The Customer’s attention is particularly drawn to the provisions of clause 10.
1.1 definitions. in these conditions, the following definitions apply:
“Act” means the Telecommunications Act 1984 and any amendments modifications re-enactments or replacements of the Act that have or may be made from time to time.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Charges” means the charges, costs, expenses payable by the Customer for the supply of the Services (whether used by the Customer or a third party) in accordance with clause 6 whether set out in the Order, the Contract or due under these Conditions
including rates charged by the Supplier for the installation, maintenance or removal of any equipment required to provide the Services or for the reprogramming of any such equipment.
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 18.12 and to the exclusion of all other terms and conditions of the Customer.
“Contract” the contract between the Supplier and the Customer for the supply of Services in accordance with the Order and these Conditions and such other specific terms as are agreed in writing between the Customer and the Supplier from time to time.
“Customer” the person or firm who purchases the Services from the Supplier as named in the Order.
“Deliverables” the deliverables set out in the Order.
“Delivery Location” has the meaning set out in clause 4.2.
“ForceMajeure Event” has the meaning given to it in clause 17.1.
“Goods” the goods (or any part of them) set out in the Order.
“Goods Specification” any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Order” the Customer’s order for the supply of Services and or purchase of Goods, as set out in the Customer’s works order form attached to the front of these Conditions, or the Customer’s written acceptance of the Supplier’s quotation as the case may be.
“Services” means the telecommunication services that the Supplier has agreed to supply to the Customer set out in the Order for any of the following: fixed line and mobile voice calls including any network features and line rentals, internet access and standing monthly charges, telephone systems, non-geographic numbers, installation and or other services and products agreed from time to time.
“Small Business” means a Customer whose business has 10 employees or fewer, including part time and full time staff and voluntary workers who are registered with the business, and who notifies the Supplier of such fact.
“Supplier” Complete Communications Company Ltd registered in England and Wales with company number 3963426 and its successors in title and assigns from time to time.
“Website” means www.complete-comms.co.uk.
“Working Hours” means Monday to Friday 9.00am to 5.00pm.
1.2 In these Conditions, the following rules apply :
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and e-mails.
1.2.6 a reference to the Supplier shall include the Supplier’s partners, agents, employees and any other person authorised by the Supplier where relevant;
1.2.7 a reference to agreed in writing shall mean in the case of the Supplier agreement signed by a duly authorised director of the Supplier.
2. Basis of contract
2.1 the order constitutes an offer by the customer to purchase the goods and/or services in accordance with these conditions.
2.2 the order shall only be deemed to be accepted when the supplier issues written acceptance of the order at which point and on which date the contract shall come into existence (“commencement date”).
2.3 the contract constitutes the entire agreement between the parties. the customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the supplier which is not set out in the contract and no such statement, promise, representation, assurance or warranty shall be construed to vary, alter or expand these conditions.
2.4 any descriptions, catalogues or illustrations contained on thewebsite or other advertising produced by the supplier are issued and published for the sole purpose of giving an approximate idea of the goods and/or services described in them. they shall not form part of the contract or have any contractual force and shall be subject to variations from time to time by the supplier.
2.5 these conditions apply to the contract to the exclusion of any other terms that the customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless expressly varied in writing and signed by a director on behalf of the supplier.
2.6 any quotation given by the supplier shall not constitute an offer, and is only valid for a period of 20 business days from its date of issue.
2.7 all of these conditions shall apply to the supply of both goods and or services (as applicable) except where application to one or the other is specified.
3.1 the goods are described on the website, in the supplier’s brochures and in quotes created by the supplier’s employees for the sole purpose of giving an approximate idea and shall not form part of the contract. the supplier reserves the right on the sale of any goods to make, prior to delivery, any alteration to or departure from the description or specification or design of the goods, provided that it shall not to a material extent adversely affect the performance of the goods, and the customer cannot refuse to accept delivery of the goods or withhold payment for any goods on this basis.
3.2 the supplier reserves the right to amend the specification of the goods if required by any applicable statutory or regulatory requirements.
4. Delivery of goods
4.1 the supplier shall ensure that each delivery of the goods is accompanied by a delivery note which shows the date of the order, all relevant customer and supplier reference numbers, the type and quantity of the goods (including the code number of the goods, where applicable), and, if the order is being delivered by instalments, the outstanding balance of goods remaining to be delivered; and
4.2 the supplier shall deliver the goods to the location set out in the order being the address of the customer or such other location as the parties may agree (“delivery location”) at any time after the order is accepted by the supplier.
4.3 delivery of the goods shall be completed on the goods’ arrival at the delivery location.
4.4 any dates quoted for delivery of the goods are approximate only, and the time of delivery is not of the essence. the supplier shall not be liable for any delay in delivery of the goods that is caused by a force majeure event or the customer’s failure to provide the supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the goods.
4.5 if the supplier fails to deliver the goods, its liability shall be limited to the costs and expenses incurred by the customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the goods. the supplier shall have no liability for any failure to deliver the goods to the extent that such failure is caused by a force majeure event the customer’s failure to provide the supplier with adequate delivery instructions for the goods or any relevant instruction related to the supply of the goods.
4.6 if the customer fails to accept or take delivery of the goods within 10 business days of the supplier notifying the customer that the goods are ready, then except where such failure or delay is caused by a forcemajeure event or by the supplier’s failure to comply with its obligations under the contract in respect of the goods:
4.6.1 delivery of the goods shall be deemed to have been completed at 9.00 am on the 11th business day following the day on which the supplier notified the customer that the goods were ready; and
4.6.2 the supplier shall store the goods until delivery takes place, and charge the customer for all related costs and expenses (including insurance).
