Effective For All Customers From 01.09.16
Below is a copy of our current Terms and Conditions of Service.
1. Your Agreement with iomart
1.1 These Terms and Conditions should be read in conjunction with a completed Sales Order Form, in which you will find the Service, pricing and other arrangements specific to your contract with iomart. Signature of a Sales Order Form on behalf of both you and iomart creates a legally binding contract made up of that Sales Order Form, these Terms and Conditions and any schedules or appendices referred to in either document. For ease, that contract is referred to in these Terms and Conditions as the "Agreement".
2.1 To make these Terms and Conditions easier to read, we have given the following expressions a specific meaning, when used in this Agreement:
AUP means iomart's standard acceptable use policy, a copy of which is provided with the Sales Order Form and the terms of which may be updated by iomart from time to time on written notice to you;
Agreement has the meaning given to that term in paragraph 1.1;
Charges means the charges that you will pay to iomart pursuant to paragraph 5, as detailed in the Sales Order Form and updated from time to time;
Data Centre means a data centre operated by iomart or a member of its group of companies;
DPA Regulations means the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the EU Data Protection Directive
95/46/EC together with all the relevant mandatory guidelines issued by the UK Information Commissioner (as updated or amended from time to time);
Effective Date means the date of these Terms and Conditions as set out on the Sales Order Form;
Energy Charges means any taxes levies costs and expenses whether direct or indirect arising out of or attributable to any requirement on iomart or any of its suppliers or customers to comply with any Energy Law or otherwise in connection with energy use or consumption or emissions of greenhouse gases;
Energy Law means any applicable Law (including but not limited to the EU Emissions Trading System, the UK Climate Change Levy, the Energy Act 2011 and Climate Change Act 2008) which make provision for energy charges or levies or which imposes or increases any taxes, charges or levies of any nature in respect of use of power or energy consumption (whether directly or indirectly);
Initial Term means the initial term of this Agreement, as set out in the Sales Order Form; iomart means iomart Hosting Limited, (Co. No. SC275629), whose registered office is at Lister Pavilion, Kelvin Campus, West of Scotland Science Park, Glasgow, G20 0SP;
Law means any applicable law whether local, national or international including statute, statutory instrument, EU regulation having direct legal effect, and guidelines and codes which have legal effect;
Network means your connection to the internet as provided by iomart or an iomart third party supplier;
Recurring Service Charge means those charges identified as recurring charges as set out in the Sales Order Form;
Sales Order Form means a document bearing that heading which has been duly signed on behalf of both you and iomart, containing service, pricing and other arrangements specific to your contract with iomart;
Service means the services set out in the Sales Order Form;
SLA means the service level agreement attached as Schedule 1 to these Terms and Conditions, in accordance with which iomart will provide the Services; Start Date means the earlier of:
- i) two (2) months following the Effective Date; or ii) acceptance of the Services in accordance with paragraph 6; or iii) live use of the Services by you;
Terms and Conditions means these Master Services Agreement Terms and Conditions;
Third Party Services means services provided to you by any supplier other than iomart or an iomart agent;
Variable Service Charge means those variable charges as set out in the Service Order Form;
you and your means iomart's customer, being the person or entity that is identified in the Sales Order Form; and
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. The Services that iomart will provide
3.1 iomart will provide the Services to you in accordance with this Agreement:
3.1.1. to a standard that meets or exceeds the SLA; and
3.1.2. using reasonable care and skill.
4. Our Commitments to one another
4.1 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 this Agreement. iomart will not be bound by any Sales Order Form until it is accepted and signed by iomart and notified to you in writing.
4.2 Relevant licences. iomart confirms that it owns or is licensed to use the systems, products, and materials necessary to provide the Services to you.
4.3 Compliance with acceptable use policy. You will comply with the AUP during the term of the Agreement.
4.4 Third Party Services. You are responsible for ordering:
4.4.1. all lines or circuits you require from third party carriers to receive the Services; and
4.4.2. any necessary cross-connects from iomart and paying iomart's cross-connect charges.
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.
4.5 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.
