and any Regulatory Body and assist the Regulatory Body and Plan in any of Plan's dealings with any Regulatory Body or any application for Authorisation or other permit which are relevant to the arrangements comprised in the Agreement.
13. Confidentiality
13.1. Each Party shall keep the other's Confidential Information confidential and shall only use it for the purpose for which such Confidential Information was disclosed or as permitted under the Agreement.
13.2. Either Party may disclose the Confidential Information of the other only to those employees, subcontractors or advisors who need to know such information and who are bound by equivalent obligations of confidentiality as those imposed by this Agreement.
13.3. The provisions of clause 13.1 (Confidentiality) do not apply to any disclosure of Confidential Information where such Confidential Information:
13.3.1. becomes generally available to the public without a breach of this clause 13 (Confidentiality); or
13.3.2. can be demonstrated was already known to the receiving party prior to the disclosure hereunder free from any restrictions as to disclosure or use; or
13.3.3. has been disclosed, without an obligation of confidentiality, to the receiving party; or
13.3.4. has been independently developed by the receiving party; or
13.3.5. in the case of Plan, to the extent it is required to disclose Confidential Information in the normal course of business or to its lenders, investors or potential investors.
13.4. A Party may disclose Confidential Information to the extent required by a court or Regulatory Body or as required by Applicable Laws.
14. Intellectual Property Rights, Goodwill, Reputation and Brand
14.1. The Partner is permitted to promote and market the Services or refer to the Services for the Duration in any publicity or other documentation by using Plan's trade marks as directed by Plan from time to time (including in accordance with brand guidelines issued by Plan from time to time on the Portal) but the Partner does not have, nor will the Partner receive, any proprietary rights in or title to Plan's trade name, trade mark(s) or other Intellectual Property Rights of, or used by Plan.
14.2. The Partner agrees to let Plan know as soon as possible if the Partner becomes aware of any actual, threatened or suspected infringement or improper use of Plan's trade name, trade mark or other Intellectual Property Rights or any allegation that the Services infringe any Intellectual Property Rights of any third party. The Partner also agrees not to make any admission or statement which might affect Plan's ability to prosecute or defend any claim or which might otherwise prejudice Plan's interests or the interests of a Plan Group Company.
14.3. The Partner shall not use any other trade marks or individual style or titling in relation to any of the Services and shall not use any trade marks or trade names which resembles or is similar to Plan's trade marks and trade names.
14.4. The Partner agrees to take all steps Plan may reasonably require to assist Plan in protecting and maintaining Plan's Intellectual Property Rights and those of any Plan Group Company. Plan shall pay for such assistance as long as Plan has given prior written permission for the costs which the Partner will incur in providing assistance.
14.5. Plan shall own all goodwill accruing to Plan's trade marks and trade names or those of any Plan Group Company.
14.6. The Partner's own trade names, trade marks, logos or service marks shall be kept entirely separate from those of Plan and no composite mark shall be used by the partner unless previously agreed and approved by Plan in writing.
14.7. Partner shall not use any trade name, trade mark, service mark or logo belonging to any business partner or supplier of Plan, including but not limited to O2, BT, EE or any of their subsidiaries or associates unless Plan has approved so in writing.
14.8. The Partner shall not carry out business in a manner which is likely to or could reasonably be anticipated or expected to damage the goodwill, Intellectual Property Rights, reputation and/or brand of Plan.
14.9. Whenever the Partner promotes and markets the Services, it will not make any representations, warranties or guarantees in relation to the Services unless they have otherwise been agreed to be given by Plan in writing.
14.10. Plan shall provide to the Partner (at the Partner's cost, unless otherwise agreed in writing between the Parties) advertising and promotional materials, which the Partner reasonably requires to promote and market the Services within a reasonable time following the Partner request. The price for such materials will be as set out in Plan's standard list prices as published on the portal from time to time.
14.11. The Partner shall only be permitted to use Plan's name or any logo, trade mark or trade name of Plan or refer to this Agreement in any public statement, advertising or publicity in accordance with the Plan advertising guidelines set out on the Portal on the Commencement Date as the same may be updated from time to time.
14.12. The Partner shall avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Plan, the Network Operator, the Services or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to Plan, the Network Operator or the Services.
14.13. Upon termination of this Agreement for any reason whatsoever, the Partner shall immediately cease to make use of Plan Intellectual Property and shall do and execute all such acts, deeds and things that Plan shall require for the purpose of cancellation of the non-exclusive licence granted hereunder. Partner shall return all forms, materials or papers provided by Plan or held by the Partner relating to Plan's Intellectual Property Rights.
