1.1. This Contract will come into effect on the Commencement Date and will continue pursuant to the provisions of clause 1.2, unless terminated earlier pursuant to the provisions contained in this Contract.
1.2. Thereafter this Contract shall continue in force unless and until terminated by either party giving no less than the required period of prior written notice (as specified on the Order Form), such notice not to expire before the end of the Initial Term.
1.3. Where termination of the contract, or part thereof, falls within the Initial Term, cancellation of User Licences, and Equipment Rental charges, where the Equipment is to be retained by You, will be subject to an Early Termination Fee (ETF).
2.1. We will use reasonable endeavours to supply the Equipment in accordance with this Contract and We will use reasonable endeavours to supply the Service in accordance with this Contract or as stated in this Contract using reasonable skill and care.
2.2. You accept that the Service cannot be provided fault free and We do not warrant error free or uninterrupted use of the Service, and that We may not be able to prevent interference of the Service with existing telecommunications services or the functioning of computers, software Your End User Customer has installed, or other electronic equipment, and that We do not undertake to do so.
2.3. We will use reasonable endeavours to provide the Service for use by Your End User Customer from the Proposed Start Date, unless otherwise specifically agreed by the parties in writing or unless We are unable to do so as the result of a failure by You or Your End User Customer to fulfil Your obligations under this Contract or by any delay caused by a third party (including, without limitation, other Network Operators).
2.4. If, for any reason and prior to an agreed Service Start Date or implementation of the relevant Change Request, You, request Us to make any changes to the Service We have agreed to supply to You for use by Your End User Customer, You accept that the provision of such requested changes to the Service is subject to Our agreement and such amendment to the Proposed Start Date, the Charges and/or this Contract, as required by Us, is at Our sole discretion.
2.5. Where We determine that a survey is necessary, You acknowledge and agree that provision of the Service may be subject to survey. Where a survey is carried out, We shall be entitled to amend the technical aspects of the Service and/or the relevant Charges, as appropriate, following completion of any survey. In the event that the survey reveals that the provision of a Service to Your End User Customer at a Site will be degraded to such an extent that We would be unable to comply with this Contract, We will be entitled to terminate the Contract (in whole or in part) without any liability to You. In the event of termination of this Contract, for any reason, following completion of the survey but prior to the relevant Proposed Start Date, You will refund to Us (at Our request) any costs incurred, including, without limitation, staff costs, equipment costs and the cost of carrying out the survey.
2.6. Where we have determined a survey is not necessary and You have completed a Customer Network Compliance Statement for a given Site, You warrant that the network infrastructure at that Site is configured to the minimum requirements set out in the Customer Network Compliance Statement to enable Us to supply the Services in accordance with the Service Standards. You warrant that the information You have supplied in the Customer Network Compliance Statement is accurate and correct. In addition to the provisions set out in the section of the Customer Network Compliance Statement named ‘declaration’, in the event that We determine beyond all reasonable doubt that the Services have been affected due to the Customer Network not meeting the requirements set out in the Customer Network Compliance Statement, to such an extent that We would be unable to comply with this Contract, We will be entitled to terminate the Contract (in whole or in part) without any liability to You. In the event of termination of this Contract, for any reason, following completion of the survey but prior to the relevant Proposed Start Date, You will refund to Us (at Our request) any costs incurred, including, without limitation, staff costs, equipment costs and the cost of carrying out the survey.
2.7. You accept that there may be some technical limitations with the Services or within the Network which may not become apparent until after We commence supplying the Service to You for use by Your End User Customer. To the extent that such limitations would result in the Services being degraded to such an extent that We would be unable to comply with this Contract, We will be entitled to terminate the Contract (in whole or in part) without any liability to You upon providing You with 30 days’ written notice. We do not guarantee the continuing availability of any particular service and You acknowledge that We may be dependent upon third parties (including, without limitation, other Network Operators, or Service Providers) when providing the Service. Notwithstanding any other provisions of this Contract, but subject to clause 15.1, We will not be liable to You, or Your End User Customer, in contract, tort (including negligence) or otherwise for the actions of any third party (including, without limitation, acts or omissions of the Network Operators or Service Providers) that affect or otherwise impact upon the provision of the Service.