4.7 if 20 business days after the supplier notified the customer that the goods were ready for delivery the customer has not taken delivery of them, the supplier may resell or otherwise dispose of part or all of the goods.
4.8 the supplier may deliver the goods by instalments, which shall be invoiced and paid for separately. each instalment shall constitute a separate contract. any delay in delivery or defect in an instalment shall not entitle the customer to cancel any other instalment.
5. Quality of goods
5.1 the supplier confirms that all goods are carefully tested and inspected prior to despatch.
5.2 the supplier warrants that on delivery, and for a period of 12 months from the date of delivery (“warranty period”), the goods shall:
5.2.1 conform in all material respects with their description;
5.2.2 be free from material defects in design, material and workmanship;
5.2.3 be of satisfactory quality (within the meaning of the sale of goods act 1979); and
5.2.4 be fit for any purpose held out by the supplier.
5.3 subject to clause 5.4, if:
5.3.1 the customer gives notice in writing during the warranty period immediately upon discovery that some or all of the goods do not comply with the warranty set out in clause 5.1;
5.3.2 the supplier is given a reasonable opportunity of examining such goods; and
5.3.3 the customer (if asked to do so by the supplier) returns such goods to the supplier’s place of business at the supplier’s cost, the supplier shall only replace the defective goods and shall be under no obligation to the customer to provide any alternative remedy.
5.4 the supplier shall not be liable for the goods’ failure to comply with the warranty in clause 5.1 if:
5.4.1 the customer makes any further use of such goods after giving a notice in accordance with clause 5.3;
5.4.2 the defect arises because the customer failed to follow the supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the goods or (if there are none) good trade practice;
5.4.3 the customer alters or repairs such goods without the written consent of the supplier;
5.4.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
5.4.5 the goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.5 except as provided in this clause 5, the supplier shall have no liability to the customer in respect of the goods’ failure to comply with the warranty
set out in clause 5.1.
5.6 the terms of these conditions shall apply to any repaired goods supplied by the supplier under clause 5.3.
6. Title and risk
6.1 the risk in the goods shall pass to the customer on completion of delivery in accordance with clause 4.
6.2 title to the goods shall not pass to the customer until the supplier receives payment in full (in cash or cleared funds) for the goods and any other goods that the supplier has supplied to the customer in respect of which payment has become due, in which case title to the goods shall pass at the time of payment of all such sums.
6.3 until title to the goods has passed to the customer, the customer shall:
6.3.1 not remove, deface or obscure any identifying mark or packaging on or relating to the goods;
6.3.2 maintain the goods in satisfactory condition and keep them insured against all risks for their full price on the supplier’s behalf from the date of delivery;
6.3.3 notify the supplier immediately if it becomes subject to any of the events listed in clause 15.2.2 to clause 15.2.12; and
6.3.4 give the supplier such information relating to the goods as the supplier may require from time to time.
6.4 if before title to the goods passes to the customer the customer becomes subject to any of the events listed in clause 15.2.2 to clause 15.2.12 then, without limiting any other right or remedy the supplier may have:
6.4.1 the customer’s right to use the goods in the ordinary course of its business ceases immediately; and
6.4.2 the Supplier may at any time require the Customer to deliver up all Goods in its possession and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are held in order to recover them.
7. Supply of services
7.1 where the contract includes the purchase of goods by the customer, the supplier shall install the same at the customer’s required site, as agreed between the customer and the supplier (the “site”), and the customer herein confirms that they have the right to procure the instalment of the goods at the site. prior to delivery and installation of thegoods, the customer shall ensure that adequate electrical current and fittings are furnished at the site and the site has sufficient facilities in accordance with the suppliers installation instructions. if any special equipment or alterations to the building are required to enable the supplier to install the goods, these will be done by the customer at the customers cost and the customer shall obtain all necessary licences and consents for any alterations and any permissions necessary to access or cross any land in order to obtain access to the site where the customer requires the goods to be installed. the supplier reserves the right to charge for any re-siting of goods after
the initial installation.
7.2 the goods will be installed by the supplier under the supervision of the suppliers authorised representative, however the customer is responsible for and shall furnish the necessary additional labour required by the supplier for placing any and all equipment where free access to the installation site it not available or where installation outside the suppliers normal working hours is required.
7.3 the supplier herein agrees to provide the services in accordance with the contract from time to time.
7.4 the supplier shall use all reasonable endeavours to meet the times, dates and periods for the supply of the services as set out in the contract, but any such times, dates or periods shall be estimates only and time shall not be of the essence for the performance of the services.
7.5 the supplier shall have the right to make any changes to the services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the services, and the supplier shall notify the customer in any such event.
7.6 the customer acknowledges that the telephone network services may be provided via a number of different telephone network providers and that the supplier is not limited to using a single supplier in providing the services.
7.7 the supplier reserves the right to provide the services to the customer by such telephone network providers as the supplier in its absolute discretion determines from time to time provided that in doing so (i) the charges to the customer do not increase by more than 10% above the charges set out in the contract and or (ii) the supplier reasonably believes it is in the best interest of the customer or the supplier to do so.
7.8 the customer herein authorises the supplier to reprogram the customers telephone equipment when required.
7.9 the supplier will endeavour to carry out installation work under the contract during working hours, but may request access to the customer’s premises outside ofworking hours in order to supply the relevant services or to install the goods in accordance with the contract.
7.10 the supplier may carry out installation work under the contract to provide the services outside theworking hours at the customer’s request and if the supplier agrees to comply with such a request the customer must pay the additional charges in accordance with clause 11.10
7.11 the customer acknowledges that the supplier is under no obligation to ensure that the supplier’s telephone call charges or any charges will at all times be at the lowest rate and the supplier provides no such guarantee.