14.14. In the course of promoting, distributing or selling the Services, the Partner is prohibited from:
14.14.1. Using EE trade names, logos, or service marks without express permission;
14.14.2. Publishing or allowing the publication of any comparison between its/Plan's services and any product or service made available by EE or any of EE's associates;
14.14.3. Using any marketing campaigns or methods of solicitation that intentionally or specifically target or solicit customers to whom EE provides services that are the same or similar to the MVNO Services, without Plan's consent this does not prevent the Partner from providing services to any customers who request them within the United Kingdom;
14.14.4. Sharing any details of Plan's agreement with EE;
14.14.5. Using EE's name, branding, or trademarks in any advertising or promotional materials;
14.14.6. Using EE's name, branding, or trademarks on any form of social media activity (whether paid, earned, or owned) to promote itself or the services it provides with Plan;
14.14.7. Communicating publicly (in any manner) that network coverage is provided by EE; and
14.14.8. Transferring services, whether directly or indirectly, from one Plan network to another in contravention of Plan's standard procedures for renewing services via the Portal.
15. Data Protection
15.1. In this clause 15 (Data Protection), the terms "data controller", "data processor", "data subject", "personal data", "sensitive personal data" and "process" will each have the meaning attributed to them in the Data Protection Act 1998 until 25 May 2018 and thereafter shall have the meaning given to them in the GDPR.
15.2. Both Plan and the Partner shall comply at all times with (and in the case of the Partner, procure that its subcontractors and any Group Company complies with) the Data Protection Legislation in relation to all personal data that is processed by it in the course of performing its obligations under the Agreement in respect of the types of personal data, categories of data subjects, nature and purposes as determined by Plan from time to time.
15.3. Each party shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Legislation and shall make such information available to any DP Regulator on request.
15.4. With respect to the Parties' rights and obligations under the Agreement, the Parties agree that until such time as a potential Customer is referred to Plan the Partner is the Data Controller of the potential Customer's personal data for the purposes of Data Protection Legislation. The Parties agree that following referral to Plan, Plan is the Data Controller of any personal data provided pursuant to the referral and the Partner is the data processor of such data for the purposes of the Agreement and the provision of the Services. Before being provided with any information about a Customer and/or any Customer Contract held by Plan, the Partner shall obtain written permission from the relevant Customer in accordance with clause 4.11(b) and shall notify Plan immediately if such permission is withdrawn.
15.5. The Partner acknowledges that in the performance of the Agreement it will act for the purposes of the Data Protection Legislation as a data processor, appointed by Plan and will have access to and be provided with data which includes personal data and sensitive personal data relating to Plan, its Affiliates, its clients, agents, employees and other parties to any matter, including, claimants or defendants, witnesses, party representatives or nominees ("Plan Personal Data"). In processing Plan Personal Data, the Partner warrants and undertakes that for the duration of this Agreement, it shall:
15.5.1. Process the Plan Personal Data
15.5.1.1. only in accordance with Plan's written instructions from time to time (including those set out in this Agreement), unless it is otherwise required by Applicable Laws (in which case, unless such law prohibits such notification on important grounds of public interest, the partner shall notify Plan of the relevant legal requirement before processing the Personal Data);
15.5.2. Treat Plan Personal Data as Confidential Information and the Partner shall ensure that appropriate technical, organisational and security measures are implemented and maintained to prevent unauthorised or unlawful processing of Plan Personal Data and accidental loss or destruction of, or damage to the Plan Personal Data. These measures shall be appropriate to the harm and/or reputational damage which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Plan Personal Data and having regard to the nature of the Plan Personal Data which is to be protected;
15.5.3. Not process the Plan Personal Data for any purpose other than those set out in this Agreement or otherwise expressly authorised by Plan and not use the Plan Personal Data other than for the purpose of providing the Services and for the avoidance of doubt the Partner shall not use any Plan Personal Data for any other purposes, in particular the Partner's own purposes, nor disclose it to any group company or third party;
15.5.4. Correct, suppress, delete and block Plan Personal Data as requested by Plan from time to time;
15.5.5. Inform Plan within 24 hours if any Plan Personal Data is (while within the Partner's or its subcontractors' or Affiliates' possession or control) subject to a personal data breach (as defined in Article 4 of GDPR) or is lost or destroyed or becomes damaged, corrupted or unusable;
