By placing a Service Order with us you agree to the following terms and conditions which shall apply to the provision of Services by us (TFM) to you (Customer).

1 Service Order

1.1 Each Service Order shall set out the Services that TFM will supply to Customer, together with the details of all Charges that apply to those Services. The Service Order shall become effective only when accepted in writing by TFM (including via email).

1.2 Customer may (subject to any specific provisions set out in the Service Specification) cancel a Service Order:

1.2.1 prior to the Operational Service Date by notice in writing. Should Customer so cancel TFM will charge Customer in full for the costs incurred by TFM up the date of cancellation together with TFM’s reasonable administrative charges;

1.2.2 following the Operational Service Date by terminating the Services in accordance with the terms of this Agreement. Unless Customer terminates the Services in accordance the terms of this Agreement Customer will be invoiced in full for the remainder of the Initial Contract Term or successive 12 month period as applicable.

1.3 Customer shall be liable for any penalty charges or other costs charged by TFM’s network or service provider or equipment supplier as a consequence of or in relation to the cancellation or termination of Customer’s Service Order.

2 Term

2.1 The Initial Contract Term for each Service is stated on the applicable Service Order. Following the Initial Contract Term this Agreement shall continue on a rolling basis unless and until either party terminates the Service by giving to the other party at least ninety (90) days advance written notice.

3 TFM’s obligations to Customer

3.1 TFM shall:

3.1.1 provide the Services in accordance with each relevant Service Specification and at all times in accordance with the provisions hereof;

3.1.2 provide the Services with the skill, care and diligence to be expected of a professional supplier of services similar to the Services;

3.1.3 give Customer as much notice as practicable of any interruption to any Services, and not voluntarily permit any interruption to Services otherwise than for scheduled installation, maintenance or upgrade or as otherwise agreed between the parties;

3.1.4 cooperate with Customer’s reasonable requests to ensure that there is minimum disruption to any Services provided to Customer;

3.1.5 in the event that TFM is ceasing to provide any specific Service to its customers, give Customer reasonable notice that the provision of such Service to Customer will cease. In such event TFM shall co-operate with Customer either to offer an alternative Service or to assist in migrating such Service to an alternative provider;

3.1.6 in the event that TFM is providing a Revenue Share Service hereunder, pay any revenue share (if applicable) due to Customer in respect of such Service in accordance with calculations based solely upon information collated by TFM or Network operator, SAVE THAT no sums shall be paid and no rebate shall be due to Customer in connection with such Revenue Share Service if:

(a) in TFM’s reasonable opinion fraud or Artificial Inflation of Traffic has taken place; or

(b) the corresponding payment or rebate from any Network operator or any other transit operator to TFM has not been paid and in such event, TFM shall be entitled to withhold any such sums otherwise payable or rebate otherwise due to Customer or, if payment has already been made or rebate already given to Customer, shall be entitled to recover any such payment or rebate immediately upon written notice to Customer.

4 Customer’s obligations to TFM:

4.1 Customer shall:

4.1.1 pay all amounts due to TFM on or before their due date for payment;

4.1.2 provide TFM or TFM’s appointed contractors with a suitable environment to provide the Services at any Location, including without limitation the provision of adequate power and reasonable access to such Location and obtain all applicable consents, licences, waivers and registrations to the extent necessary for TFM to provide the Services and if necessary to deliver, install, repair, maintain or improve Equipment at each Location.

4.1.3 deploy the Services only for the purposes specified in the relevant Service Specification subject to the terms hereof and not utilise the Services (or permit them to be so utilised) anywhere other than at the Locations.