7.12 the customer acknowledges that the suppliermaterials (hereinafter defined) used by the supplier to provide any of the services and all equipment installed by the supplier other than any goods shall remain the sole property of the supplier throughout the continuance of the contract.
7.13 any new telephone number provided to the customer under the contract is not guaranteed to be available by the supplier at the time the services are supplied, as a result of the fact that such telephone number has been withdrawn from the suppliers allocation for any reason whatsoever and the supplier shall not be liable for any loss incurred by the customer in the use of such telephone number prior to the services being supplied.
7.14 where the supplier has allocated telephone numbers to the customer as part of the services, the customer shall not acquire any rights whatsoever in any such telephone number allocated to them and shall not apply to register such telephone numbers as part of a trademark nor seek to ascertain that such telephone numbers form part of the customer’s goodwill.
7.15 the customer acknowledges that in providing the services the supplier cannot guarantee that the customer will obtain error free or uninterrupted use of such services and the customer acknowledges that the provision of the services is dependent upon the availability of such services as a result of geographical location, physical features, atmospheric conditions or other causes of interference.
8. Repairs & maintenance
8.1 in the event the order includes the provision of repair and or maintenance services by the supplier, the terms and conditions within the maintenance agreement between the customer and the supplier apply, provided the customer has duly executed the same and in which case the remainder of this clause 8 shall not apply.
8.2 subject to clause 8.1, if the customer requires the supplier to carry out any repair and or maintenance to the goods, or any equipment installed by the supplier to provide the services (the “access equipment”), the customer shall notify the supplier of the same and the supplier shall use their reasonable endeavours to carry out any repairs and or maintenance work as may be required, subject to payment by the customer of an
hourly fee at the supplier’s hourly charge out rate prevailing at the time the repair and or maintenance is carried out (the “hourly fee”) plus the cost of any parts required in order to carry out any repairs and or maintenance.
8.3 the hourly fee shall be payable for all time spent by the supplier in investigating and repairing and maintaining the goods and or any access equipment, including in the event that no work was required to be carried out by the supplier due to the goods and or the access equipment being fully functioning and in working order.
8.4 the customer shall allow the supplier and their employees, agents, subcontractors or service providers access to their property the goods and the access equipment in order to carry out any such repair and maintenance work.
8.5 the supplier shall carry out all repair and maintenance work with due care and attention and shall use all reasonable endeavours to ensure that no property belonging to the customer is damaged in carrying out such repair work.
8.6 the supplier shall be under no obligation to repair or maintain any access equipment or any goods required to provide the services in the event there is an electrical failure or defect in any such equipment due to any fault, failure or change in the electrical supply to the customer, the customer has misused or damaged the goods and or the access equipment, and it will be the customer’s responsibility to repair such failure or defect and the supplier shall not be responsible for any loss of the customer howsoever if the supplier is unable to provide the services or if the customer is unable to use the services.
9.1 subject to clause 9.2, unless otherwise stated in the order or agreed in writing between the supplier and the customer, the term for the contract, other than mobile telephone contracts (“non-mobile telephone contracts”) shall be for a minimum period of 60 months from the date of commencement of the non- mobile telephone contract (“term”).
9.2 subject to clause 9.7, if either party intends to terminate a non-mobile telephone contract on the expiry of the term notice to terminate the non-mobile telephone contract must be given at least 45 days prior to the expiry of the term (“notice period”).
9.3 subject to clause 9.7, if no notice is given in accordance with clause 9.2, within the notice period a non-mobile telephone contract shall automatically renew for a further 12 months, and these conditions, including without prejudice to the generality of the foregoing the notice provisions within this clause 4, shall apply to the automatically renewed non-mobile telephone contract.
9.4 subject to clause 9.5, unless otherwise stated in the contract or agreed in writing between the supplier and the customer, the term for any mobile telephone contract (“mobile telephone contracts”) shall be for a minimum period of 24 months from the date of commencement of the mobile telephone contract (“term”).
9.5 subject to clause 9.7, if either party intends to terminate a mobile telephone contract on the expiry of the term written notice to terminate the mobile telephone contract must be given at least 45 days prior to the expiry of the term.
9.6 subject to clause 9.7, if no notice is given in accordance with clause 9.5 or the customer accepts an upgrade on their mobile telephone contract or is provided a replacement mobile telephone, a mobile telephone contract shall automatically renew for a further 24 months, and these conditions, including without prejudice to the generality of the foregoing the notice provisions within this clause 9, shall apply to the automatically renewed mobile telephone contract.
9.7 where the customer is a small business or an individual at the date being 3 months prior to the end of the term of the contract, the supplier shall give the customer written notice 3months prior to the expiry of the term, confirming the end date of the contract and requesting that the customer provides written consent to renew the contract, and informing the customer that failure to do so will result in the contract being terminated and the services will no longer be provided from the end of the term. if no such consent is received within one month of such notice, the supplier shall give the customer further notice of the expiry of the term on the same terms, and if the customer fails to provide their written consent to renew the contract (on to the expiry of the term) the contract shall be terminated.