4.6 Insurance. It is your responsibility to obtain insurance including professional indemnity insurance, as may be required by you for provision of the Services by iomart. If iomart asks you to do so, you must provide iomart with the relevant certificates of insurance. iomart 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.
5. Charges and their payment
5.1 Service Start Date. Iomart shall start invoicing you for the Services with effect from the Start Date.
5.2 Implementation/Setup Charges. When you sign this Agreement, iomart 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.
5.3 Recurring Service Charge. When you sign this Agreement, iomart will also invoice you for the Recurring Service Charge 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 iomart's initial invoice, iomart will invoice you for each further instalment of the Recurring Service Charge monthly in advance, each further invoice being payable within 30 days of the date on which it is issued to you.
5.4 Variable Service Charges. iomart will invoice you monthly in arrears for any Variable Service Charges that become payable as a result of the Services that iomart provides. Those Variable Service Charges will be calculated in accordance with the rates set out in the Sales Order Form.
5.5 Additional Services. If iomart provides any other Services to you, the Charges payable will be agreed in advance between iomart and you, in writing.
5.6 Third Party Services. In line with paragraph 4.4, you are solely responsible for paying any charges for the lease or use of telecommunications lines or any other Third Party Services.
5.7 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 ta x basis, will be payable by you to the relevant authority direct.
5.8 Service Provider Software Licensing. Where iomart provides software via a rental model using Service Provider Licensing Agreements, we reserve the right to pass on to you any price increase imposed by the relevant Software Provider where the software provided is solely used for the provision of the Services to you. Where any such increase does not apply solely to you, then iomart may make a reasonable apportionment of such charge to you. iomart will give you advance written notice of any such increase, together with any equivalent price increase notice received from the supplier concerned.
5.9 Payment of invoices. Unless you dispute an invoice with good cause, you must pay each iomart 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 this Agreement (the "Due Date"). You will not be entitled to deduct or off-set any amount that iomart may owe to you against an iomart invoice.
5.10 Suspension of Services for non-payment. If you do not pay an invoice (which is not disputed in good faith):
5.10.1. within 7 days of the Due Date, iomart may terminate this Agreement and restrict your access to any equipment that you own which is located on iomart's premises;
5.10.2. within 14 days of the Due Date, iomart will be entitled, at any time thereafter (until payment is made), to disable the Service. If iomart does disable the Service and you wish to have it re-enabled, iomart will charge you a re-connection fee calculated in accordance with the Sales Order Form; and
5.10.3. within 30 days of the Due Date, iomart may terminate this Agreement and end the Service permanently and charge you a de-installation charge calculated in accordance with the Sales Order Form. If we end the Service in that way, you will still be responsible for your obligations under this Agreement, including the obligation to pay Charges.
We will contact you at least 3 times outlining details of your overdue invoices before takin g any of the actions listed in this paragraph 5.10.
5.11 Increase in Charges. In addition to any annual change in the Charges imposed under paragraph 9.1, iomart may increase its Charges to reflect any change in the law or tax rules that affect operators of data centres, including any Energy Charges incurred by iomart in the provision of the Services. If a change of that kind is implemented, iomart 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.
5.12 Interest charge. If you do not pay any invoice (which is not disputed in good faith) in full by the Due Date, iomart 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. iomart'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.
6.1 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 Da te, the parties will prepare and will use reasonable endeavours to agree proposed acceptance criteria for acceptance tests for the Services.
6.2 Acceptance Tests. Iomart 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. Iomart 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.
6.3 Acceptance Remedies. If any part of the Services fails the agreed acceptance tests, iomart shall remedy the defects or deficiencies and will repeat the relevant tests within a reasonable time.
7. Third Party claims
7.1 Indemnity. If any claims or demands are brought against iomart or any iomart employee, officer, director or affiliate (each an "iomart 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, iomart's premises or equipment; or (iii) which allege any damage or destruction to any of iomart's customer equipment or data; or (iv) which allege any personal injury to or property damage of any iomart 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 iomart and the iomart 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 iomart or any iomart Entity. The limit on liability set out in paragraph 8.4 shall not apply to this indemnity.