4.1.4 not introduce hardware or software (or permit modifications to be made to hardware or software or to the environment in which hardware is installed) which may interfere in any way with the Services or decompile, emulate, disassemble or similarly exploit any of the Services;

4.1.5 cooperate with TFM’s reasonable requests designed to ensure that there is minimum disruption to any Services;

4.1.6 provide TFM with with all assistance reasonably requested by TFM to enable it to resolve any fault to enable it to comply with the agreed Service standards as specified in the relevant Service Specification;

4.1.7 at all times comply (and ensure that all users comply) with TFM’s Acceptable Use Policy in respect of each Service provided by TFM hereunder;

4.1.8 procure that no person using any of the Services attempts to reverse engineer, de-compile emulate or disassemble any software or hardware configuration installed or owned by TFM or otherwise relied on by TFM in order to provide the Services;

4.1.9 comply with any laws, regulations or conventions relating to consumer protection which may be applicable to the use of the Service and with any public policy related laws, which may be applicable to the use of the Service by third parties (such as privacy laws and laws relating to defamation, libel and decency with respect to the content of the communications transmitted using the Service).

5 Services provision

5.1 Customer shall, subject to the terms of the Service Specification, ensure that all matters or conditions which are specified as “Dependencies” are completed or satisfied in order for TFM properly to provide Services. TFM shall not be liable if the Services cannot be provided as a result of those matters identified as Dependencies not being complied with or satisfied.

5.2 Unless requested otherwise by Customer, TFM shall upon receipt of the Service Order immediately place an order for any Equipment. If for any reason Customer requests that such order be delayed then Customer accepts that any increase in the price for such Equipment (by way of currency fluctuation or otherwise) will be borne by Customer and invoiced accordingly.

5.3 TFM’s installation commitment relating to the Services is set out in the Service Specification. In the event that TFM is unable to meet this commitment owing to matters outside TFM’s reasonable control TFM reserves the right to invoice additional charges at TFM’s standard rates. Any additional cabling or other equipment required that is not specified in the Service Specification may be subject to additional charges.

5.4 Services shall be deemed to be installed and operational unless Customer notifies TFM in writing to the contrary within three days following the Operational Service Date.

5.5 Unless otherwise stated in the Service Specification Customer shall be responsible for (and shall repair) all damage (other than physical damage caused by TFM’s staff or representatives) caused to any property or installation in connection with the provision of the Services (extending also to connections to and from the Locations). For clarity, any known action or requirement which would lead to damage necessitating repairs to any property at the Locations must be advised by one party to the other and only progressed with the other party’s prior consent, such consent not to be unreasonably withheld or delayed.

5.6 TFM and Customer shall each appoint one suitably skilled and experienced senior level manager to handle general issues of co-operation and co-ordination in respect of the provision of the Services. In addition to communications in the ordinary course of business these representatives shall be entitled to request a meeting at least once every three months to review the provision of the Services and to discuss ways in which Services may be enhanced.

5.7 If at any time TFM fails to comply with the agreed Service standards as specified in the relevant Service Specification, Customer shall as soon as practicable advise TFM in writing of the failure. TFM shall be liable to pay Service Credits (which will be included in the next invoice following agreement of the value of the relevant Service Credit) in accordance with the terms set out in the Service Specification. Payment of such Service Credits shall be Customer’s sole remedy in respect of any such failure to comply.

5.8 Unless otherwise stated in the Service Specification, TFM cannot guarantee that the Services, or any data generated, stored, transmitted or used via or in connection with the Services, will be uninterrupted, secure, error-free, complete, accurate or up to date. TFM do not provide a back-up of Customer’s data or guarantee the integrity of Customer’s data.

5.9 TFM may appoint a sub-contractor to deliver any part of the Services at TFM’s absolute discretion.

6 Suspension of Services

6.1 TFM may suspend or interrupt or impair the Services for pre-notified service maintenance or enhancement procedures. If TFM do suspend Services for this reason TFM will restore them as soon as is reasonably possible. No Service Credits will be paid in respect of such pre-notified service maintenance or enhancement.

6.2 TFM may also suspend the Services:

6.2.1 if an invoice properly raised by TFM becomes overdue;

6.2.2 as a consequence of Customer’s persistent breach of this Agreement;

6.2.3 if TFM have reasonable grounds to believe that any Services provided hereunder are being used by Customer or by any other person using the Services, fraudulently or illegally.

