Version: V1.4 2021.02.08
Welcome to the Synatrix website, www.synatrix.co.uk (the “website”). These Terms of Use are the terms and conditions on which we provide the text, software, database, format, documents, graphic and written work, and all other materials published on this website (the “content”) and the basis on which we allow access to it. Please read them carefully together with our cookie policy and privacy policy.
The website is owned and operated by Synatrix Limited, with registered company number 10662012 whose registered office is at 156 Broad Hinton, Berkshire RG10 0XH, United Kingdom. Our UK VAT registration number is GB 269032303. By using the website, you confirm that you have read, understood, and agree to these Terms of Use. If you do not agree to be bound by all the Terms of Use, please do not proceed, and please refrain from using our website.
We update the website regularly and you should note that we may change, withdraw, or correct any content or our services at any time. While we endeavour to keep the website up to date, please be aware that on very limited occasions, content may be out of date.
You are responsible for making all arrangements to enable you to access the website. You must also ensure that all persons who access the site through your internet connection are aware of all the terms and conditions that they comply with them.
We make all reasonable efforts to keep the website available and running smoothly. However, from time to time we may be required to suspend operation of the website or restrict access without notice for planned or unscheduled maintenance, improvement, or for another technical reason. We do not guarantee that the website will be available all the time or that use of the website will be uninterrupted or error-free. We try to ensure that the website is free from software bugs, viruses and other malicious or harmful content, but we do not guarantee that the website will be completely secure or free from these items. It is important that you have in place suitable security and protection software to protect your computer and other devices.
Unless specified otherwise, the website and its content cover our services available in the UK. If you access the website from outside the UK or these locations, please be aware that you are responsible for compliance with any applicable local laws. There may be restrictions on service availability depending on your location. Please contact us directly at for further information.
We process information about you in accordance with our Privacy Policy. By using the website, you consent to such processing, and you warrant that all data provided by you is accurate. Please note that any telephone calls between us may be recorded for quality monitoring and training purposes.
We have taken reasonable care in the preparation of the content of the website. Information and materials provided by us are provided in good faith using sources that we believe to be reliable. However, the content of the website is not intended to amount to advice upon which you should rely, and any reliance you place on such content is at your own risk. You are responsible for ensuring that any information or services available on or through the website meet your specific requirements and you should seek specialist advice before taking or refraining from taking any action based on the content available on or via the site.
We use reasonable endeavours to make sure that the information on the website is correct, but we do not guarantee that the website content is accurate, up-to-date, error-free, complete, or suitable for your requirements or will achieve any results in your or any case, and we do not guarantee that it does not infringe the rights of any third party. Where content is submitted by other users of the website using our interactive services, user forums or via third party social media facilities, please note that the views expressed by those other users on the website or on any related sites do not necessarily represent our views or values.
Please read these provisions carefully as they limit our legal liability in connection with your use of the website. Our website and its contents are provided for general information purposes only and nothing on this website or in its contents is intended to provide legal or other professional advice. We do not accept any responsibility for any loss which may arise from reliance on information or materials published on this website. If you wish to find out more about the information in the materials published, please contact us.
We are not responsible or liable for any matter relating to you or any third parties accessing or using this website and its contents. We do not endorse nor are we responsible for the contents of websites operated by others that link to this website or that are accessible from it. Nothing in these Terms of Use excludes or limits our liability for fraud or for death or personal injury arising from our negligence or for any other matter in respect of which it would be unlawful or in breach of regulation to limit or exclude liability.
We are the owner or the licensee of all intellectual property rights on the website, the computer code comprising the website, and in the content on the website including any materials published on it. The website and these materials, including any trademarks and logos, is copyright of Synatrix Limited or its licensors ©, and all rights are reserved.
Unless we have given you our express written permission, you may not commercially exploit, or use for any commercial purpose whatsoever, all or any part of the website or its content. Unless we have given you our express written permission, you are not allowed to copy, download, print, redistribute, reproduce, transmit, broadcast, record, edit, re-post any part of or all the website or its content in any form, except that:
You must also acknowledge our status (and that of any contributors) as originators and authors of the content. You must not modify any such copies or downloads, and any illustrations, photographs, video sequences or graphics must include their accompanying text.
You may link to our homepage if you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part where none exists.
You must not establish a link from any website not owned by you, and the website from which you are linking must comply in all material respects with the principles set out in our content standards set out below. Our website must not be framed on any other site without our prior written permission, nor may you create a link to any part of our site other than the homepage. We reserve the right to withdraw linking permission without notice at our sole discretion.
You may find that the website includes links to other websites provided by third parties. These links are provided for your convenience, and we have no control over and shall not be responsible for the content of any linked websites. The existence of any links does not imply that we recommend or endorse the content in any linked websites.
You may only use the website for lawful purposes, and you may not use it in a way that infringes anyone else’s rights or that restricts or inhibits anyone else’s enjoyment of the website.
You are prohibited from using or exploiting our website or content:
Our content standards apply to all submissions that you make to any related third-party website or page such as our Facebook page, Twitter or YouTube, or other social networking site. All content submitted to the website should be polite, in English, and should be accurate as to any facts, or if opinions, should be genuinely held, and must:
Content submitted must not:
Please Contact Us if you find any submissions which do not comply with these content standards.
The Terms of Use shall be governed by and interpreted in accordance with English law and we and you each submit irrevocably to the exclusive jurisdiction of the English Courts.
Our rights under the Legal Notices may be waived only in writing and specifically.