7.2 Conditions of Indemnity. For the indemnity set out in paragraph 7.1: (i), iomart will promptly notify you in writing of the existence of any claim or demand covered by the indemnity; (ii) iomart will use reasonable endeavours to minimise any loss or damage which it may suffer; (iii) on request by iomart, you will allow iomart to participate in or conduct all negotiations and proceedings in relation to the defence and settlement of the claim; and (iv) where iomart permits you conduct or defence of the claim, you must obtain iomart’s prior written consent to the settlement of any claim (provided that iomart does not unreasonably refuse or delay giving its consent).
8. Limits of Liability
8.1 Limit of exclusions. Nothing in this Agreement excludes or limits iomart'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 is deemed to have been a fraudulent misrepresentation.
8.2 Service credits. Except where you have an express right to terminate the Agreement as set out in the SLA, the service credit regime set out in the 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 s to meet the service levels set out in the SLA.
8.3 Your obligations. You will take all reasonable measures to prevent and mitigate damages under this Agreement and will be solely responsible for the safe preservation and storage of all software and material delivered or created in relation to the Services. You will also make back up copies of your files at reasonable intervals, in order to allow lost or disrupted data to be recovered with reasonable efforts only.
8.4 Cap on liability. Provided that paragraph 8.1 will always apply, and subject to paragraph 8.3, iomart's and your total liability to each other in relation to loss or damage arising out of or in connection with this 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 iomart in the Initial Term; or (b) the total Charges paid or payable by you to iomart in the contract year concerned.
8.5 Liability to your clients. iomart will not under any circumstances be liable to you under this Agreement for any claim by any of your clients arising out of your failure to provide any services which you have agreed to provide to such client (whether such failure arises as a result of your negligence, breach of this Agreement or otherwise).
8.6 Exclusion of indirect losses. Provided that paragraph 8.1 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:
8.6.1. loss of profits;
8.6.2. loss of anticipated savings;
8.6.3. pure economic loss
8.6.4. loss of data;
8.6.5. loss of business opportunity and management time;
8.6.6. loss of goodwill
8.6.7. loss or damage that you incur as a result of third party claims or
8.6.8. indirect or consequential loss, costs, damages, charges or expenses, howsoever arising.
8.7 Exclusion of implied warranties. Subject to the warranties that iomart has given to you, under this 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. Without prejudice to the foregoing, iomart does not warrant, guarantee or undertake that any Service will be uninterrupted, error-free or capable of withstanding all cyber attacks or other unauthorised hacking or intrusions.
8.8 Data. In the event that your data is corrupted or lost or sufficiently degraded as to be unusable due to a breach by iomart of its obligations under this Agreement after its receipt or creation by iomart or during any processing of your data in accordance with the Services, you shall have the option, as your sole remedy, to require iomart, at iomart’s own expense to restore or procure the restoration of Customer’s data to the last available back-up point.
8.9 Cyber risk. iomart will perform the Services as set out in this Agreement, including, without limitation, by implementing appropriate security measures and firewalls where the same are part of the Service. iomart has no knowledge of the data or types of data iomart hosts under this Agreement. It is your responsibility to ensure that the Services are appropriate for the type of data that iomart hosts under this Agreement. iomart will act on reasonable instructions from you to tailor the Services to your business needs, but iomart 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.
9.1 Automatic Renewal. Unless terminated by either party in accordance with this Agreement, this Agreement shall take effect on the Effective Date and shall continue for the 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. 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 9.2 if you do not agree to the Charges being increased in accordance with this paragraph.
9.2 Terminating the Agreement on notice. Either you or iomart can end the Agreement by giving the other party at least 90 days' written notice in advance of and to expire the end of the Initial Term or any subsequent Renewal Term. Alternatively, you can end the Agreement on 90 days' written notice to iomart if you do not agree to an:
9.2.1 iomart proposed change to the AUP which you can demonstrate materially and adversely will affect your business; or
9.2.2 increase in the Charges imposed under paragraph 9.1.
although you must serve that notice in writing no later than 30 days after the amended AUP or increase in Charges is notified to you. After expiry of that 30 day period, the change or increase that was notified to you will be deemed to have been agreed and will take effect immediately.