6.3 Following any suspension under clause 6.2 TFM may charge a fee for each subsequent reconnection to cover TFM’s time and materials based on standard engineering and administration rates.

6.4 If TFM exercise its right to suspend under clause 7.2 TFM shall not be prevented from exercising any right of termination or claim for damages due to the same or similar circumstances.

7 Intellectual property

7.1 TFM grants to Customer a non-exclusive, royalty-free, licence to use the Services during the terms of this Agreement only. With the exception of such licence, nothing in this Agreement shall be construed to transfer or licence any Intellectual Property Rights (or other similar rights) to Customer (including without limitation know how, goodwill, industrial property rights, or other rights in and associated with TFM’s corporate and trading names and marks.

7.2 TFM shall have the right to use Customer’s name and corporate logo for both internal and external marketing purposes and Customer grants to TFM a non-exclusive, royalty-free, licence to use such name and logo solely for such purposes.

8 Charges and Payment

8.1 TFM shall invoice Customer the Charges as stated in each Service Order. For the avoidance of doubt, and unless otherwise agreed in writing between the parties, TFM will invoice Customer in advance for all hardware and any set-up costs, inclusive of any agreed excess construction charges.

8.2 TFM may invoice Customer in arrears for any charges incurred by Customer in excess of the Charges set out in the Service Order, including without limitation any charges for usage in excess of Customer’s agreed bundle. Such charges may be levied when TFM receive notification of such charges from the Network and may be invoiced by TFM at any time, including after the expiry or termination of this Agreement.

8.3 All invoices raised by TFM must be paid in cleared funds in TFM’s bank account without set-off within 30 (thirty) days of the date the invoice is received by Customer. All payments will be made by Direct Debit.

8.4 Any disputed invoice of part of an invoice should be raised by Customer within 10 business days of invoice receipt. For clarity, all undisputed invoices or part(s) of invoice(s) must be paid by the due date without set-off.

8.5 Interest on late payments: If an invoice is not paid by the due date for payment TFM may charge interest on the overdue amount at a rate equal to 4 per cent over the Bank of England’s base rate from time to time until the date that payment is received (whether before or after judgment). TFM shall also be entitled to recover from Customer all external costs reasonably and necessarily incurred in securing payment (including obtaining judgment).

8.6 Unless otherwise stated in the relevant Service Specification, Charges for all Services are subject to VAT (value added tax) and any other Governmental imposts or taxes.

8.7 Customer will remain liable for all Charges incurred for the use of the Service including use of any equipment stolen from Customer and any and all fraudulent use of the Service until such time as TFM receives proper notice of such theft or fraudulent use from Customer.

8.8 TFM reserves the right to pass on to Customer any increase in the Retail Price Index, any increase in the market price of the Services, or any increase in third party costs in respect of the Services at any time during this Agreement by giving Customer at least one month’s notice of such increase.

8.9 TFM reserves the right to pass on to Customer any costs it incurs (including its reasonable administrative costs) in respect of:

8.9.1 any failure by Customer to provide a suitable environment for TFM to provide the Services at a Location pursuant to clause 5.1.2;

8.9.2 any failure by Customer to provide such assistance requested pursuant to clause 5.1.6;

8.9.3 any specialist fault investigation charges;

8.9.4 any excess construction charges or suspension or termination fees levied by any Network;

8.9.5 any costs not included on the Service Order which are directly or indirectly relating to any uninstallation, removal or moving of Equipment required by Customer.

8.10 If there is a dispute between the parties in respect of any invoice each party shall each use all reasonable endeavours and co-operate with one another other in order to resolve the dispute as soon as reasonably practicable in accordance with the procedures set out in clause 13.

8.11 Without prejudice to any other of its rights under this Agreement, TFM may at its sole discretion set off any sum due to be paid to Customer by TFM under his Agreement against any sums due and owing by Customer to TFM.

8.12 TFM may conduct credit checks on Customer from time to time and at TFM’s discretion may require Customer to provide a security deposit to cover Customer’s credit payment terms in respect of payments becoming due under this Agreement.