2.8. In addition to this Contract, We may provide a Technical Proposal Document (“TPD”) to You, which sets out a detailed description of the Service to be provided to You for use by Your End User Customer pursuant to this Contract. In such circumstances, and without prejudice to the provisions of clause 2.1, We shall use Our reasonable endeavours to provide the Service in accordance with the TPD. Further, You accept and agree to be bound by any limitations or assumptions that We may make in respect of the Service as detailed in the TPD and You accept responsibility in the event that the Services do not meet Your End User Customer requirements as a consequence.
2.9. You confirm that You understand, and have made Your End User Customer aware that the Service:
(a) may differ from Your existing fixed-line telephony or PBX service, including (without limitation) the Service constraints detailed in the Service Standard;
(b) may sometime be unavailable as a result of matters beyond Our control, such as local power disruptions, third party connectivity outages, etc. You acknowledge and have made Your End User Customer aware that on occasion, parts or ALL of the functions of the Service may be unavailable, including access to Emergency Call Services.
(c) may not offer Your End User Customer the ability to transfer (port) Their existing number to the Service, or on termination of the Service to transfer (port) Your number an alternative service if Your Service ends, depending on the type of new service deployed.
2.10. If this is a renewal contract, We will review the subscribed user licence volumes and types against the Pod UC platform on the date of issue of the renewal contract. The user licence [information] may differ from the Initial Term contract due to changes to Your Service requested by You during the Initial Term.
3.1. Where You have already signed an agreement with Us to carry out voice readiness testing at Your End User Customer Site in
relation to the installation of the Services (as indicated in the Order Form);
(a) We waive our right to receive any separate charges under our agreement with you for carrying out the testing; and
(b) You or the End User will be responsible for carrying out any preparatory works or measures recommended in any report we have issued to You with the results of the testing.
3.2. In order to enable Us to fulfil Our obligations under this Contract You will at Your or Your End User Customer’s own cost:
(a) provide any necessary power supply for the use and operation of the Equipment and Services at the Site(s) for the duration of the Contract;
(b) provide site and building plans (to include full details of all internal cabling runs) at each of the Site(s) as requested by Us;
(c) provide Us with full details of all other services in the vicinity of the proposed works;
(d) ensure that any unique or special conditions applicable to the Site(s) that may affect the survey or the installation and maintenance of any Equipment are made known to Us in writing prior to Us commencing the survey;
(e) prepare the Site(s) in accordance with any instructions notified in advance by Us and provide Us with such assistance as We may reasonably require for the purposes of carrying out the installation, connection and maintenance of any Equipment;
(f) ensure that any router equipment, or other LAN infrastructure to which the Equipment is to be connected is available for use upon request by Us and is not moved or modified without notification in writing to Us;
(g) provide a suitable continuous supply of electricity at such points as are necessary for installation and operation of the Equipment including such fusible cut- outs and other protective devices as We may reasonably require;
(h) ensure a safe working environment for Our employees and nominated third parties whilst at the Site(s);
(i) provide Us with information regarding any changes to the Site plans, regulations or any other conditions affecting the Site(s) during the term of the Contract, which may impact the provision of the Services to You for use by Your End User Customer;
(j) provide Us or Our nominated third party with access to the Site(s), during normal working hours, and such facilities as they may reasonably require in order to perform the survey, install any Equipment, provide the Services and otherwise perform Our obligations under the Contract; and
3.3. If Your End User Customer occupy and own the Site(s) in which You or They are taking Services, by signing this Contract You, on behalf of Your End User Customer, give Us Your written permission pursuant to the Code to install and keep the Equipment on the Site(s).