2.1 Any order for Services placed by the Buyer with the Company shall be deemed to be an offer by the Buyer to purchase the Services subject to these Terms and Conditions.
2.2 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company.
2.3 The Agreement will be on these Terms and Conditions to the exclusion of all other terms and condition (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification, or other document).
2.4 No variation of the Agreement shall have any effect unless expressly agreed in writing and signed on behalf of the Company and the Buyer.
3.1 Estimates remain valid for a period of 30 days from their date of issue unless otherwise specified in writing by the Company.
3.2 Estimates are an indication of likely charges to be incurred by the Buyer for the Services requested, based upon the information made available to the Company at the time.
3.3 All descriptions, illustrations, technical specifications, drawings, sketches, and other documents which may be given in or referred to in Estimates and/or performance figures are approximate only and the Company may vary any of the same at any time. No warranty or representation which is not confirmed in writing by the Company will be binding.
4.1 The Buyer shall:
(a) assist the Company in all matters as the Company may request relating to the Services; and
(b) provide, in a timely manner, any In-put Material and other information as the Company may request and ensure that the Specification and the In-Put Material are accurate in all material respects.
4.2 The Buyer hereby acknowledges that the Services shall be performed in accordance with the Specification.
4.3 If the performance of the Company’s obligations under the Agreement is prevented or delayed by any act or omission by the Buyer, the Buyer’s agents, sub-contractors or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Buyer arising directly or indirectly from such prevention or delay.
5.1 The Company reserves the right by giving notice to the Buyer at any time before completion of the performance of the Services to adjust any Estimate given following commencement of the Services to reflect any increase in the costs to the Company which is due to any change in delivery date or the Specification which is requested by the Buyer, or any delay caused by the Buyer’s failure under clause
5.2 The Buyer may request by giving not less than 10 days’ prior written notice a change to the Specification.
5.3 If the Buyer requests a change to the Specification:
(a) the Company shall, within a reasonable time (and in any event within a reasonable period after receipt of the Buyer’s request), provide a written estimate to the Buyer of:
iii) any other impact of the change on the terms of the Agreement
(iii.b) if the Buyer does not wish to proceed, there shall be no change to the Specification; and
(iii.c) if the Buyer wishes the Company funds to proceed with the change, the Company shall do so after agreement on the necessary variations to its charge, and any other relevant terms of the Agreement to take account of the change to the Agreement.
6.1 The Buyer shall pay any Deposit due to the Company in cleared funds at least three business days prior to the Commencement Date. The Company shall not be under any obligation to commence the provision of the Services unless it has received any agreed Deposit in accordance with this clause 6.1.
6.2 Payment is to be made in the currency specified in the Invoice. If no such currency is specified, then United Kingdom sterling is to be assumed as the agreed currency.
6.3 The balance of the price shall be paid by the Buyer to the Company within 30 days of the date of the Invoice.
6.4 Where payment is not received within the specified period the Buyer shall be liable to pay interest accruing daily on the amount outstanding at the rate of 8 per cent per annum above the UK Bank of England base rate prevailing at the time. The Company understands and will exercise its statutory right to interest under the Late Payment of Commercial Debts (Interest) Act 1998 if it is not paid according to the terms set out in the Agreement.
7.1 All Intellectual Property Rights and all other rights in any Deliverables and the Design shall be owned or licensed by the Company. Upon full payment of all Invoices the Company hereby licenses all such rights (to the extent it is permitted to do so under any applicable licences) to the Buyer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Buyer to use the Deliverables, the Services, and the Design. If the Agreement is terminated under clause 14, the licence granted by this clause 7 will automatically terminate.
7.2 No replication of any part of the Deliverables or any Design work carried out is allowed without the prior written consent of the Company.
7.3 The Buyer shall be responsible for obtaining any permissions necessary to place the In-Put Materials onto the Website and the Buyer accepts full and complete responsibility for obtaining any rights, licences, clearances, releases or other permissions regarding the In-Put Material.
8.1 Delivery of any Deliverables shall be deemed to occur and the risk of loss or damage of any kind in such Deliverables shall pass to the Buyer on the earlier of (a) collection on behalf of the Buyer or by the carrier for dispatch to the address for delivery specified in the Agreement, or (b) 7 days from the date of notice given by the Company to the Buyer that the Deliverables are ready for collection by the Buyer, or (c) the Buyer sends written confirmation via email or in postal letter form acknowledging its acceptance of any Services supplied directly by the Company.
8.2 Upon completion of the Deliverables and Design the Company shall place the Deliverables and Design on a staging server to enable the Buyer to preview them and the Company shall notify the Buyer that the Design and Deliverables are ready for preview. The Buyer shall then have a period of five working days during which to review the Design and Deliverables for conformity with the Specification and shall notify the Company of any non-conformity. Upon receipt of such notice the Company shall rectify such non-conformity as soon as reasonably practicable. In the absence of any notification from the Buyer within such period, the Company shall be deemed to have performed the Services in accordance with the terms of this Agreement. Any subsequent fault corrections shall be remedied at the discretion of the Company.
9.1 The Company will use reasonable commercial endeavours to perform the Services and deliver any Deliverables in accordance with any time estimate given by the Company in the Agreement but in no event shall time be of the essence. The Company shall be entitled to deliver any of the Deliverables by single delivery or by instalments at its option.