9.3 Terminating the Agreement following a breach. Either of us may end this Agreement with immediate effect on prior written notice to the other if the other materially breaches its obligations 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.
9.4 iomart's specific rights to end the Agreement. iomart may end this Agreement with immediate effect on written notice to you where:
9.4.1 you have breached the AUP; or
9.4.2 you suspend, or threaten to suspend, payment of your debts, or you are unable to pay your debts as they fall due or you admit inability to pay your debts, or (being a company) you are deemed unable to pay your debts within the meaning of sectio n
123 of the Insolvency Act 1986, or (ii) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors other than (in the case of a company) for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or the solvent reconstruction of your company; or (iii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of you (being a
company) or (iv) an application is made to court, or an order is made, for the appointment of an administrator, or an administrator is appointed over you (being a company);or (v) the holder of a qualifying floating charge over your assets (being a company) has become entitled to appoint or has appointed an administrative receiver; or a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets; or (vi) a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, you or any part of your assets and such attachment or process is not discharged within 14 days; or any event occurs, or proceeding is taken, in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in this paragraph; or
9.4.3 you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business.
9.5 If section 233A of the Insolvency Act 1968 (as amended by the Insolvency (Protection of Essential Supplies) Order 2015) applies, iomart’s right to terminate this Agreement under paragraphs 11.4.2 and 11.4.3 above shall be suspended only to the extent that iomart is unable to contract out of this section.
9.6 Continuing liability. However this Agreement ends, each of us will still be responsible for claims or liability (including payments due) relating to the time before the Agreement ended.
9.7 The position after the Agreement ends. When this Agreement expires or terminates:
9.7.1 iomart will immediately stop providing the Service;
9.7.2 payments due or payable by you under this Agreement will become due and payable immediately, including any unpaid Charges due for the remainder of the
Initial Term or any Renewal Term (except where the Agreement has ended for iomart's material breach under paragraph 9.3);
9.7.3 within 30 days after this Agreement ends, each of us will return all Confidential Information of the other in its possession at the time this Agreement ends and will not make or keep any copies of that Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
9.8 Data Destruction. iomart will process hard disk drives that are used in the provision of the service as follows:
9.8.1 at the end of this Agreement, any hard disk drive provided exclusively as part of the Service will be made available for collection and iomart will charge you the cost of the hard disk drive. Alternatively, iomart will arrange for secure erasure and destruction of the hard disk at your expense;
9.8.2 in the case of a failure of a hard disk that is under the manufacturer’s warranty, iomart will, by default, return the disk unaltered to the manufacturer for repair or replacement. Alternatively, if requested in writing by you, iomart will arrange for the secure erasure and destruction of the hard disk and for the purchase of a replacement disk, all at your expense.
9.9 Termination Assistance. Where this Agreement is terminated for any reason, iomart’s sole duty to provide termination assistance shall be to allow you to access your data for the purposes of transferring this to you or to a replacement service provider. Iomart may at its discretion provide such other termination assistance as the parties shall agree in these circumstances, but shall not be obliged to do so.
9.10 Termination of SLA. On termination or expiry of this Agreement for any reason, any service levels set out in the SLA which apply to the Services, will no longer apply and will cease to have effect. Service levels will not apply to the provision of any termination assistance pursuant to paragraph 9.9 or any Services that continue for any reason after expiry or termination.
9.11 Survival. On termination or expiry of this Agreement for any reasons, the following paragraphs shall survive and continue in full force and effect: paragraph 4.6 (insurance), paragraph 5.9 (payment of invoices) paragraph 5.12 (Interest charge); paragraph 7 (third party claims), paragraph 8 (limits of liability), paragraphs 9.6 - 9.10 (termination), paragraph 10 (protection of confidential information), paragraph 11 (protection of personal data), paragraph 13.8 (dispute resolution), paragraph 13.13 (governing law).
10. Protection of Confidential Information
10.1 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 this Agreement , proprietary software and customer information (“Confidential Information”).
10.2 Maintaining secrecy. Each of us agrees that except as expressly permitted under this 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 iomart's case, to the other operators of iomart'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.