15.5.6. Not permit any Affiliate or third party access to any Plan Personal Data without the prior written consent of Plan and then only subject to the terms of a written agreement imposing the obligations contained in this clause 15 on the Affiliate or third party;
15.5.7. Not process any Plan Personal Data (or permit such Plan Personal Data to be processed by an Affiliate or third party) outside of the European Economic Area without the prior written consent of Plan, which consent (if granted) will be subject to the Partner entering into a binding data transfer agreement with the party to whom the data is being transferred which will meet in full the EEA requirements for transfer of Plan Personal Data outside the EEA and will incorporate the EU model clauses for such transfer, or shall otherwise meet the requirements of Directive 95/46/EC for such transfers;
15.5.8. Only appoint a third party (including any subcontractors and Affiliates) to process Plan Personal Data with the prior written consent of Plan;
15.5.9. Not disclose any Plan Personal Data to any data subject or to a third party other than at the written request of Plan or as expressly provided for in this Agreement;
15.5.10. As Plan so directs, return or irretrievably delete all Plan Personal Data on termination or expiry of this Agreement, and not make any further use of such Plan Personal Data (except to the extent Applicable Laws require continued storage of the Plan Personal Data by the Partner and the Partner has notified Plan accordingly);
15.5.11. Provide to plan and any DP Regulator all information and assistance necessary or desirable to demonstrate or ensure compliance with the obligations in this clause 15 and/or the Data Protection Legislation;
15.5.12. Take such steps as are reasonably required to assist Plan in ensuring compliance with its obligations under Articles 30 to 36 (inclusive) of GDPR;
15.5.13. Provide Plan with its full co-operation and assistance in relation to any request made by a Data Subject to exercise its rights under the Data Protection Laws in relation to that person's Personal Data;
15.5.14. Take reasonable steps to ensure the reliability of all its personnel who have access to the Plan Personal Data, and ensure that any such personnel are committed to binding obligations of confidentiality when processing Plan Personal Data; and
15.5.15. Ensure that only those persons expressly authorised to have access to the Plan Personal Data for the purpose of the Partner performing its obligations under the Agreement shall have access to the Plan Personal Data and that each person undertakes to abide by the obligations of the Partner regarding Plan Personal Data in accordance with the Agreement.
15.6. The Partner undertakes to inform Plan promptly in the event of:
15.6.1. Any unauthorised or unlawful processing of personal data (including the Plan Personal Data) or in the event of any accidental loss, destruction or damage to personal data (including the Plan Personal Data) to the extent that the Partner is aware of such an unauthorised or accidental event; and
15.6.2. the receipt by the Partner of any complaint, notice or communication which relates directly or indirectly to the processing of the Plan Personal Data or to either Party's compliance with the Data Protection Legislation and it shall provide Plan with full co-operation and assistance in relation to any such complaint, notice or communication.
15.7. The Partner shall permit Plan or its agent or representative at all reasonable times and on reasonable notice to enter any place where the processing of Plan Personal Data is carried on for the purpose of inspecting and verifying the compliance of the Partner with its obligations under the Agreement relating to data protection and the Data Protection Legislation.
15.8. In the event that the Partner receives a request from an individual for access to Plan Personal Data held by the Partner or seeking to exercise its rights as a data subject, the Partner shall promptly forward such request to Plan for the attention of the Legal and Compliance Team and in any event within 2 Business Days of receipt. The Partner undertakes to promptly respond to any request for any information made by Plan in respect of a data subject access request.
15.9. The Partner shall not perform its obligations under the Agreement in such a way as to cause Plan to breach any of its applicable obligations under the Data Protection Legislation.
15.10. The Partner acknowledges and agrees that to the extent permissible by law, the Partner will satisfy its obligations under this Agreement and the Data Protection Legislation by acting in accordance with the Plan Privacy and Data Protection Policy which can be found on plan.com and which shall form part of this Agreement.
15.11. The Partner shall indemnify and keep indemnified at its own expense Plan against all claims, liabilities, damages, administrative fines, costs or expenses incurred by Plan or for which Plan may become liable due to any failure by the Partner or its sub-processors, subcontractors, agents or personnel to comply with any of its obligations under this Schedule or under the Data Protection Legislation.
16. Anti-bribery and Anti-slavery
16.1. The Partner acknowledges that Plan is committed to eliminating all risk of bribery and corruption in its supply chain.