The Buyer’s attention is particularly drawn to the provisions of this clause
11.1 The Buyer agrees to fully indemnify and keep the Company, its subsidiaries, affiliates, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following: (i) the Buyer’s breach of this Agreement or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Buyer; (iii) the Buyer use or misuse of the Deliverables and the Design; (iv) the Buyer infringing (whether innocently or knowingly) third party rights (including without limit Intellectual Property Rights).
12.1 The Company will not be liable for any delay or failure in carrying out its obligations which is caused or partly caused by strikes or other labour disputes, Government action, fire, flood or other Acts of God or any other cause beyond its control. Neither Party will be obliged to carry out any obligation under the Agreement where performance of such obligation is prevented by the occurrence of a Force Majeure Event. No commitment from the Company applies in case of Force Majeure.
13.1 If any provision of the Agreement is found by any court or administration body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in force and effect unless the severance of the invalid or unenforceable provision would unreasonably frustrate the commercial purpose of the Agreement. The Company and the Buyer in such event agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision that achieves to the greatest extent possible the economic objectives of the invalid or unenforceable provision. No time or indulgence granted by one party to the other and the exercise of its rights shall be deemed to constitute a waiver of such rights.
14.1 If the Buyer fails to make a payment due under the Agreement, or commits any breach of the Agreement, or becomes bankrupt or insolvent or compounds or makes any other arrangement with creditors or being a company goes into liquidation or has a receiver appointed over its assets, the Company may (without prejudice to any other remedies) terminate the Agreement immediately without notice and suspend the performance of the Services and the Buyer shall be liable to indemnify the Company against all loss (including loss of profit) and costs incurred by the Company and all other expenses and damages connected with the order and it’s cancellation.
15.1 This agreement shall in all respects be governed by and constructed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts in any legal proceedings and as regards claim or matter relating to this agreement.
16.1 Subject to the Buyer consenting to such use under the Agreement, the Company shall have the right to use the Buyer’s name to promote the Company to future clients. This may include publicity, sales literature, and other marketing activities. The Company will include a “Credits: Synatrix Ltd.” line on the home page of any Website created. Contact information will also be included within the source code.
The Terms and Conditions should be read in conjunction with all Synatrix order forms, in which you will find the Service description(s), pricing and other arrangements specific to your contract with Synatrix. Signature of a Sales Order Form on behalf of you (the client) and Synatrix forms a, legally binding contract made up of that Sales Order Form for the Services you have ordered, the relevant sections of these Terms and Conditions and other documents incorporated by reference in the Sales Order Form or these Terms and Conditions. For ease, such contract is referred to in these terms as an “Agreement”.
2.1 To make these Terms and Conditions easier to read, we have given the following expressions a specific meaning, when used in the Agreement:
2.2 A reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time.
3.1 Formation of Agreement. An Agreement will be formed only when Synatrix accepts a Sales Order Form by signing it and notifying you in writing, and Synatrix will not be bound by any Sales Order Form until that point. Each Sales Order Form will establish a new Agreement, separate to any other Agreement. Each Agreement constitutes a separate legal contract between you and Synatrix for the provision of the Services described in the relevant Sales Order Form.
3.2 Additional Orders. You may order additional Services from Synatrix by submitting to Synatrix an additional Sales Order Form, which when signed by you will constitute an offer by you to purchase such additional Services from Synatrix. Synatrix will have no obligation to accept any additional order and will not be bound by such additional Sales Order Form until accepted and signed by Synatrix in accordance with paragraph 3.1.
3.3 Schedules. The schedules attached to these Terms and Conditions contain terms that are specific to Services that Synatrix may supply to you. However, for each Agreement only the schedules expressly and specifically incorporated by the relevant Sales Order Form will apply. Any additional terms attached to the Sales Order Form by Synatrix will also form part of the Agreement.
3.4 Third party terms. Certain Services may be subject to additional, third-party terms and you may be required to enter into separate agreements prescribed by a third party involved in providing those Services or accept third party terms on a “back-to-back” basis. Your use of the Services will be subject to any such third-party terms. Where applicable, further information will be provided in the relevant schedule to these Terms and Conditions or the Sales Order Form (or an attachment thereto provided by Synatrix).
3.5 Exclusion of terms. Without prejudice to paragraphs 3.3 and 3.4, these Terms and Conditions will apply in respect of the subject matter of the relevant Sales Order Form to the exclusion of any other terms and conditions contained or referred to in any order, letter, form, or other communication sent by you to Synatrix.
4.1 Synatrix will provide the Services to you in accordance with the Agreement:
4.1.1. to a standard that meets or exceeds the relevant SLA attached to the Agreement or the Order Form (if applicable); and
4.1.2. using reasonable care and skill.
4.2 Your sole remedy for a breach by Synatrix of paragraph 4.1.1 will be the payment of Service Credits in accordance with the terms of the Agreement. You agree that the Service Credits are reasonable and proportionate to your legitimate interest in the Services being performed in accordance with paragraph 4.1.1.
5.1 Licences Synatrix provides. Subject to paragraph 5.2, Synatrix confirms that it owns or is licensed to use the systems, products, and materials (other than Your Equipment and Third-Party Software) necessary to provide the Services to you as the same are specified in the applicable Sales Order Form. The software products and materials that Synatrix will licence as part of each relevant Services is as stated
in the applicable service description attached to the Sales Order Form for the Services. You will comply with all licence terms for software products and materials we provide to you as part of the Services or are required to pass down to you, as we shall notify you from time to time, whether in the applicable Sales Order Form or otherwise.