3.4. We shall inform You immediately upon becoming aware of Our inability to meet any dates or times agreed with You. If during the course of the provision of the Services, We are impeded or delayed by any act or omission of You (or Your employees, subcontractors agents, or Your End User Customer which has a direct impact on Our ability to provide the Services, including the requirements of clause 3.4, You shall grant to Us in writing an extension of time which shall be at least equal to the period of any such delay and shall reimburse all additional expenses reasonably and necessarily incurred by Us to the extent that they arise directly out of such impedance or delay.
3.5. You or Your End User Customer will advise Us in writing of all Health and Safety at Work rules and regulations of all dangerous objects and substances and any other reasonable security requirements applicable at the Site(s) and We will use Our reasonable efforts to observe and ensure that Our employees, sub-contractors, nominated third parties and authorised representatives observe Your End User Customer’s reasonable regulations, as advised to Us pursuant to this clause 3.5, whilst at the Site(s), provided that We shall not be liable to You, (or Your End User Customer) if, as a result of conforming with such regulations, We are in breach of Our obligations under this Contract.
3.6. You shall ensure in the interests of health and safety that Our employees or nominated third parties, whilst at the Site(s) for the purposes of this Contract, are at all times accompanied by a member of Your End User Customer’s staff familiar with the Site(s) and safety procedures;
3.7. We will not be liable to You where We are unable to carry out Our obligations under the Contract as a result of a breach by You, or Your End User Customer of the provisions of this Contract.
3.8. You and Your End User Customer shall not move, add to, modify or interfere with or attempt to repair, or cause to be repaired or serviced by any person other than Us or Our third party provider, any of Our Equipment (for the avoidance of doubt this includes any router provided at Your Site, or any telephone or accessories, rented by You under this contract.
3.9. You and Your End User Customer will at all times ensure that the Equipment is kept in a good and proper state of repair, is secure whilst on the relevant Site and maintain the necessary environmental and other conditions for the Equipment as may be specified by Us from time to time.
3.10. We will not be liable to You, or Your End User Customer:
(a) where We are unable to carry out any or all of Our obligations under this Contract as a result of: (i) a breach by You, or Your End User Customer of any of the provisions of this Contract; or (ii) Your negligence; or (iii) faults with, defects in, or problems with Customer Equipment; or (iv) faults with, defects in, or problems with Your local area, or wide area networks, software or content; or
(b) where any other part of this Contract states that We are not liable.
3.11. We will usually carry out installation or deployment of the Services during Our normal working hours but may agree, exceptionally, to carry out work outside Our usual working hours subject to Your agreement to pay an Additional Charge.
3.12. Further, We may raise an Additional Charge if:
(a) Our approved engineer is called out because of faults that are found upon examination not to be faults with Our Equipment (including without limitation, power supply fluctuations or faults on another network system or apparatus to which Our Equipment is connected) or the Network; or
(b) We arrange an appointment for Our approved engineer to attend the Site(s) but You or Your End User Customer (i) fail to provide access to the Site(s), or (ii) cancel the appointment for any reason; or
(c) if You or Your End User Customer report the Equipment faulty and We consider (acting reasonably) that it is not, or the fault is not covered by Our warranty with the relevant third party manufacturer, or the equipment has been damaged in any way.
3.13. You may permit the End User Customer (and only the End User Customer) to use the Services provided that You shall be
responsible, and remain responsible, for ensuring that:
(a) the End User Customer complies with Your obligations under this Contract (so far as applicable) including (without limitation) where You are required to ensure, procure, or otherwise require that the End User Customer complies with a particular clause in this Contract or performs, or refrains from performing, a certain act. Any breach of this Contract arising from an act or omission of the End User Customer shall be deemed to be a breach of this Contract arising from an act or omission of You; and
(b) You maintain a signed contract with the End User Customer and (without prejudice to Your liability to Us for, and Our rights and remedies in respect of, any breach of, or failure by You to comply with, any of the terms of this Contract) You must ensure that the terms of Your contract with the End User Customer are not inconsistent with, or contradictory to, the terms of this Contract (so far as applicable).