16.2. The Partner acknowledges and agrees that Plan shall not be under any obligation to carry out any action or make any omission under this Agreement to the extent that Plan reasonably believes it would be in breach of any Anti-Corruption Legislation.
16.3. The Partner acknowledges and agrees that neither it nor any third party has breached any Anti-Corruption Legislation in order for the Partner to enter into this Agreement.
16.4. The Partner acknowledges and agrees that to the extent permissible by law, the Partner will satisfy its obligations under this Agreement and the Anti-Corruption Legislation by acting in accordance with the Plan Anti-Bribery Policy which can be found on plan.com and which shall form part of this Agreement.
16.5. The Partner shall take reasonable steps to ensure that slavery and human trafficking (as such phrase is defined in section 54(12), Modern Slavery Act 2015) is not taking place in any of its supply chains or in any part of its own business. The Partner shall, at Plan's request, provide Plan with a statement of such steps it has taken, together with such other information as Plan may reasonably require in order to enable it to prepare a slavery and human trafficking statement in accordance with section 54, Modern Slavery Act 2015.
17. Warranties, Undertakings and Indemnities
17.1. Each Party represents, warrants and undertakes that:
17.1.1. it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights and licences referred to in this Agreement and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it; and
17.1.2. it shall comply with all Applicable Laws in the performance of its obligations under this Agreement.
17.2. The Partner undertakes and agrees with Plan to:
17.2.1. act fairly and reasonably in all dealings with Customers;
17.2.2. other than as permitted under clause 18, the Partner agrees not to solicit or approach Customers managed by Plan or by other Partners;
17.2.3. co-operate, at all times, with Plan and in particular, comply with any instructions or reasonable requests made by Plan as a result of any requirement of a Regulator;
17.2.4. employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Partner's obligations under this Agreement;
17.2.5. not act in a way as to cause a degradation of Services or cause damage to the Network;
17.2.6. not introduce or allow any Viruses to be introduced to the Network or Portal;
17.2.7. not cause Plan to be in breach or any of its obligations under any Customer Contract or any agreement with a third party supplier including a Network Operator;
17.2.8. within fourteen (14) days of a written request from Plan at any time, and from time to time, provide such information as is reasonably requested by Plan about the Partner's activities, processes and/or controls to support compliance with this Agreement;
17.2.9. subject to clause 24.3.c, inform Plan immediately of any changes in ownership or Control of the Partner and of any change in its organisation or method of doing business which might affect the performance of the Partner's duties in this Agreement;
17.2.10. comply with all applicable and relevant Plan policies relating to but not necessarily limited to Plan's policies on fair use policy, hardware ordering and returns, recycling, anti-bribery and data protection all of which are available for viewing on the website of plan at plan.com; and
17.2.11. be responsible for initial fault diagnosis of any of the Services and will only report a fault via the Portal when the Partner reasonably believes that the fault is not attributable as a result of an act or omission of the Partner or Customer.
17.3. The Partner shall indemnify and hold Plan harmless against any costs, damages, liabilities, losses or expenses suffered or incurred by Plan arising out of or in connection with:
17.3.1. any liability incurred to third parties for any use of Plan or its business partners or suppliers' Intellectual Property Rights otherwise than in accordance with this Agreement, including (but not limited to) legal expenses and all costs and damages awarded or agreed to in settlement of a claim brought against Plan due to such use by Partner of Plan's Intellectual Property Rights;
17.3.2. a breach of clause 17.2; and
17.3.3. any other legal action, claims or demands brought against Plan by an End User as a result of the acts or omissions of the Partner.
18. Protection of Plan's Customers
18.1. Without limiting a Customer's freedom to choose its own service provider or to switch service providers, in consideration of Plan entering into the Agreement with the Partner and to ensure the continued distribution of the Services by Plan, during the Agreement and for a period of nine (9) months after the termination or expiry of the Agreement, the Partner agrees that it shall not (directly or indirectly, in any capacity whatsoever including procuring or facilitating another network operator or third party to do the same) solicit or entice away or seek to solicit or entice any Customer or Potential Customer away from Plan.