9 Change control

9.1 TFM may by reasonable notice in writing notify Customer of any change to the Service, such notice containing details of the proposed change and the proposed date of implementation.

9.2 If TFM provides Customer with such notice of change Customer shall within five Business Days of receipt of such notice accede or decline the request (acceptance not to be unreasonably withheld or delayed, it being reasonable to decline the request only if the requested change will materially adversely impact the provision and proper use of the relevant Services by Customer in relevant Locations).

9.3 TFM may on reasonable notice substitute, change or reconfigure the Equipment at any time provided that such change does not alter the technical functionality of the Services.

9.4 Where a change request arises out of mandatory legal or regulatory requirements to which TFM are subject then TFM shall give Customer as much advance notice of the change as is possible (stating that it is a mandatory change) and Customer shall co-operate with TFM in making the necessary change.

9.5 This clause 10 shall be subject to any specific change control provisions as may be set out in the applicable Service Specification.

10 Force Majeure

10.1 If either party is prevented, hindered or delayed from performing its obligations hereunder as a result of a circumstance constituting a Force Majeure event it shall take reasonable steps to minimise the adverse impact on the other party, and shall consult with a view to agreeing the most appropriate course of action required to be taken in the circumstances.

10.2 The party affected by the Force Majeure event shall be excused from the performance of its obligations to the extent that it is prevented, hindered or delayed in performing them as a result of the circumstances constituting Force Majeure event, provided always that it complies with its obligations under clause 10.1. TFM shall not be liable to pay Service Credits or otherwise to compensate Customer for any breach of obligations as a result of a circumstance constituting Force Majeure.

11 Confidential information

11.1 For the purposes of this clause “Confidential Information” means in relation to each party all confidential or proprietary information relating to the business or trade secrets, processes, Intellectual Property Rights, know-how or methods owned by that party or learnt by it as a result of the implementation of this Agreement.

11.2 Each party agrees to take the same care to avoid disclosing Confidential Information of the other party to any third party as it takes with similar information of its own which it does not wish to disclose.

11.3 Each party agrees that it shall not use any Confidential Information of the other party for any purpose other than the performance of its obligations or enforcing its rights under this Agreement and that it may only disclose Confidential Information of the other party to those of its personnel and professional advisors who require such Confidential Information for those purposes. This obligation shall continue for five (5) years after termination or expiry of this Agreement.

11.4 This clause does not apply to Confidential Information which the recipient can show to the disclosing party’s reasonable satisfaction:

11.4.1 was known to the recipient (without obligation to keep the same confidential) at the date of the disclosure;

11.4.2 is after the date of disclosure lawfully acquired by the recipient in good faith from an independent third party who is not subject to any obligation of confidentiality in respect of such Confidential Information;

11.4.3 in its entirety was at the time of disclosure or has become public knowledge otherwise than by reason of the recipient’s neglect or breach of the restrictions set out in this or any other agreement; or

11.4.4 is independently developed by the recipient without access to any or all of the Confidential Information.

11.4.5 is required to be disclosed by law or governmental regulation,

12 Assignment of rights

12.1 This Agreement shall be binding upon and endure for the benefit of the successors in title to the parties but (save as set out below) shall not be assignable by either party without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed.

12.2 It is agreed that it shall be reasonable for TFM to withhold its consent to Customer assigning this Agreement to a party which TFM reasonably considers to be in competition with TFM.

12.3 TFM may assign the benefit of this Agreement to a member of the same Group provided that TFM gives Customer reasonable notice of such assignment.

13 Dispute resolution procedure

13.1 If there is a dispute between the parties either in relation to the interpretation of this Agreement or the performance by either party of its obligations hereunder which cannot be resolved at an operational level then, unless expressly provided otherwise, upon the written request of either party, each of the parties shall, within 30 days of the date of the dispute arising between the parties, appoint a designated representative whose task it shall be to meet for the purpose of endeavouring to resolve the dispute.