10. Customer’s obligations
10.1 the customer undertakes that it shall:
10.1.1 ensure that the terms of the order are complete and accurate;
10.1.2 co-operate with the supplier in all matters relating to the services and the goods;
10.1.3 provide the supplier, its employees, agents, consultants, service providers and subcontractors, with access to the customer’s premises, office accommodation and other facilities as reasonably required by the supplier to provide the services or deliver or install the goods;
10.1.4 provide the supplier with such information, materials and assistance as the supplier may reasonably require to supply the services or the goods, and ensure that such information is accurate in all material respects;
10.1.5 ensure, where the customer is not purchasing or using telecommunications apparatus of the supplier, that its telecommunications apparatus shall at all times conform to the relevant standard or standards (if any) for the time being designated under the act and the supplier shall not be under any obligation to connect or keep connected any of the customer’s apparatus if it does not conform with the act or if in the supplier’s reasonable opinion, it is liable to cause death, personal injury or damage to property or to impair the quality of any services provided by the supplier or to
put the supplier in breach of the supplier’s obligations to any third party;
10.1.6 ensure that there is no contravention of the act or any relevant regulations, licences, statute, codes of practice, any licence applicable to the supplier or customer or other legislation (including data protection legislation) in force from time to time regarding the provision or use of the services or use of the goods, whether by themselves or a third party;
10.1.7 obtain and maintain all necessary licences, permissions and consents which may be required for the services or the goods before the date on which the services are to start;
10.1.8 keep and maintain all materials, equipment, documents and other property of the supplier (“suppliermaterials”) at the customer’s premises in safe custody at its own risk, maintain the supplier materials in good condition until returned to the supplier, and not dispose of or use the supplier materials other than in accordance with the supplier’s written instructions or authorisation;
10.1.9 only use the services and the goods for its own use and shall not re-sell or sub-contract and or make available howsoever the goods and or the services to any third party;
10.1.10 not use the services or the goods:
10.1.11 as a means of communication for a purpose other than that for which the services and or the goods are provided as set out in the contract or the order, as the case may be;
10.1.12 for the transmission of any material which is defamatory offensive or of an abusive or obscene or menacing character or is of a nature which if transmitted would constitute a criminal offence or which infringes the rights of any third party including, but not limited to contractual rights and intellectual property rights; or
10.1.13 for any unlawful, immoral, illegal, misleading, deceptive or unethical use or purpose; or
10.1.14 in connection with the carrying out of fraud or criminal offences against any other public telecommunications operator; or
10.1.15 for any purpose which the supplier may notify to the customer from time to time by reason of any relevant legislation which comes into force.
10.1.16 not allow the services or the goods to be used by a third party howsoever;
10.1.17 indemnify the supplier from all losses, fines, damages, claims, costs and expenses suffered or incurred by the supplier arising from, or in connection with the use of the services in contravention of any other provision of this condition or in breach of any other provision of the contract or these conditions;
10.1.18 to notify the supplier immediately upon becoming aware that any repair and or maintenance work is required to any access equipment or any
other equipment through which the services are supplied by the supplier;
10.1.19 upon ceasing to use the services, allow the supplier, its partners, servants and or agents full access to its premises such that any equipment
remaining the property of the supplier but situated at the customer’s premises or otherwise can be removed and the customer shall pay the suppliers costs, charges and expenses for the removal of any such equipment and or related system programming.
10.2 if the supplier’s performance of any of its obligations in respect of the services is prevented or delayed by any act or omission by the customer or failure by the customer to perform any relevant obligation (“customer default”):
10.2.1 the supplier shall without limiting its other rights or remedies have the right to suspend performance of the services until the customer remedies the customer default, and to rely on the customer default to relieve it from the performance of any of its obligations to the extent the customer default prevents or delays the supplier’s performance of any of its obligations;
10.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 10.2; and
10.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
11. Charges and payment
11.1 The price for the Goods shall be the price set out in the Order (the “Purchase Price”). The price set out in the Order shall not apply to quantities of Goods less than those quoted in the Order. The Purchase Price is exclusive of all costs and charges of packaging, insurance and transport of the Goods, which shall be paid by the Customer at the same time the Customer pays the Purchase Price for the Goods.Where a Delivery Location is outside of Mainland UK, additional charges will be made to the Customer, as determined by the Supplier acting reasonably.
11.2 In respect of the Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery and the Customer shall pay the same in full without deduction, counterclaim, set-off, lien, or any other similar right or claim.
11.3 The Customer shall pay the Charges, as set out in the Contract or the Order as the case may be, in full for the provision of the Services monthly in advance, without deduction, counterclaim, set-off, lien or any other similar right or claim. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11.4 The Supplier shall prepare and send invoices to the Customer for the Services supplied by the Supplier each calendar month.
11.5 Any changes to the specification for the Goods and/or suspension of work by the Customer or failure by the Customer to provide the Supplier with instructions necessary for the Supplier to perform the Contract may result in an adjustment to the Charges and or the Purchase Price.
11.6 The Customer shall, unless otherwise agreed in writing by the Supplier, pay each invoice submitted by the Supplier:
11.6.1 within 14 days of the date of the invoice;
11.6.2 in pound sterling;
11.6.3 by direct debit or by an alternative method agreed in writing by the Supplier; and
11.6.4 in full and in cleared funds to a bank account nominated in writing by the Supplier.
11.7 Time for payment of each invoice submitted by the Supplier shall be of the essence.
11.8 All amounts payable by the Customer under the Contract or quotation are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). The Customer will pay VAT in addition to the Charges which will be paid in accordance with this clause 7 at the rate applicable from time to time.
11.9 The Customer shall pay all Charges for the Services supplied whether the Customer or a third party uses the Services,with or without the Customers authority.
11.10 The Charges payable for all Services supplied shall be calculated by reference to either the Supplier’s standard rates or by reference to data recorded and or logged by the Supplier relating to the use of the Services howsoever and for the avoidance of doubt such recordings or loggings shall be final and binding (in the absence of manifest error) and, for the avoidance of doubt Charges are not calculated by reference to any data recorded or logged by the Customer.
11.11 The Customer shall pay to the Supplier any cancellation charges, abortive visit charges, engineering visits, site survey charges, or maintenance service charges imposed on the Supplier by third parties and relating to the provision of the Services.