18.2. Any breach by the Partner of clause 18.1 shall:
18.2.1. be a material breach which is not capable of remedy giving Plan a right of termination under clause 24.3(a);
18.2.2. entitle Plan to seek any legal or equitable relief, including an injunction; and
18.2.3. require the Partner to pay to Plan an amount equal to value of the Customers enticed away from Plan in breach of clause 18.1 being an amount calculated for each Customer as follows:
CV = (MS + AC) x RM
Where:
CV = Customer Value
MS = monthly subscription payable by the Customer
AC = average additional charges paid by the Customer over and above MS calculated by adding the total amount of all additional charges paid by the customer over and above the MS in each month of the term of the Customer Contract elapsed to date of termination and dividing the same by the number of months so elapsed; and
RM = the remaining months in the Customer Contract following the date of termination.
18.3. For the Duration, the Partner shall not solicit or otherwise contact Customers which the Partner knows or ought reasonably know are Customers which either Plan manages directly or which are managed by or have been introduced by another Partner unless the relevant Customer has given prior written authorisation by letter and Plan has given its prior written consent, such consent not to be unreasonably withheld.
18.4. Subject to clauses 18.5 and 18.6 the Partner shall be responsible for managing the Partner Handled Customers and save to the extent necessary to provide and manage the Services and save to the extent set out in this Agreement Plan shall not contact or market directly to any of the Partner Handled Customers.
18.5. The Partner shall inform Plan of information about, communications with and instructions from each of the Partner Handled Customers which directly or indirectly impacts on the provision of the Services to that Partner Handled Customer.
18.6. Nothing in the Agreement shall prevent Plan from:
18.6.1. providing Services directly to a Partner Handled Customer where:
18.6.2. a Partner Handled Customer directly approaches Plan for the provision of any or all of the Services and Plan, in its reasonable opinion, decides the Partner is either unable, incapable or unwilling to provide any or all of the Services or the Customer no longer wishes to deal directly with the Partner for any or all of the Services; or
18.6.3. Plan is entitled under clause 25.2(e) to transfer management of the Partner Handled Customer to Plan;
18.6.4. sending general marketing information and promotional material to a Partner Handled Customer as part of a bona fide general marketing campaign to Customers where Plan has not specifically targeted the Partner Handled Customer; or
18.6.5. contacting and communicating with Customers for purposes other than sales including conducting Customer Satisfaction Surveys.
19. Limitations on Liability
19.1. Nothing in the Agreement shall limit or exclude either the Partner's or Plan's liability for its Fraud or for death or personal injury caused by its negligence or for any liability which cannot be lawfully excluded.
19.2. Except as specified in the Agreement all warranties, terms and conditions are expressly excluded to the maximum permitted by Applicable Laws.
19.3. Subject to clause 19.1 (Limitations on Liability) and except as expressly provided in the Agreement, Plan shall not be liable to the Partner for any loss of profit, loss of business, loss of revenue, loss of opportunity, loss of goodwill, loss of anticipated savings, loss of data, loss of contracts or any other direct or indirect or consequential loss.
19.4. Subject to clauses 19.1 and 19.3 and excluding payment obligations expressed in the Agreement, Plan's total liability under the Agreement (including Plan's liability to the Partner as a result of Plan's deliberate breach of the agreement) shall be limited in any Year to the lesser of:
19.4.1. the sum of fifty thousand pounds (£50,000); or
19.4.2. the amount of Commission payable by Plan to the Partner for the immediately preceding six (6) months from the event forming the subject matter of a claim (or if a series of events then the first event) occurred.
20. Sub-Contracting
20.1. The Partner shall not use sub-contractors, sub-distributors or sub-agents (together "Sub-contractors") to promote and market the Services unless Plan has given its prior written consent. The Partner acknowledges that it shall be a condition of Plan's consent in respect of this clause 20.1 (Sub-Contracting) that the Partner must show that the proposed Sub-contractor:
20.1.1. is of good financial standing by having sufficient financial resources to be able to perform its obligations and meet its liabilities under the written agreement referred to in sub-clause 20.1(b); and
20.1.2. has entered into a written agreement with the Partner which provides no less protection in relation to Plan's business than the terms of the Agreement and which allows Plan to enforce the terms of such agreement as a third party beneficiary.
20.2. The Partner shall provide to Plan upon request by Plan, a copy of the written agreement referred to in clause 20.1(b) prior to its execution for consideration by Plan for the purposes of clause 20.1 (Sub-Contracting).