5.2 Your Licences. You always warrant and undertake that you will either own or have a valid license to use Third Party Software and you shall comply with all relevant third-party licence terms when using Third Party Software on the Services (including, but not limited to, the Microsoft End User Licence Terms where you use Microsoft products and materials). You agree that you will comply with all end-user licence terms related to the Third-Party Software from time to time and will provide copies of the relevant agreements to us on request.
5.3 Your Compliance. You shall always install, load, and use on the Services Third Party Software that has been lawfully obtained in accordance with the applicable terms and you shall not install, load, or use any Third-Party Software which (i) requires consent from the vendor to be used or loaded without first obtaining our consent and all necessary third-party consents and/or (ii), by reason of any licence
terms, cannot be used with the Services or (with regard to existing licenses) cannot be migrated on to the Services.
5.4 Third Party Software. With the exception of software you purchase as part of the Services as described in paragraph 5.1, you are solely responsible for obtaining all required licences and for complying with all applicable Third Party Software licensing requirements, including the product use rights and product terms of Third Party Software. Usage of the Services in relation to the Third Party Software which is in violation of your agreement with the relevant third party is not authorised or permitted.
5.5 Mobility Programme. If you are using a mobility programme from a software vendor to use or operate Third Party Software using services provided by Synatrix, you must complete the appropriate procedure with such software vendor and provide evidence of your verification status to Synatrix before you load or install Third Party Software on the Services.
5.6 Right to verify compliance. You must keep records relating to all use of Third-Party Software. Synatrix and/or any third party nominated by Synatrix (including, but not limited to, Microsoft) has the right, at their expense, to audit and verify compliance with any licence terms of Third-Party Software. You must promptly provide the relevant auditor with the information the auditor reasonably requests in furtherance of the verification or audit, including access to the systems running Third Party Software and evidence of licenses for Third Party Software. Synatrix will endeavour to notify you 21 days in advance of its intent to verify your compliance with the licence terms of Third-Party Software and any auditor shall be subject to a confidentiality obligation. You agree to complete Synatrix’s self-audit
process, which Synatrix may require as an alternative to a third-party audit.
5.7 Remedies for non-compliance. If verification or self-audit reveals any unlicensed use of Third-Party Software, then you must immediately acquire sufficient licenses to cover such use and notify Synatrix immediately and reimburse Synatrix for any loss, fine, penalties or costs incurred by Synatrix in relation to the Third-Party Software. By exercising the rights and remedies described above, Synatrix does not waive its rights to enforce this agreement by any other legal means.
5.8 Indemnity. You shall indemnify Synatrix against any and all losses, damages, costs (including legal fees) and expenses suffered or incurred by or awarded against Synatrix as a result of a breach of your obligations under clauses 5.2 (Your Licences), 5.3 (Your Compliance), 5.4 (Third Party Software), 5.5 (Mobility Programme) 5.6 (Right to verify compliance) and 5.7 (Remedies for non-compliance).
5.9 Microsoft’s Rights. Microsoft is an intended third-party beneficiary of this clause 5 (Relevant Licences) with the right to enforce its provisions. The use of any and all Microsoft software provided as part of your service is subject to the Microsoft Licensing Terms which can be found here: https://www.microsoft.com/en-gb/Licensing/product-licensing/products.aspx
Customer attention is drawn specifically to the Product Terms and Service provider Use Rights documents available at this location for review.
6.1 Authority to sign the Agreement. Each of us confirms to the other that we have the authority to enter into and meet our respective obligations under the Agreement.
6.2 Relevant licences. Synatrix confirms that it owns or is licensed to use the systems, products, and materials (other than Your Equipment) necessary to provide the Services to you.
6.3 Acceptable Use. You will comply with the AUP during the term of the Agreement. If Synatrix is informed by government authorities or other parties of inappropriate or illegal use of Synatrix's facilities or other networks accessed through Synatrix, or if Synatrix otherwise learns of such use or has reason to believe such use may be occurring, or if Synatrix receives a court judgment or order or request related to you from any law enforcement or governmental authority, then you will cooperate in any resulting investigation by Synatrix or relevant government or law enforcement authorities. Any government determinations will be binding on you. If you fail to co-operate with
any such investigation or determination, or fail to immediately rectify any illegal or inappropriate
use, Synatrix may immediately suspend your Service. Further, upon notice to you, Synatrix may modify
or suspend your Service as necessary to comply with any law, regulation or court order.
6.4 Third Party Services. Unless otherwise stated in the Sales Order Form, you are responsible for
ordering:
You will ensure that third party carriers install those circuits in your name. You will be solely
responsible for those circuits and for all payments due to the carriers. You will notify the carrier
directly when you wish to end or change those circuits.
6.5 Resale of the Services. You may use Services for your own benefit or for the purposes of using the Services to provide your business services to third parties but may not resell or sublet the Services to any third party. You will not enter into any agreement with any third party under which you agree to provide services to the third party that are reliant on the Services, unless the duration of such
third party agreement is no longer than the minimum duration of the Agreement.
6.6 Insurance. It is your responsibility to obtain insurance, including in respect of Your Equipment (if any) whilst it is on Synatrix’s premises or in transit and other such insurance, including professional indemnity, cyber-risk and data loss insurance, as may be required by you for provision of the Services by Synatrix. If Synatrix asks you to do so, you must provide Synatrix with the relevant certificates of insurance. Synatrix will take out and maintain professional indemnity, public liability and building insurance and will provide you with the relevant certificates of insurance on written request by you.