10.3 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 this 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.
11. Protection of Personal Data
11.1 In this paragraph 11, the terms “personal data”, “data”, “data subject”, “data controller”, “sensitive personal data”, “data processor” and “processing” have the meanings that they have in the DPA Regulations.
11.2 Each of us will, in the performance of our obligations under this Agreement, comply with the DPA Regulations applicable to us.
11.3 In addition, if iomart receives from you or processes any personal data on your behalf, iomart will, acting as data processor:
11.3.1. only process that personal data in accordance with this Agreement and your instructions;
11.3.2. not transfer any of the personal data outside the European Economic Area unless directed to do so by you in writing; and
11.3.3. implement appropriate technical and organisational measures against unauthorised or unlawful processing of that personal data as if iomart was the data controller and permit you to audit those measures on reasonable prior notice.
11.4 International clients. You acknowledge and agree that if you are a business located in a territory out with the European Union (EU), it is your responsibility to ensure compliance with the DPA Regulations (or equivalent) in relation to transfers of your personal data from iomart to you.
11.5 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:
11.5.1. should you use the Services to store, process or transmit credit or debit card information you will comply with the PCI DSS requirements; and
11.5.2. you will take all necessary steps to ensure you are properly advised by your card acquirer or a PCI DSS Qualified Security Assessor (QSA) with regards to your obligations and appropriateness of your Service.
11.6 Business Continuity. iomart 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 and ISO 27001. While iomart takes all steps provided in this 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 customer’s data. Customer is therefore responsible for determining the ultimate safety and integrity of its data.
12. General Provisions
12.1 Unenforceable Provisions. If any part of this Agreement is found by a court or other competent authority to be illegal or unenforceable then the rest of this Agreement will remain valid.
12.2 Circumstances outside either party's control. Except for the obligation to pay money, neither you nor iomart will be liable for any failure or delay in meeting our respective obligations under this 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.
12.3 Property rights. This 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 the Data Centre or in iomart'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.
12.4 Transfer of rights. This Agreement is personal to you and you may not assign or transfer your rights or subcontract your obligations under this Agreement either in whole or in part without iomart's prior written consent. We will not unreasonably refuse that consent.
12.5 Notices. Any notice given under this 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.
12.6 Status of the parties.iomart and you are independent contractors and this 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.
12.7 Changes to the Agreement. This Agreement may only be amended if both of us agree in writing.
12.8 Dispute resolution. If a dispute arises between you and iomart relating to this Agreement you and iomart will use reasonable commercial efforts to resolve the dispute at senior management level within 28 days of the dispute arising, failing which:
12.8.1. you and iomart agree that, within 14 days of the failure to resolve the dispute, either of us may pass the dispute to an Alternative Dispute Resolution (“ADR”) procedure officer of the Centre for Dispute Resolution (“CEDR”) as adopted by a suitable qualified mediator in London, England appointed by the senior executive officer of CEDR. Each of us will meet our own costs in those proceedings unless we agree otherwise as part of any settlement. If the dispute has not been resolved within a further 28 days or if either of us refuses or ceases to participate in an ADR procedure, or you and iomart cannot agree on an ADR procedure within 14 days of the failure to resolve the dispute, either of us may refer the dispute to the English Courts; and
12.8.2. nothing in this paragraph prevents either of us from going to court to seek a preliminary injunction or other order at any time if either of us thinks that such an action is necessary.
12.9 Delay in exercising rights. If either of us does not exercise a right which we have under this 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.
12.10 Documents making up this Agreement. A Sales Order Formand these Terms and Conditions, together with any schedules or appendices referred to in either document, make up the complete agreement and understanding between us in relation to the Services and replace any other agreement or understanding between us, written or oral. If a conflict is identified between the Sales Order Form and these Terms and Conditions, the Sales Order Formwill take precedence.
12.11 Status of headings. Headings have been included for convenience only and will not be used in constructing any provisions of this Agreement.
12.12 Interpretation. Any references in this 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.
12.13 Governing law. This Agreement and any claims arising out of it 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.