20.3. The Partner acknowledges that it shall be a condition of Plan's consent in respect of clause 20.1 (Sub-Contracting) that:
20.3.1. any Sub-contractor shall not have the right to further sub-contract or sub-delegate their obligations in relation to the Services;
20.3.2. such consent to subcontract or delegate shall not exclude or limit the Partner's obligations and liabilities under the Agreement and that the Partner shall remain responsible to Plan for the acts and omissions of the Partner's Sub-contractors and the Partner agrees to indemnify Plan in respect of any loss which Plan as a result of the Partner appointment or termination of appointment of the Partner Subcontractors;
20.3.3. the Partner shall ensure that each Sub-contractor the Partner appoints shall be bound by obligations and restrictions which are no less onerous than the obligations and restrictions which apply to the Partner under the Agreement. Accordingly, the Partner shall ensure that its Sub-contractors or any other entity or individual to whom delegation of any of the Partner's rights or obligations under the Agreement occurs, comply with the provisions of the Agreement as if they were the Partner and the Partner shall be and remain fully responsible, in all respects, for all of the Services and obligations performed by any person on behalf of the Partner as if they had been performed by the Partner itself and references to the Partner in the Agreement shall be deemed to include reference to such persons; and
20.3.4. the Partner shall ensure that, if the Agreement terminates for any reason, the rights granted to each Sub-contractor pursuant to the Agreement shall immediately be terminated without limiting continuing obligations on them.
21. Assignment
21.1. Plan may assign, novate, transfer, pledge, encumber, declare a trust of the benefit of or in any other way alienate any of its rights or obligations under this Agreement whether in whole or in part to any of its Affiliates or any third party from time to time, without notice to the Partner.
21.2. The Agreement is personal to the Partner and the Partner shall not assign transfer, charge, mortgage or otherwise deal with, all or any of its rights, entitlements, interests, liabilities and/or obligations under the Agreement without the prior written consent of Plan, such consent not to be unreasonably withheld provided that any approved assignee agrees to be bound by the terms of the Agreement.
21.3. This Agreement will be binding upon and inure for the benefit of the Parties and their respective successors and permitted assigns.
22. Dispute Resolution
22.1. If Plan has a disagreement or dispute with a Partner in relation to any aspect of the Agreement, they each agree to use their respective best endeavours to resolve the dispute within fourteen (14) days (or such shorter period as is reasonable in the circumstances) from the date of it being raised.
22.2. If the Partner and Plan are unable to resolve the disagreement or dispute referred to in clause 22.1 within fourteen (14) days of it being raised, both Plan and the Partner agree that they will escalate the disagreement or dispute to their respective senior managers (or equivalents).
22.3. If the Partner and Plan are still unable to resolve the disagreement or dispute referred to in clause 22.1 within thirty (30) days following escalation in accordance with clause 22.2, the Partner and Plan shall (acting in good faith) seek to agree whether the disagreement or dispute should be settled through mediation rather than proceedings in an English court. If no such agreement is reached within a further period of twenty (20) days or if the Parties are subsequently unable to resolve the disagreement or dispute through mediation, either Plan or the Partner may commence proceedings through the courts of England.
23. Suspension
23.1. Without prior notice to the Partner, Plan may immediately suspend the supply of the Services, in whole or in part, if:
23.1.1. in the reasonable view of Plan, the Services:
23.1.1.1. may pose a threat to the safety of persons;
23.1.1.2. may pose a hazard which would impair or prevent the operation of equipment;
23.1.1.3. may pose a threat to the proper operation, access, integrity and/or security of the Network; or
23.1.1.4. are likely to impede the activities of authorised persons responding to an emergency.
23.1.2. the Partner ceases to be eligible at law and/or under regulation to receive the Services;
23.1.3. the Partner fails to clearly communicate that they do not represent Plan, EE or O2;
23.1.4. the Partner signs up any customer which is not a business or company;
23.1.5. The Partner does not adhere to the compliance script provided by Plan, as updated from time to time;
23.1.6. it is necessary for operational reasons such as upgrades to any of the Services or regular maintenance;
23.1.7. it is necessary for emergency maintenance; or
23.1.8. a Service has been affected by a Force Majeure event.
24. Termination
24.1. Plan may, at any time after expiry of the Initial Term and without any liability, terminate this Agreement by giving not less than thirty (30) days’ notice in writing to the Partner.
24.2. The Partner may, any time after the expiry of the Initial Term, terminate this Agreement by giving not less than ninety (90) days’ notice in writing to Plan.