7.1 Service Start Date. Synatrix shall start invoicing you for the Services with effect from the Start Date.
7.2 Implementation/Setup Charges. When you sign a Sales Order Form, Synatrix will invoice you for any set up or implementation fee listed in the Sales Order Form, together with any costs incurred through the purchase of any equipment that you have agreed to pay for in accordance with and as set out in the Sales Order Form. That invoice will be payable within 14 days of the date on which it is issued to you.
7.3 Term or Recurring Service Charge. When you sign a Sales Order Form, Synatrix will also invoice you for the Term or Recurring Service Charge (as applicable) listed in the Sales Order Form. That invoice will similarly be payable within 14 days of the date on which it is issued to you. Following Synatrix's initial invoice, Synatrix will invoice you for any further instalment of the Recurring Service Charge monthly in advance (where applicable), each further invoice being payable within 30 days of the date on which it is issued to you.
7.4 Variable Service Charges. Synatrix will invoice you monthly in arrears for any Variable Service Charges that become payable as a result of the Services that Synatrix provides. Those Variable Service Charges will be calculated in accordance with the rates set out in the Sales Order Form.
7.5 Additional Services. If Synatrix provides any other Services to you under the same Sales Order Form, the Charges payable will be agreed in advance between Synatrix and you, in writing.
7.6 Third Party Services. In line with paragraph 6.4, you are solely responsible for paying any charges for the lease or use of telecommunications lines or any other Third-Party Services.
7.7 Taxes. The Charges do not include applicable taxes (including VAT) or import/export duties or shipping and delivery charges. If any of those duties or charges are incurred, they will be added to any relevant invoice and will be payable by you or, if payable on a withholding tax basis, will be payable by you to the relevant authority direct.
7.8 Payment of invoices. Unless you dispute an invoice with good cause, you must pay each Synatrix invoice in GBP(£) within 30 days of the date on which that invoice is issued or within such alternative period as is expressly stated in the Agreement (the "Due Date"). You will not be entitled to deduct or off-set any amount that Synatrix may owe to you against an Synatrix invoice.
7.9 Suspension of Services for non-payment. If you do not pay an invoice (which is not disputed in good faith):
We will contact you at least 3 times outlining details of your overdue invoices before taking any of the actions listed in this paragraph 7.9.
7.10 Increase in Charges. In addition to any annual change in the Charges imposed under paragraph 11.1, Synatrix may increase its Charges to reflect any change in the law or tax rules that affect operators of data centres or IT services, including any Energy Charges incurred by Synatrix in the provision of the Services. If a change of that kind is implemented, Synatrix will give you written notice of any resulting increase in the Charges (including any increase in Energy Charges) and the date on which it will become effective.
7.11 Interest charge. If you do not pay any invoice (which is not disputed in good faith) in full by the Due Date, Synatrix will be entitled to charge you interest on the unpaid undisputed amount calculated at a rate of 8% per annum above the prevailing base rate of the Bank of England, that interest charge being applied until the outstanding undisputed amount is settled in full. Synatrix's right to charge interest does not affect its right to take other legal action against you in relation to non-payment of the amount concerned.
8.1 Acceptance Criteria. Where the Sales Order Form specifies that acceptance tests are applicable to the provision of Services, then no later than 10 days from the Effective Date, the parties will prepare and will use reasonable endeavours to agree proposed acceptance criteria for acceptance tests for the Services.
8.2 Acceptance Tests. Synatrix shall carry out the agreed acceptance tests on the Services within 10 days of the Start Date (or as otherwise agreed between the parties). The acceptance tests shall be started as soon as reasonably possible following the Start Date. Synatrix will give you at least 24 hours’ notice of the start of the acceptance tests and you are permitted to observe all or any part of the testing.
8.3 Acceptance Remedies. If any part of the Services fails the agreed acceptance tests, Synatrix shall remedy the defects or deficiencies and will repeat the relevant tests within a reasonable time.
9.1 Indemnity. If any claims or demands are brought against Synatrix or any Synatrix employee, officer, director or affiliate (each an "Synatrix Entity") arising out of (i) your breach or alleged breach of the AUP; or (ii) which allege: any damage or destruction to the Data Centre, the Network, Synatrix's premises or equipment; or (iii) which allege any damage or destruction to any of Synatrix's customer equipment or data; or (iv) which allege any personal injury to or property damage of any Synatrix Entity, and the claim, damage, destruction or injury is caused by you or results from a breach of this Agreement or something that you have negligently done or failed to do, you must indemnify Synatrix and the Synatrix Entities against those claims or demands. This will not apply to the extent that the damage, destruction or injury is caused by the negligence or breach of this Agreement by Synatrix or any Synatrix Entity. The limit on liability set out in paragraph 10.4 shall not apply to this indemnity.
9.2 Conditions of Indemnity. For the indemnity set out in paragraph 9.1: (i), Synatrix will promptly notify you in writing of the existence of any claim or demand covered by the indemnity; (ii) Synatrix will use reasonable endeavours to minimise any loss or damage which it may suffer; (iii) on request by Synatrix, you will allow Synatrix to participate in or conduct all negotiations and proceedings in relation to the defence and settlement of the claim; and (iv) where Synatrix permits you conduct or defence of the claim, you must obtain Synatrix's prior written consent to the settlement of any claim (provided that Synatrix does not unreasonably refuse or delay giving its consent).