11.12 The Charges shall continue to be payable by the Customer during any period of suspension of the Services, in addition to any supplemental Charges for such suspension.
11.13 Where the Supplier agrees to work outside of Working Hours at the request of the Customer under clause 7.9, the Supplier may charge the Customer in accordance with the Supplier’s applicable charge out rate from time to time.
11.14 The Supplier reserves the right to:
11.14.1 increase its Charges and or rates for the provision of Services. The Supplier will give the Customer written notice of any such increase within the invoice submitted to the Supplier at any time prior to 60 days before the proposed date of the increase (the “Increase Notice”) and such increase shall take effect upon the expiry of the Increase Notice. The Customer shall be entitled to terminate the Contract immediately by giving the Supplier written notice within 45 days of the Increase Notice only in the circumstance where the increase is greater than 10% of the original price stated
in the Contract and or the Order as the case may be and in this case the terms relating to termination of this Contract shall apply in full; and
11.14.2 decrease its rates for the Charges for the Services at any time. Such decrease shall apply to all Services provided after the date of the decrease and shall be reflected in the Supplier’s next invoice.
11.14.3 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
11.14.4 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
11.14.5 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
11.14.6 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
11.15 Save where the Customer is a Small Business or an individual at the time of default, if the Customer fails to make any payment due to the Supplier under the Contract 14 days after the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2% per annum above HSBC Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. Where the Customer is a Small Business or an Individual at the time of default, the Suppliers ability to charge interest shall be limited to situations where such interest is as compensation for costs actually incurred by the Supplier as a result of the Customer’s default.
11.16 In addition to the Purchase Price, the Charges and any charges stated above the Customer shall be liable to the Supplier for the following charges:
11.16.1 If the Customer is disconnected for non-payment of the Charges or any charges under these Conditions, at the Supplier’s absolute discretion there will be a charge of £33.00 for each reconnected mobile connection, fixed line CLI or non-geographic number;
11.16.2 If the Customer’s payment is late, cancelled or dishonoured, there will be an administrative charge of £25.00 per mobile connection, fixed line CLI or non-geographic number;
11.16.3 If the Customer migrates a mobile number and or non-geographic number at the discretion of the Supplier, there will be a charge of £33.00 for disconnecting any equipment or service from one network or tariff and connecting it to another network or tariff;
11.16.4 If the Customer ports a mobile number and or non-geographic number at the discretion of the Supplier, there will be a charge of £33.00 for disconnecting the equipment or service from one network and connecting it to another network;
11.16.5 If the Customer wishes to port to another network or service provider, the Supplier will provide them with a porting authorisation code (“PAC Code”) after which they will have 28 days to port to another network or service provider. If the Customer’s Contract is still in effect, a PAC Code will not be issued until the Contract expires. The Customer will pay any outstanding sums owed to the Supplier to end the Contract, including all PAC Code charges before they can port their number(s).
11.17 If the Customer wishes to challenge an item of the invoice, they must do so within 30 days of the date of the invoice they are seeking to challenge.
11.18 The Supplier does not accept responsibility for delays in the billing of any Charges.
11.19 Calls made to overseas networks will be billed in sterling. This shall be calculated using the exchange rate applicable on the date the call was processed by the overseas network. The Customer acknowledges that this may differ from the exchange rate applicable at the time the call was made.
11.20 The Customer acknowledges that the Supplier shall measure the duration of each call (including, without prejudice to the generality of the foregoing, summarised and itemised calls) to a fraction of a second.
11.21 The Supplier shall charge a minimum call duration of 59 or 99 seconds for all landline calls, unless otherwise agreed in writing with the Supplier.
11.22 All calls over £0.75 will be itemised free of charge on the invoice. A complete itemised invoice may, save where the Customer is a Small Business or an individual at the time of the request of the Customer for such complete itemised invoice, in the absolute discretion of the Supplier, attract a duration surcharge of up to 50%on the invoice. The Supplier reserves the right to charge the Customer for the Supplier’s reasonable costs of postage for any complete itemised invoice the Customer requires to be sent by post.
11.23 The Supplier shall bear no liability to the Customer whatsoever in connection with any charges incurred by the Customer in respect of mobile voice or internet access Services provided by overseas networks.
11.24 In the event that the Customer terminates the Contract for Services before the expiry of the Term or fails to give the required 3 months’ notice prior to the expiry of the Term, the Supplier reserves the right to charge the Customer an early termination fee of £250 and invoice the Customer for loss of line rental, number rental and call revenue for the remainder of the Term or the short notice given. The sum will be calculated equal to the Customer’s average monthly bill from the start of the Contract if applicable or the estimated monthly Customer spend, at the discretion of the Supplier. The Customer shall also pay any outstanding invoices for other services, fixed line rentals, number rentals or mobile phone rentals that are due for the remaining contractual monthly outstanding rental charge and any concessions provided by the Supplier to the Customer (including without prejudice to the generality of the foregoing, free rental periods, hardware, access equipment and or system programming) must be repaid
in full at the Supplier’s standard rates.
12. Intellectual property rights
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services or the Goods shall be owned by the Supplier.
12.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services or the Goods, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer and the Customer shall, where required, sign any such agreement reasonably required by any relevant licensor to protect the licensor’s interest.
13.1 Subject to clause 13.3, a party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory
authority or by a court of competent jurisdiction. This clause 13 shall survive termination of the Contract.
13.2 All specifications, drawings, brochures and or technical documents issued by the Supplier are issued solely for the Customer’s use in connection with the Goods and or the Services and the Customer shall not copy, reproduce or communicate the content of the same to any third party without the express consent of the Supplier.
13.3 The Customer herein agrees and confirms that the Supplier may provide any service provider with such information about the Customer as the service provider may request and the Customer herein consents to such disclosure of information.