13.2 If the dispute cannot be resolved at, or within 10 Business Days of, a meeting between the parties’ designated representatives, the parties may attempt to settle it by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure (the “Model Procedure”).

13.3 The commencement of a mediation process will not prevent the parties from commencing or continuing court proceedings.

14 Termination

14.1 A party may immediately terminate this Agreement by written notice to the other party if the other party has a receiver, administrator, or other encumbrancer take possession of or be appointed over the whole or substantially all of its assets or enters into liquidation or is otherwise unable to pay its debts as they fall due (within the meaning of Section 123 of the Insolvency Act 1986) or ceases or threatens to cease to trade.

14.2 TFM may immediately terminate this Agreement by written notice to Customer if Customer undergoes a change of control (within the meaning of Section 840 of the Income and Corporation Taxes Act 1988) or if Customer’s bank account, administration or affairs are frozen by Customer’s bank or any order of the Court.

14.3 TFM may terminate this Agreement by written notice to Customer if Customer fails to pay any overdue sum properly due and owing to TFM within 7 days after receipt of written notice from TFM to so pay such overdue sum.

14.4 Notwithstanding any other rights under Agreement, either party may immediately on written notice to the other party terminate this Agreement if the other party commits a material breach or other persistent breach and, where (if such breach is remediable) fails to remedy the same within 30 days after being notified in writing to do so.

14.5 Any termination of this Agreement by TFM pursuant to clauses 14.1, 14.2 or 14.3 shall be without prejudice to TFM’s right to receive payment in full of all sums due to TFM under this Agreement including without limitation all Charges due to the end of the Initial Contract Term or applicable notice period.

14.6 TFM may terminate this Agreement (immediately on written notice if OFCOM or any other authority of competent jurisdiction revokes TFM’s authorisation as a Public Electronic Communications Network under the Communications Act 2003 or any other relevant authorisation without which TFM are unable to provide the Services. In such event TFM shall:

14.6.1 provide as much notice as is reasonably possible of any such termination; and

14.6.2 use all reasonable endeavours to identify an alternative supplier of services similar or identical to the Services.

14.7 Termination or expiry of this Agreement shall not affect any accrued rights or obligations of either party as of the effective date of such termination or expiration.

14.8 On termination or expiry of this Agreement each party shall provide reasonable assistance to and co-operate fully with the other in connection with the removal of all network or other equipment installed or provided by TFM (other than equipment owned by Customer). Customer will be obliged to pay for all Services to the end of the term of this Agreement.

14.9 The provisions of clauses 7 (intellectual property), 11 (confidential information), 14 (termination) and 15 (indemnities and limits on liability) shall survive termination or expiry of this Agreement.

15 Indemnities and limits on liability

15.1 Each party agrees to indemnify and hold harmless the other against all direct damages and costs suffered by it (including legal costs) in respect of any claim or action relating to:

15.2 any fraudulent act or omission by either party, misuse of any of the Services from a Location or routing of any Services outside of a Location; or

15.3 any claim relating to the infringement by either party of any Intellectual Property Rights relating to the provision of the Services; or

15.4 any claim by either party which arises in whole or in part from any failure of or deficiency in the provision of the Services or any breach of contract, misrepresentation or negligence on the part of the other party.

15.5 Neither party shall be liable under or in connection with this Agreement or any Service Provision Agreement, whether in contract, tort (including negligence), misrepresentation (other than where made fraudulently), breach of statutory duty or otherwise for:

15.5.1 any loss or corruption of data (except where the loss or corruption results from a failure properly to provide the Services or negligence, and could reasonably have been anticipated); and/or

15.5.2 for any other indirect or consequential loss whatsoever incurred by any person.

15.6 TFM’s liability to Customer hereunder shall in no circumstances exceed 100% of the aggregate amount invoiced by TFM to Customer and payable by the Customer in respect of the relevant Services in the preceding 12 months (or, in respect of the first 12 months of this Agreement, the amounts payable during that period).

15.7 Nothing in this Agreement shall exclude or limit either party’s liability for fraud or for death or personal injury due to its negligence or otherwise to the extent that an exclusion of liability is prohibited by or unenforceable under English law.