10.1 Limit of exclusions. Nothing in these Terms and Conditions excludes or limits Synatrix's or your liability where that liability arises out of the death or personal injury of any person caused by negligence or for any statement that constitutes fraud or fraudulent misrepresentation.
10.2 Service credits. Except where you have an express right to terminate the Agreement as set out in an applicable SLA, the service credit regime set out in the applicable SLA will be the sole and exclusive remedy by which you will be compensated for any failure (howsoever arising, whether in contract tort or otherwise) by Synatrix to meet the service levels set out in the SLA.
10.3 Your obligations. You will take all reasonable measures to prevent and mitigate any losses, damages, costs and expenses that you may suffer or incur and in respect of which you intend to recover (in whole or in part) under or in connection with the Agreement.
10.4 Cap on liability under each Agreement. Provided that paragraph 10.1 will always apply, and subject to paragraph 10.3, Synatrix's and your total liability to each other in relation to loss or damage arising out of or in connection with each Agreement, whether in contract, tort, (including negligence) or otherwise, in any contract year, (including any loss of data) will be limited to the greater of (a) the total Charges paid or payable by you to Synatrix under the relevant Agreement in the Initial Term; or (b) the total Charges paid or payable by you to Synatrix under the relevant Agreement in the contract year concerned.
10.5 Exclusion of losses. Provided that paragraph 10.1 will always apply, neither party shall in any circumstances whether in contract, tort (including for negligence or statutory duty) misrepresentation (whether innocent or negligent), restitution or otherwise be liable for any:
10.6 Your customers. You acknowledge that Synatrix has no duty to any of your customers or any other recipient of any goods or services that you supply to third parties. Provided that paragraph 10.1 will always apply, Synatrix shall not in any circumstances whether in contract, tort (including for negligence or statutory duty) misrepresentation (whether innocent or negligent), restitution or otherwise be liable for any loss or damage that you incur as a result of claims made by any third party or any other recipient of any goods or services that you supply to third parties.
10.7 Exclusion of implied warranties. Subject to the warranties that Synatrix has given to you under the Agreement all warranties terms and conditions that would otherwise be implied by statute or at common law are excluded to the fullest extent permitted by law.
10.8 Cyber risk. Synatrix will perform the Services as set out in the Agreement, including, without limitation, by implementing appropriate security measures and firewalls where the same are part of the Service. Synatrix has no knowledge of the data or types of data Synatrix hosts under the Agreement. It is your responsibility to ensure that the Services are appropriate for the type of data that Synatrix hosts under the Agreement. Synatrix will act on reasonable instructions from you to tailor the Services to your business needs and will provide you with the information necessary for you to assess whether the technical and organisational measures that Synatrix implements meet the requirements of Applicable Data Protection Law. However, Synatrix does not provide any warranty regarding the adequacy of the Services and does not warrant that the Services, or their design, will protect your data from corruption, loss or degradation in all circumstances.
11.1 Automatic Renewal. Unless terminated by either party in accordance with the relevant Agreement or unless expressly stated otherwise in a schedule to an Agreement, each Agreement shall take effect on the Effective Date and shall continue for its Initial Term and thereafter will automatically renew for consecutive periods of 12 months, each starting on the anniversary of the Start Date (each period being a "Renewal Term"). From the first day of each Renewal Term, the Charges will automatically increase by a percentage amount equal to the increase in the retail prices index (as published by the Office for National Statistics) for the previous calendar year. If the change in the relevant index is zero or negative, the Charges will increase by 1%. Charges payable during each Renewal Term will be confirmed to you in writing at least 30 days in advance of the start of that Renewal Term. You have the right to bring the Agreement to an end in line with paragraph 11.2 if you do not agree to the Charges being increased in accordance with this paragraph.
11.2 Terminating the Agreement on notice. Either you or Synatrix can end the Agreement by giving the
other party at least 90 days' written notice in advance of and to expire at the end of the relevant
Initial Term or any subsequent Renewal Term. Alternatively, you can end the Agreement on 90 days'
written notice to Synatrix if you do not agree to an:
11.3 Terminating an Agreement following a breach. Either of us may end the Agreement with immediate effect on prior written notice to the other if the other materially breaches its obligations under the relevant Agreement and (if such breach is capable of remedy) does not remedy that breach within 30 days after receipt of written notice from the other party to remedy such breach.
11.4 Synatrix's specific rights to end the Agreement. Synatrix may end the Agreement with immediate effect on written notice to you where:
11.6 Continuing liability. However the Agreement ends, each of us will still be responsible for claims or liability (including payments due) relating to the time before the Agreement ended.
11.7 The position after the Agreement ends. When the Agreement expires or terminates:
11.8 You acknowledge that, in order to deliver the Services, Synatrix may enter into contracts with third party suppliers. If any Agreement is terminated for any reason including termination by you under paragraph 11.3, you shall, without prejudice to Synatrix's other rights and remedies, immediately pay to Synatrix all fees that Synatrix is liable to pay to such parties to terminate such contracts (as notified
to you in writing by Synatrix). You acknowledge that the termination fees may include payment of fees to the third party suppliers for the minimum term of such contracts and shall include all amortized investments in tools, hardware, pre-paid software and other operations infrastructure used by Supplier primarily to provide the Services.
11.9 You shall indemnify Synatrix against any and all losses, damages, costs (including legal fees) and expenses suffered or incurred by or awarded against Synatrix in respect of any claim or action brought against Synatrix by one of the third party suppliers described in paragraph 11.8 which results from your breach of any Agreement that causes Synatrix to be in breach of such third party contract.