14. Limitation of liability: the customer’s attention is particularly drawn to this clause
14.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
14.1.2 fraud or fraudulent misrepresentation;
14.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
14.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
14.1.5 defective products under the Consumer Protection Act 1987; and
14.1.6 anything that English law prohibits the Supplier from seeking to exclude or limit.
14.2 Subject to clause 14.1:
14.2.1 the Supplier shall under no circumstances whatsoever be liable to the Customer,whether in contract, tort (including negligence), breach of statutory
duty, or otherwise, for any loss of profit, or any indirect or consequential loss or loss of anticipated savings arising under or in connection with the
14.2.2 the Supplier shall not be liable howsoever for any inaccuracies in the Contract and any resulting loss of the Customer therefrom whether direct or
indirect, or consequential including for misrepresentation; and
14.2.3 the Supplier shall not be liable howsoever for any failure of the Services and or the Goods resulting from a technical failure or for any corruption
or destruction of any data; and
14.2.4 the Supplier shall not be liable howsoever for any loss arising out of the Customers own acts, omissions, negligence or default or any acts,
omissions, negligence or default of any third party or of any employees, agents and or sub-contractors of the Customer; and
14.2.5 the Supplier shall not be liable howsoever for any additional costs incurred by the Customer in the event the Customer’s calls are made via, diverted to, or leaked to another telephone call provider or in the event the Services supplied to the Customer are used by a third party with or without the Customers knowledge and or consent; and
14.2.6 the Supplier shall not be liable howsoever in respect of any loss or costs incurred by the Customer as a result of any act, omission, neglect of default of any third parties employed, sub-contracted or used by the Supplier to provide the Services or the Goods; and
14.2.7 the Supplier’s total aggregate liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed a sum equal to the Purchase Price and or a sum equal to one months ’billing for the Services by the Supplier (subject always to a maximum liability of £50,000) based on the average billing for the Services supplied by the Supplier in the 3 months immediately preceding the month in which the loss occurred. If the Contract
commenced less than 3 months prior to the month in which the loss occurred, the average billing for the Services supplied by the Supplier since commencement of the Contract.
14.2.8 the Supplier shall not be liable for any claims arising fromCustomers being subject to fraudulent use of the Service or from a third party succeeding in “hacking” into the customer’s phone lines and all call costs will be paid in full by the Customer and the Customer warrants herein that they have taken out their own suitable protection against fraud and or “hacking” and shall utilise the same to the extent that the Services are subject to any such fraud and or “hacking”. The Customer herein indemnifies the Supplier in full and at all times on an ongoing basis to the extent that the Customer is in breach of this clause 14.2.8 and the Supplier incurs or suffers any costs, expenses, damages, liabilities or losses.
14.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.4 This clause 14 shall survive termination of the Contract.
15.1 An Order for Goods once accepted in writing by the Supplier is binding and may not be cancelled unless specifically agreed in writing and signed by the Supplier. On termination of an order for Goods the Supplier reserves the right to charge the Customer 25% of the Purchase Price for the Goods and/or 25%of the sum of all payments to be made to the Supplier under any finance agreement proposed to be entered into for the Goods. The Supplier also reserves the right to charge for any work done on any Goods or any services provided by the Supplier in respect of such Goods up to and including the date of the agreed cancellation and the Customer herein indemnified the Supplier in full and at all times on an ongoing basis for any costs, expenses, damages, liabilities or losses incurred by the Supplier as a result of such termination.
15.2 Without limiting its other rights or remedies, each party may terminate the Contract in respect of the Services with immediate effect by giving written notice to the other party if:
15.2.1 the other party commits a material breach of its obligations under the Contract or these Conditions and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
15.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
15.2.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.2.4 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 the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
15.2.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
15.2.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
15.2.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
15.2.8 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
15.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
15.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2.2 to clause 15.2.9 (inclusive);
15.2.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
15.2.12 the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if either (i) the Customer fails to pay any amount due under this Contract on the due date for payment or (ii) any licence under which the Customer has the right to run its telecommunications system and connect it to the Supplier’s system is revoked, amended or otherwise ceases to be valid.
15.4 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
15.4.1 the Suppliers service provider terminates the Suppliers contract for services and the Supplier is unable to provide the Services;
15.4.2 the Customer becomes subject to any of the events listed in clause 15.2.2 to clause 11.1.12, or the Supplier reasonably believes that the Customer is about to become subject to any of them; or
15.4.3 if the Supplier is obliged to comply with an order, instruction or request of the UK government, an emergency services organisation or other competent administrative authority; or
15.4.4 if the Customer has failed to pay any invoice by the due date for payment or in accordance with the Suppliers payment terms set out in clause 11.
15.5 If the Contract is suspended as a result of the matters listed in clause 15.4.2 or 15.4.4 the Customer shall reimburse the Supplier for all costs and
expenses incurred by the Supplier as a result of implementing such suspension or reconnection of the Services, as appropriate.
15.6 If the Contract is suspended as a result of the event listed in clause 15.3.4 the Supplier reserves the right to invoice the Customer for the remaining monthly rental or service charges or for any products not yet invoiced at the time of suspension of the Services for the minimum sixty month contract period for Non-Mobile Telephone Contracts or for Mobile Telephone Contracts rental amounts which, if invoiced would be due immediately for payment.
15.7 On termination of the Contract howsoever, the Customer must pay the Supplier any outstanding fixed line, mobile phone line rental, usage and all other charges incurred by using the Services up to the date of termination.
15.8 In the event of the Customer terminating the Contract, the Supplier shall not be obliged to refund any Charges for Services not yet provided, however the Supplier shall provide the Services for Charges already paid.