16 Retention of Title/ Risk

16.1 All Equipment will remain TFM’s property until the price has been paid in full and Customer shall remain only a bailee until payment is made unless the Equipment is subject to a rental service in which case the Equipment shall remain TFM’s property at all times.

16.2 The risk of Equipment being damaged or lost shall be borne by Customer from the moment of delivery of the Equipment to the relevant Location. Customer will return the Equipment to TFM at the end of this Agreement in the same condition in which it was received allowing for normal wear and tear. Failure to return the Equipment will incur a surcharge on Customer’s final invoice equivalent to the purchase price of the Equipment.

17 Data Protection

17.1 Each party shall comply with the provisions of any applicable data protection legislation in force in the United Kingdom from time to time including without limitation the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) as applicable (“Data Protection Laws”).

17.2 Customer hereby authorises TFM to store and process personal data provided by Customer for the purposes of TFM providing the Service. In doing so TFM shall comply with the terms of TFM’s privacy policy as amended from time to time, a copy of which has been provided to the Customer.

17.3 Where TFM, as part of the fulfilment of its obligations under this Agreement, processes personal data as a data processor on behalf of Customer acting as a data controller, TFM shall:

17.3.1 comply with Customer’s instructions in relation to the processing of personal data as such instructions are given and varied from time to time;

17.3.2 at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and

17.3.3 notify Customer if it receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data under this Agreement, provide full co-operation and assistance in relation to any such complaint, notice or communication.

17.4 TFM shall provide to Customer on request a copy of all personal data held by it pursuant to this Agreement, in the format and on the media reasonably specified by Customer, and shall promptly inform Customer if any such data is lost or destroyed or becomes damaged, corrupted, or unusable.

17.5 Customer warrants to TFM that:

17.5.1 it has all necessary rights to authorise TFM and/or member of TFM’s Group to process such personal data;

17.5.2 all personal data provided by Customer for use in connection with the Services shall comply in all respects, including in terms of its collection, storage and processing with Data Protection Laws;

17.5.3 it will not send personal data to TFM which is not necessary for the provision of the Services under this Agreement;

17.5.4 any instructions is given by Customer to TFM in respect of the processing of such personal data will not put TFM and/or applicable member of TFM’s Group in breach of Data Protection Laws.

18 General provisions

18.1 The terms of this Agreement are incorporated into the Service Specification. If there is any conflict between the terms of this Agreement the Service Specification in respect of any specific Service, the terms of the Service Specification shall prevail.

18.2 Nothing in this Agreement shall be deemed to constitute a partnership or any employment relationship between the parties nor shall anything in this Agreement be deemed to constitute one party the agent of the other for any purpose.

18.3 TFM requires that any party with whom TFM does business act at all times in a professional and ethical manner in carrying out their contractual obligations to TFM. To that end Customer undertakes to comply strictly with any and all laws applicable to this Agreement (“Applicable Laws”) including, but not limited to:

18.3.1 anti-corruption laws pursuant to the Bribery Act 2010; and

18.3.2 anti-tax-evasion laws pursuant to the Criminal Finances Act 2017 and shall on written request provide TFM with a copy of Customer’s policies in respect of such Applicable Laws and evidence of such compliance. Any violation of Applicable Laws shall represent breach of this Agreement and may result in immediate termination of this Agreement.

18.4 TFM acknowledges that Customer is subject to obligations under the Freedom of Information Act 2000 and agrees to provide Customer with all information that Customer may reasonably require to enable Customer to comply with such obligations.

18.5 Customer agrees to cooperate with TFM to create and issue marketing and advertising collateral. The content and use of all collateral are subject to approval by both parties, such approval not to be unreasonably withheld or delayed.

18.6 No variation of this Agreement shall be effective unless made in writing and signed by or on behalf of a duly authorised representative of each of the parties.