11.10 If paragraph 11.3 applies, the parties may agree (but will have no obligation to agree) to novate any contract described in paragraph 11.8 to you, subject to the relevant third party supplier agreeing to such novation.
11.11 Termination of SLA. On termination or expiry of the Agreement for any reason, any service levels set out in the SLA which apply to the relevant Services, will no longer apply and will cease to have effect. Service levels will not apply to the provision of any termination assistance (if applicable) or any Services that may continue for any reason after expiry or termination.
11.12 Survival. On termination or expiry of the Agreement for any reasons, the following paragraphs shall survive and continue in full force and effect: paragraph 6.6 (insurance), paragraph 7.8 (payment of invoices), paragraph 7.11 (Interest charge), paragraph 10 (limits of liability), paragraphs 11.6 - 11.12 (termination), paragraph 12 (protection of confidential information), paragraph 14.8 (dispute resolution) and paragraph 14.13 (governing law).
12.1 Information concerned. Each of us acknowledges that we will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of the Agreement, proprietary software and customer information (“Confidential Information”).
12.2 Maintaining secrecy. Each of us agrees that except as expressly permitted under an Agreement, we will not use in any way, for our own account or the account of any third party, nor disclose to any third party, except as required by law or as reasonably necessary to that party’s professional advisors (or in Synatrix's case, to the other operators of Synatrix's global network), any of the other party’s Confidential Information and that we will each take reasonable precautions to protect the confidentiality of that information.
12.3 Exceptions. Information will not be deemed Confidential Information if that information (i) was already known or becomes known to the receiving party from a source other than the disclosing party; (ii) becomes publicly known or becomes no longer secret or confidential, except through a breach of an Agreement by the receiving party; (iii) is independently developed by the receiving party; or (iv) is required to be released by law or regulation, provided that the receiving party promptly informs the disclosing party in writing of the impending release, and the releasing party co-operates fully with the disclosing party to minimise the extent of the release.
13.1 In this paragraph, the terms “Personal Data”, “Controller”, “Processor”, “Data Subject”, “Processing”, “Data Protection Impact Assessments”, “Personal Data Breach” and “UK GDPR” have the meanings given under Applicable Data Protection Law.
13.2 The parties acknowledge that the factual arrangement between them dictates the classification of each party as either a Controller or Processor under Applicable Data Protection Law. Notwithstanding the foregoing, the parties acknowledge that:
and therefore, in either case, the obligations of paragraphs 13.3 to 13.7 shall not apply.
13.3 Subject to paragraph 13.2, with respect to the party's rights and obligations under the Agreement, the party’s agree that you are the Controller and that Synatrix is the Processor.
13.4 Where Synatrix processes Personal Data as a Processor on your behalf, it shall:
13.4.1. Process the Personal Data only in accordance with instructions from you (which may be specific instructions or instructions of a general nature as set out in the Agreement or as otherwise notified by you to Synatrix during the term of the Agreement);
13.4.2. take reasonable steps to ensure the reliability of any Synatrix staff who have access to the Personal Data, and ensure such staff are trained in the care and handling of Personal Data and have given appropriate binding undertakings of confidentiality;
13.4.3. notify you without undue delay and, in any event, within five business days, if it receives:
13.4.4. taking into account the nature of the Processing, assist and cooperate with you (including by using appropriate technical and organisational measures, in so far as this is possible), to respond to complaints or requests from Data Subjects exercising their rights under Applicable Data Protection Law, including by:
13.4.5. permit you or your representatives access to any location where Synatrix processes Personal Data during normal business hours to inspect and audit, on reasonable prior notice, Synatrix's data Processing activities and comply with all reasonable requests or directions by you to enable you to verify and/or procure that Synatrix is in full compliance with its obligations under this paragraph 13.4.5. You or your representative shall be required to adhere to any applicable Synatrix site and security policies in the performance of such an audit or inspection;
13.4.6. provide a written description of the technical and organisational methods employed by Synatrix for Processing Personal Data (within the timescales reasonably required by you);
13.4.7. be entitled to engage sub-Processors (as a subcontractor), subject to
13.4.8. in addition to the sub-Processors engaged pursuant to paragraph 13.4.7, be entitled to engage additional or replacement sub-Processors (as a subcontractor), subject to:
and where you object to the additional or replacement Processor, the parties shall discuss the objection in good faith;
13.4.9. save where such countries have been deemed by the United Kingdom government to be providing an adequate level of protection pursuant to the relevant provisions of Applicable Data Protection Law not Process Personal Data outside the United Kingdom without the prior written consent of you and, where you consent to a transfer, to comply with any reasonable instructions notified to it by you. Notwithstanding the foregoing, Synatrix is expressly permitted and instructed by you that it may transfer Personal Data to any Synatrix subsidiary and any Synatrix subcontractor, subject to first ensuring that adequate protections are in place to protect the Personal Data consistent with the requirements of Applicable Data Protection Law. If pursuant to this clause 13.4.9 such transfer requires an Synatrix subsidiary or subcontractor (acting as a Processor or subProcessor) to enter into ‘standard contractual clauses’ pursuant to Article 46(2) of the UK GDPR with you then you authorise Synatrix to enter into the standard contractual clauses with the Synatrix subsidiary or subcontractor in your name and on your behalf. Synatrix will make the executed standard contractual clauses available to you on request.