16. Consequences of termination
16.1 On termination of the Contract for any reason:
16.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
16.1.2 the Customer shall return all of the Supplier Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
16.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
16.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect; and
16.1.5 any non-geographic numbers shall remain the property of the Supplier.
17. Force majeure
17.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
17.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
17.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than four weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
18.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
18.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
18.3 Any notice, other than as set out at clause 18.2.2, or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
18.4 A notice given in accordance with clause 9.2 or 9.5 must be given by recorded delivery to the Supplier at its registered office or its principal place of business, or such other address as the Supplier may have specified to the Customer in writing.
18.5 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause
18.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
18.6 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
18.7 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such a modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
18.8 If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.9 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.10 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have the authority to act as agent for, or to bind, the other party in any way.
18.11 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
18.12 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
18.13 Governing law. 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.
18.14 Jurisdiction Each party irrevocably agrees that the courts of England andWales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Conditions for maintenance of equipment by Complete Communication Company Limited.
1.1 These conditions together with the maintenance agreement order attached to the front of these Conditions shall form the contract between the Company and the Customer (the “Contract”)
1.2 These conditions are the only conditions upon which Complete Communication Company Limited (the “Company”) is prepared to deal with its Customer (the “Customer”) and they shall govern the contract to the entire exclusion of any other express or implied conditions, unless otherwise agreed in writing by the Company and signed by a duly authorised director of the Company.
1.3 These conditions embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications.
1.4 The wiring between the network connection point as defined in the relevant legislation and any extension sockets is covered by this agreement, but the cost of any damage to this wiring shall be borne by the Customer at the maintenance current charging rates for work and materials, from time to time in force.
The term of this Agreement shall, subject to the provisions of this Agreement
providing for earlier termination, commence on the commencement date shown on the face hereof (the “Commencement Date”) and shall continue for 12 months (the “Initial Period”), and thereafter shall automatically renew for a further 12 months (the “Renewal Period”) such Renewal Period to be effective from year to year at the end of each Renewal Period until either of the parties shall give to the other at least forty five days prior written notice, sent by recorded delivery post to the Company’s registered office or to the Invoice Address for the customer as set out on the agreement attached to the front of these Conditions, to expire on any anniversary of the Commencement Date.
3. The customer’s obligations
The Customer agrees:-
3.1.1 To pay the initial annual maintenance charge for the Maintenance Service (as hereinafter defined) as specified on the face of this Agreement (the “Annual Charge”) for the equipment as detailed on the order attached to the beginning of this document (the “Equipment”) on or before the Commencement Date and thereafter annually on or before the anniversary of the Commencement Date. If payment is not made by the due date, Maintenance Service will be suspended until such time as all outstanding monies are paid in full.
3.1.2 To pay any additional payment that may become due during the period covered by the Annual Charge, as a result of adjustments in accordance with Clause 5 hereof upon presentation of the Company’s invoice in respect of such additional payments.
3.1.3 If payments due under Clauses 3.1.1 and 3.1.2 are not made in accordance with these clauses, the Maintenance Service will be suspended until such time as all outstanding monies are paid in full.
3.1.4 To orally notify the Company immediately of any fault in the Equipment or any repairs which may be necessary and to allow the Company’s engineers to have full free and timely access to the Equipment the Customer providing adequate and safe working and storage space and such other facilities as the Company’s engineers may reasonably require.
3.1.5 To ensure that the environmental conditions at the address on the face hereof being the site of the Equipment (the “Site”) (approved by the Company and/or any network operator) are maintained at all times and to ensure that all the conditions at the Site shall at all times comply with all relevant Statutory and other legal requirements.
3.1.6 Not to permit any person other than the Company to bring into service at the site any apparatus which is not itself part of the Equipment, which is to be connected to the Equipment unless the Company has so agreed.
3.1.7 Not to maintain service, repair or adjust or temporarily alter the Equipment or any part thereof or allow any person to do so
3.1.8 Not to move the Equipment from the Site without the prior written approval of the
3.1.9 To pay the Company’s charges for re-programming and/or service visits as a result of a programming error or service visits where the fault is not a fault in the Equipment or if the Equipment is reported as faulty and proves not to be so.
3.1.10 Not to assign the benefit of this contract or delegate the burdens of this contract without previous written consent from the Company
3.1.11 To provide the Company with any information that is reasonably requested in the
performance of the Maintenance Service and any Additional Services
3.1.12 To indemnify the Company against all liabilities costs and claims of whatever
nature from third parties in the event that the Company is unable to keep the Equipment in good working order due to causes within the control of the Customer or the Customer allows the Equipment to be altered, adjusted or interfered with by persons other than the Company’s authorised engineers or agents or other apparatus is fitted without the Company’s agreement thereto.
4. Interest and VAT
4.1 It is hereby agreed and declared:-
4.1.1 The Annual Charge and any other amounts payable under the terms of this Agreement are exclusive of Value Added Tax or any other similar taxes or levies or duties which will be added to or charged on invoices at the appropriate rate.
4.1.2 Interest at an annual rate of 4% above Barclays Bank Plc Base Rate from time to time will accrue daily and be calculated on a daily basis on any sum not paid on the due date, from the due date until payment in full and in cleared funds has been received by the Company.
5. Adjustment and variation of the maintenance charges
5.1 The Annual Charge may be adjusted at any time in the event that:-
5.1.1. The Maintenance Service provided for the Equipment is changed for any reason. The Annual Charge may then be adjusted to the appropriate rate for the revised service in accordance with the Company’s standard maintenance charges in force at the relevant time.
5.1.2 Any change is made to the requirements of the Network Operator affecting the provision of the Maintenance Service. In that event the Annual Charge shall be adjusted by such amount as is reasonable in the opinion of the Company.