18.7 This Agreement includes all the obligations, liabilities, representations and warranties assumed or given by TFM to Customer and supersedes all prior agreements, undertakings, arrangements, understandings or statements of any nature given by TFM whether oral or written. Customer acknowledges that it has not relied on any statements, warranties or representations given or made by TFM under or in connection with this Agreement save as expressly set out herein and further acknowledges that Customer shall have no rights or remedies with respect to such subject matter other than under this Agreement.

18.8 It is not intended that a third party should have the right to enforce a provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999. The parties may rescind or vary this Agreement without the consent of (and without reference to) any third party.

18.9 Notices given under this Agreement may be given by electronic mail sent via the Internet or by conventional mail at the relevant addressee’s registered office address. A notice sent by email shall be deemed served upon receipt by the party sending the email of an electronic acknowledgement of receipt by the recipient’s network, and if posted using conventional mail, 48 hours after posting.

18.10 No waiver by either party of any breach of any provision of this Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

18.11 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected.

18.12 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

19 Definitions and Interpretation

19.1 In this Agreement the following expressions shall have the following meanings:

this Agreement means this Master Services Agreement, the Service Order and the provisions of any Service Specification;

Acceptable Use Policy means TFM’s policy with respect to the acceptable use of the Services as set out in the Service Specification;

“Artificial Inflation of Traffic” means a situation where the flow of calls to any particular Revenue Share Service is as a result of any activity by or on behalf of the party operating that Revenue Share Service disproportionate to the flow of calls which would be expected from good faith commercial practice and usage;

Business Day means any day which is not a Saturday, a Sunday or a bank or public holiday in England;

Charges mean all set up, usage and related charges being the amounts payable by Customer for the provision of the Services as stated in each Service Order.

Equipment means any hardware, cabling, peripherals, software or any other equipment that TFM provide to Customer as part of the Service;

Force Majeure means, in relation to either party, any circumstances beyond the reasonable control of that party (including without limitation any acts or restraints of governments or public authorities, war, Act of God, revolution, riot or civil commotion but excluding strikes and lockouts, any failure of the copper or fibre connection or relevant carrier exchange or infrastructure outside TFM’s direct control) which would not have been avoided or mitigated by the exercise of all reasonable care by that party and further provided that such event materially affects the ability of the party seeking to rely upon it to perform its obligations under this Agreement;

Group means, in relation to any company, that company and the following for the time being: its subsidiaries, and its holding companies and their subsidiaries (“holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006);
Initial Contract Term means the initial term for which TFM agrees to provide each Service, as specified in the applicable Service Order;
Intellectual Property Rights means

(i) patents, designs, trademarks and trade names (whether registered or unregistered), copyright and related rights, database rights, know-how, domain names and confidential information;

(ii) all other intellectual property rights and similar or equivalent rights in the world which currently exist or are recognised in the future; and

(iii) applications, extensions and renewals in relation to any such rights;

Location means in respect of each Service Order, the location to which the relevant Service is to be delivered;
Network means, if applicable, any telecommunications network underlying the Services;

Operational Service Date means the date that the Service is ready for use by Customer;

“Revenue Share Service” means a service where Network operator pays to its customer an element of the conveyance charges which that Network operator receives for calls to such service;

Service Order means the document signed by both Customer and TFM which sets out the Services ordered by Customer, details of the Charges, the Initial Contract Term and other information applicable to the Services;

Service Credits means deductions (calculated in accordance with the provisions of the Service Specification) to be made from invoices issued to Customer by way of compensation in respect of a breach of TFM’s obligations as set out in the Service Specification;

Service Specification means a document setting out details of the specific Services to be provided by TFM hereunder including specific provisions in relation thereto;

Services means the services which TFM agrees to provide to Customer hereunder as set out in the Service Order and as more specifically described in the Service Specification and shall include any Equipment;

19.2 The clause and schedule headings and bold summary wordings are for convenience only, and shall not affect the interpretation.

19.3 References to the singular include the plural and vice versa, and references to one gender include the other gender.

19.4 Any phrase introduced or qualified by the words or expressions “including” or “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.