13.4.10. at your cost and taking into account the nature of the Data Processing and the information available to Synatrix, assist you in ensuring your compliance with your obligations to:
pursuant to Articles 32 to 36 of the UK GDPR (respectively); and
13.4.11. notify you without undue delay upon becoming aware of a Personal Data Breach.
13.5 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purpose of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, you and Synatrix will take, implement and maintain such technical and organisational measures as are appropriate to protect the Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure.
13.6 Each party shall comply at all times with Applicable Data Protection Law and shall not perform its obligations under the Agreement in such a way as to cause the other to breach any of its applicable obligations under Applicable Data Protection Law.
13.7 Each party shall comply with its obligations set out in the Data Protection Specification.
13.8 To the extent that Synatrix’s performance of its obligations under the Agreement involves the Processing of Personal Data on your behalf, you shall ensure:
13.9 Where under Applicable Data Protection Law (including without limitation Article 82 of the UK GDPR and any applicable Law where you and the Synatrix may incur joint and several liability as Controller and Processor with any other person) Synatrix incurs any costs liability damages claims or expenses (other than for damage caused by Processing only where it has not complied with obligations of
applicable DPA Regulation specifically directed to Data Processors or where it has acted outside or contrary to your lawful instructions under the Agreement), you shall indemnify Synatrix on demand against all such costs liability damages claims or expenses, save for such liability as corresponds directly to Synatrix’s part of the responsibility for the damage caused by Synatrix’s breach of the obligations of Applicable Data Protection Law or the Agreement.
13.10 International clients. You acknowledge and agree that if you are a business located in a territory outside the United Kingdom, it is your responsibility to ensure compliance with Applicable Data Protection Law (or equivalent) in relation to transfers of your personal data from Synatrix to you.
13.11 PCI DSS Requirements. In accordance with best practice as described in the Payment Card Industry Data Security Standard (PCI DSS) scheme to safeguard sensitive credit and/or debit card data, should you use the Services to store, process or transmit credit or debit card information you will:
13.12 Business Continuity. Synatrix warrants that it has and will undertake to maintain a business continuity plan for its operations that is consistent with the international standards ISO 22301:2012, ISO 27001:2013 and ISO 9001:2015. While Synatrix takes all steps provided in the Agreement to protect your data, this does not constitute an absolute guarantee that a third party will not try to access, interrupt, delete or compromise your data. You are therefore responsible for determining the ultimate safety and integrity of your data.
14.1 Unenforceable Provisions. If any part of the Agreement is found by a court or other competent authority to be illegal or unenforceable then the rest of the Agreement will remain valid.
14.2 Circumstances outside either party's control. Except for the obligation to pay money, neither you nor Synatrix will be liable for any failure or delay in meeting our respective obligations under the Agreement, or for credits due under the SLA, due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, terrorist activity, sabotage, labour shortage or dispute, governmental act or failure of the Internet, provided that whichever of us is affected: (a) gives the other prompt notice of the situation; and (b) uses reasonable commercial efforts to correct promptly the failure or delay in performance.
14.3 No property rights. The Agreement is a services agreement and is not intended to and does not grant a lease or licence over any real or personal property. In particular, you acknowledge and agree that you have not been granted any real property interest in any Data Centre (or, if applicable to the Services to be supplied to you, any space in any Synatrix data centre where Your Equipment is kept)
or in Synatrix's other premises (including the location where the Services are provided), and you have no rights as a tenant or otherwise under any real property or landlord/tenant/tenant laws, or regulations.
14.4 Transfer of rights. The Agreement is personal to you and you may not assign or transfer your rights or subcontract your obligations under the Agreement either in whole or in part without Synatrix's prior written consent. We will not unreasonably refuse that consent. Synatrix may assign or transfer its rights or subcontract its obligations under the Agreement either in whole or in part.
14.5 Notices. Any notice given under the Agreement must be in writing and may be delivered personally, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the relevant address indicated above, or such other address as either of us may nominate in writing. That notice will be deemed to have been given on the date delivered, or 5 days after mailed or sent, whichever is earlier.
14.6 Status of the parties. Synatrix and you are independent contractors and the Agreement does not create any partnership, joint venture or agency or employee relationship. Neither of us has authority to enter into any contract on behalf of the other. 14.7 Changes to the Agreement. The Agreement may only be amended if both of us agree in writing.
14.8 Dispute resolution. If a dispute arises between you and Synatrix relating to the Agreement you and Synatrix will use reasonable commercial efforts to resolve the dispute at senior management level within 28 days of the dispute arising, failing which:
14.9 Delay in exercising rights. If either of us does not exercise a right which we have under the Agreement or at law, or if either of us delays in exercising that right, we will not be prevented from exercising that right at a later date.
14.10 Documents making up this Agreement. A Sales Order Form and these Terms and Conditions, together with any schedules, appendices and other documents referred to in either document, make up the complete agreement and understanding between us in relation to the relevant Services and replace any other agreement or understanding between us, written or oral. If a conflict is identified between the Sales Order Form, these Terms and Conditions, any schedules or appendices and any other document otherwise attached or incorporated into this Agreement, the order of priority for the purposes of construction, is in descending order:
14.11 Status of headings. Headings have been included for convenience only and will not be used in constructing any provisions of the Agreement.
14.12 Interpretation. Any references in the Agreement to words in the singular include the plural and vice versa. Where the words "includes" or "including" are used, the words that follow are examples only.
14.13 Governing law. The Agreement and any claims arising out of them or in connection with it (including non-contractual claims) will be governed by English law and both of us agree that the English Courts will have non-exclusive jurisdiction.