5.1.3 The Customer requests that additional Equipment be made the subject of this Agreement and the Company agrees to maintain that Equipment.
5.2 In addition the Company may upon sixty days prior written notice to the Customer give notice of an increase in the Annual Charge. Such adjustments shall not be made at intervals more frequently than once in any twelve month period.
6. Force majeure
The Company shall have the right to cancel the provision of the Maintenance
Service if it is prevented from or hindered in providing the service through any circumstances beyond its control including (but not limited to) industrial action, war, fire or prohibition or enactment of any kind, without incurring any loss or damage whatsoever resulting there from.
7. The company’s obligations
7.1 Subject to the conditions set out herein and subject to the payment of the Annual Charge by the Customer to the Company, the Company shall, on being notified by the Customer that the Equipment requires repairing and or maintaining during the term of this Agreement and in normal working hours carry out in the manner set out in Schedule 1 such repair and replacement work as may be required to the Equipment at the Location Site resulting from fair wear and tear and/or faulty workmanship or faulty materials as is necessary to maintain the Equipment in efficient working order (the “Maintenance Service”).
7.2 The Company shall be under no liability in respect of:
7.2.1 Making good defects in electricity supply Network service and connections and/or host PABX systems, additional auxiliary equipment and cloud based solutions;
7.2.2 Any failure or defective working of the Equipment due to any fault failure or change in the electricity supply and/or Network service and connections and/or host PABX systems, additional auxiliary equipment and cloud based solutions;
7.2.3 Any failure or defective working of the Equipment caused directly or indirectly by any meteorological conditions including electrical storms;
7.2.4 Any defect in the manufacturer’s design of the Equipment;
7.2.5 The Customer failing to comply with its obligations under this Contract
7.2.6 The neglect or misuse of the Equipment by the Customer or anyone authorised by the Customer;
7.2.7 The Customer failing to notify the Company of such fault or necessary repair in accordance with clause 3.1.4 hereof.
7.3 At the request and expense of the Customer, and only where the Company in its absolute discretion elects to do so, the Company may carry out other work of repair and maintenance or replacement to the Equipment apart from that described in clause 7.1 or outside normal working hours (the “Additional Services”) and the cost for such Additional Services shall be the Company’s charge out rates as prevailing at the time of the call out.
8.1 Subject to the provisions of this Agreement the Company warrants that it, or its duly authorised employee, consultant or sub-contractor will exercise reasonable care and skill in the performance of its obligations hereunder.
8.2 The Company itself gives no undertaking or guarantee in respect of the description, quality or fitness for purpose of any materials used in the performance of its obligations hereunder but does undertake that, in the event that any defect in materials is notified to it within a reasonable time of work being carried out by it will use its reasonable endeavours to secure recompense from its own supplier in respect there of and it will pass on to the Customer the benefit of any guarantee or indemnities given to it in respect thereof by its supplier.
8.3 Save as provided in paragraph 8.1 and paragraph 8.5 hereof:-
8.3.1 All conditions and warranties express or implied, as to the quality of the service to be provided by the Company or the quality or fitness for any purpose of any materials used by the Company are hereby expressly excluded to the fullest extent permitted by law; and
8.3.2 The Company shall be under no liability for any loss or damage (whether direct, indirect or consequential) howsoever arising which may be suffered by the Customer including but not limited to loss suffered by the Customer as a result of fraud and or hacking of the Equipment by any third parties and the Customer herein warrants that they have taken out sufficient cover to protect themselves against any such losses. To the extent that the Customer has failed to take out or utilise any such protection they shall indemnify the Company in full and at all times against any and all losses suffered or incurred by the Company as a result of the Equipment being subject to fraud and or hacking.
8.4 The Customer acknowledges that the Annual Charge and other charges payable by it are calculated on the basis that the above Conditions will apply and that it has been put on notice by the Company that it should insure itself against losses in respect of which the Company’s liability is excluded under this agreement.
8.5 The foregoing provisions of this condition shall not apply to services provided to persons who deal as consumers (as that expression is so defined in Section 12 of the Unfair Contract Terms Act 1977) unless the contract is an international supply contract (as described in Section 26 of that Act).
9. Default and termination
9.1 The Company shall, without prejudice to any other rights contained within the Contract, have the right at any time by giving notice in writing to the Customer to terminate this agreement forthwith with immediate effect in any of the following events:-
9.1.1 If the Customer commits a breach of any of the terms and conditions of this Agreement and fails to remedy the same within 10 days of written notice requiring to do so.
9.1.2 If the Customer being a Company enters into liquidation (whether compulsory or voluntary) or Administration or Administrative Receivership or being an individual is made the subject of a bankruptcy order or in either case compounds with its creditors or has a Receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt or in either case suffers any analogous procedure under the law of any jurisdiction.
10.1 This Contract is personal to the Customer and the Customer may not assign or transfer any of its rights under the Contract.
10.2 No failure or delay by the Company to exercise any right or remedy provided under this Contract shall constitute a waiver of that right.
10.3 No person other than a party to this Contract shall have any rights to enforce any term or provision of the same
10.4 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable, including deletion.
10.5 This contract is governed by the Laws of England and the English Courts (to the jurisdiction of which the Customer hereby irrevocably submits) shall have the exclusive jurisdiction to resolve any disputes arising out of it.
Class of Service – In response to the Customer’s request the Company shall at the earliest practical opportunity instruct a maintenance engineer to attend to, inspect and/or repair the Equipment during the company’s normal working hours.
The Company will use reasonable endeavours to ensure that all faults will receive attention within 4 hours, and to repair non-intermittent faults in the Equipment within 2 working days.