24.3. Without prejudice to any other rights or remedies to which Plan may be entitled, Plan may with immediate effect by giving written notice to the Partner terminate this Agreement if:
24.3.1. the Partner commits or is believed by Plan (acting reasonably) to have committed a material breach of this Agreement which breach is not capable of remedy or which the Partner fails to remedy within a period of five (5) Business Days after being notified in writing to do so;
24.3.2. the Partner commits three or more non-material breaches of the Agreement in any consecutive three (3) months, which if capable of remedy have not been remedied within ten (10) Business Days after being notified in writing to do so;
24.3.3. there is a change in the Control of the Partner;
24.3.4. Plan is directed by the Regulator or other competent authority to cease any of the Services;
24.3.5. any amount due to Plan is unpaid for more than five (5) days after its due date for payment;
24.3.6. Plan reasonably considers that an act, omission or default of the Partner will result in a failure to comply with any Applicable Laws or may place Plan in breach of its agreement with a Network Operator;
24.3.7. the Partner suffers an Insolvency Event; or
24.3.8. the Network Operator terminates its agreement with Plan or ceases to provide Plan with the services applicable to this Agreement.
25. Consequences of Termination
25.1. At any time after notice of termination of this Agreement has been given by either Party and at any time during the period of 30 days immediately preceding the expiry of the Initial Term or any Continued Duration, Plan shall be entitled to contact any and all of the Customers with a view to signing them up to new or extended Customer Contracts managed either by Plan or one of its other partners. In such circumstances the Partner shall not be entitled to receive any commission or other payment in relation to the new Customer Contracts.
25.2. Upon termination or expiry of this Agreement:
25.2.1. the Partner shall promptly return all SIM cards which the Partner may have in its possession or under its control to Plan;
25.2.2. the Partner shall promptly return to Plan, or otherwise dispose of as Plan may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Partner and relating to Plan’s business (other than correspondence which has passed between the Parties) which the Partner may have in its possession or under its control;
25.2.3. the accrued rights of the Parties as at termination or the continuation after termination of any provision or obligation expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced;
25.2.4. subject to the foregoing provisions of this clause, all rights and licences of the Partner under this Agreement shall terminate; and
25.2.5. all monies owed by either Party to the other (which are not in dispute), including any termination charges shall become due on the date of termination or expiry and shall be paid within thirty (30) days of such date, provided that the payment of any disputed sums shall be paid pursuant to any settlement of determination arising from the dispute resolution procedure in clause 22;
25.2.6. Plan may transfer management of the Customers to Plan or another Partner.
25.3. The termination of this Agreement shall not of itself give rise to any liability on the part of Plan to pay any compensation to the Partner for loss of profits or goodwill, to reimburse the Partner for any costs relating to or resulting from such termination, or for any other loss or damage.
25.4. All clauses which expressly or by implication are intended to survive termination or expiry of this Agreement will survive and continue in force in accordance with their terms including but not limited to the provisions of clauses 8.15, 10, 11, 12, 13, 14, 15, 16, 18, 19, 28 and Schedule 3.
26. Force Majeure
26.1. If either Party is prevented, hindered or delayed from performing any obligation under this Agreement because of Force Majeure:
26.1.1. the Party affected shall:
26.1.1.1. have no liability to the other for that delay in or failure to perform its obligations affected by the Force Majeure event;
26.1.1.2. have an obligation to notify the unaffected Party in writing of the Force Majeure event and Services affected by such Force Majeure, as soon as the Party relying on the Force Majeure event considers it reasonably practicable after commencement of the Force Majeure event, and will use reasonable endeavours to mitigate the effect of such Force Majeure; and
26.1.1.3. continue performing those obligations under this Agreement that are not affected by Force Majeure and in performing those obligations shall use reasonable endeavours to deploy its resources so that (when taken with obligations to End Users and third parties) there is no undue discrimination against the other Party; and
26.1.1.4. the other Party shall be released to the equivalent extent from its obligation to make payment for such services or facilities or from complying with its obligation in relation to them.
26.2. When the Force Majeure event has ceased the affected Party shall notify the other Party that the terms of the Agreement shall be reinstated in full.
26.3. If any Force Majeure event detailed in this clause 26.1, which materially affects the performance of this Agreement, continues for more than three (3) months either Party may acting reasonably suspend the Services or terminate this Agreement by giving not less than thirty (30) days written notice to the other and provided the Force Majeure has not ceased prior to the expiry of the notice this Agreement shall terminate or be suspended as applicable.
27. Waiver
27.1. Any failure to exercise or any delay in exercising a right or remedy provided by this Agreement or at law or in equity will not constitute a waiver of a right or remedy or a waiver of any rights or remedies. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement will not constitute a waiver of any other breach or default and will not affect the other terms of this Agreement.
waiver of any breach of, or failure to enforce, any obligation of a Party or a term of this Agreement is valid unless it is in writing and signed by an authorised officer on behalf of the Party granting the waiver.
28. Severance
28.1. If any provision or part-provision of this Agreement 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 this Agreement.
29. Entire Agreement
29.1. The Agreement (including the Partner Guide(s) and any Amendment Notices) constitutes the entire agreement and understanding between the Parties in respect of the matters dealt with in it and supersedes any previous agreement between the Parties relating to such matters.
29.2. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
29.3. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
30. Variation
30.1. Plan may change the Partner Guide, which applies to Partners generally by giving reasonable notice to the Partner which may be by issue, from time to time, of a revised Partner Guide on the Portal.
30.2. Plan may, from time to time, introduce new terms and conditions or amend existing terms and conditions including as a result or consequence of new legislation, statutory instruments, Government or local regulations or licensing requirements, amendments to Plan’s standard terms and conditions for the Services or recommendations from regulatory bodies. Plan agrees that it will try to limit such new terms and conditions or amendments to existing terms and conditions to the extent that it considers they are necessary for the provision of the Services.
31. No Partnership or Agency
31.1. Each of the Parties is and shall remain at all times an independent contractor fully responsible for its own acts or defaults (including those of its employees and agents). Neither Party is authorised and neither of the Parties nor their employees, agents or representatives shall at any time attempt to act or act on behalf of the other Party to bind the other Party in any manner whatsoever to any obligations. Neither Party nor its employees, agents or representatives shall engage in any acts which may lead any person to believe that such Party is an employee, agent or representative of the other Party. Nothing in this Agreement shall be deemed to constitute a partnership between the Parties.
32. Insurance
32.1. The Partner shall have in place and shall maintain at all times throughout the term of this Agreement, adequate insurance cover against all risks normally insured against by companies carrying on the same or a similar business, for the full replacement or reinstatement value of its business and assets, and in particular product liability, professional indemnity insurance, employee liability and all other insurance required by statute.
32.2. The Partner shall from time to time on request by Plan provide to Plan evidence satisfactory to Plan of such insurance policies and that any premiums which have become payable in respect of the insurances held by the Partner have been paid.
33. Third Party Rights
33.1. No term of the Agreement will be enforceable under the Contract (Rights of Third Parties) Act 1999 by a person who is not a party to the Agreement. However, any reference to an acknowledgement, obligation or undertaking on the part of the Partner shall, where applicable, be deemed to include a reference to the Partner procuring the giving of that acknowledgement or undertaking or the performance of that obligation by each applicable Relevant Company.
34. Rights and Remedies
34.1. The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by Applicable Laws.
35. Notices
35.1. All notices which are given or required to be given under the Agreement shall be in writing and if sent to the Partner, marked for the attention of the Managing Director, and if sent to Plan, marked for the attention of the Finance Director. Any such notice shall be sent to the address as stated in the Agreement or if either Party notifies the other in accordance with and making specific reference to this clause a new address then to that new address.
35.2. Notices delivered by hand will be given on the day of receipt (unless received after 6:00pm in which case they will be given on the next Working Day). Notices sent by prepaid first class post or special delivery will be deemed to have been given two (2) Working Days after the date of posting.
35.3. Notices purportedly served by the Partner under or in connection with the Agreement will not be validly served by email or SMS.
35.4. Either Party may vary its address and/or contact for notices by giving notice to the other. The notice must expressly state that the new address is the address for notices and/or the new contact is the contact to whose attention all future notices should be brought, as the case may be.
36. Jurisdiction
36.1 The Agreement and any dispute or non-contractual obligation arising out of or in connection with it will be governed by, and construed in accordance with the law of England and Wales.
Each party hereby submits to the exclusive jurisdiction of the English courts over any dispute arising out of or in connection with the Agreement.
37. Costs
37.1 Each Party shall bear its own costs and expenses in connection with the preparation, negotiation, and execution of the Agreement.
38. Counterparts
38.1 This Agreement may be executed in counterparts, each of which will be deemed an original Agreement for all purposes and which collectively will constitute one and the same Agreement.