3.14. Our obligations under this Contract shall be solely to You and You agree to fully indemnify Us, defend Us and hold Us harmless against any and all liabilities, claims, losses and costs (including legal costs) arising from any and all claims by any third party or the End User Customer in connection with the Services regardless of cause of action.
3.15. You shall be liable to Us for any acts and omissions of third parties or the End User Customer relating to the use of the Services.
3.16. Nothing in this Contract shall require Us to provide any services directly to the End User Customer and You will, and will remain, solely responsible to the End User for the provision of services to the End User Customer in connection with this Contract.
3.17. You will comply with, and You will do all things required by, any and all Legislation and OFCOM requirements from time to time in connection with this Contract and the provision of the Service and You will not put Us in breach of any Legislation or OFCOM requirements.
3.18. You will not, and You will ensure that the End User Customer will not, resell or provide the Service to any other reseller, service provider or distributor or any other third party.
4.1. The Services to be provided to You, for use by Your End User Customer, pursuant to this Contract shall include the provision of Our Equipment as detailed in the Order Form.
4.2. You or Your End User Customer will ensure that You comply with any security and firewall processes and procedures we request or advise to enable Us to commence and maintain provision of the Service and give Us such assistance as We reasonably require in relation thereto.
4.3. Company Administrators, and Company Emergency Contacts for the Service You confirm that the information supplied by You in connection with this Contract, as part of a Customer Information File (CIF) and/or a Change Request is accurate and has been completed by You or Your End User Customer’s staff who have knowledge of Their requirements and is sufficient to meet Your requirements. In the event that any changes are required to the information You, have supplied to Us in this Contract, and/or the CRF, You agree that You shall submit such change in accordance with the Change Request process.
4.4. The terms of this Contract only cover the Service for Sites located within the UK.
4.5. In order for Us to provide the Services under this Contract You are required, at Your own cost, to:
(a) provide a network diagram for Your Site(s);
(b) provide a network component inventory of each of Your End User Customer’s Sites; and
(c) If. You or Your End User Customer shall prior to the Service Start Date or implementation of the relevant Change Request nominate (at no cost to Us) sufficient representatives who have appropriate experience and skill (the “Customer Staff”) as We shall reasonably require to enable Us to provide the Service and ensure that the Customer Staff are available at any Sites or remote location(s) if requested by Us, and who are authorised to request Change Requests and notify Us of any change in the authorised representatives prior to such changes coming into effect.
4.6. You acknowledge and agree and have made Your end User customer aware that the Service does not provide direct connectivity to the Internet.
4.7. You acknowledge, and have made Your end User customer aware that use of the Pod UC Service, which is a Voice over IP (VoIP) protocol based service, like other network-based services, carries certain security risks to the systems and networks owned or used by You, or Your End User Customer, Us and/or any third party including, but not limited to: misuse; unauthorised access; alterations; theft; destruction; corruption; and attacks (known as “Occurrences”). You or Your End User Customer shall, at Your own, or Their expense, take security measures including but not limited to the use of those of the following methods You or They consider necessary: session border controllers, firewalls, passwords, access restrictions, encryption, policies, and physical access restrictions to protect from Occurrences all VoIP traffic, equipment, software, data and systems and/or the Service, located on Your or Their premises or otherwise in Your control and used in connection with VoIP, whether owned by You, Your End User Customer, Us and/or Our subcontractors. Neither party shall be liable to the other, in contract, tort (including negligence), or on any other basis, for any loss resulting from any Occurrences or us of such VoIP traffic, facilities or other equipment, software, data and systems. You, or Your End User Customer are responsible for all security measures You, or Your End User Customer, consider necessary, even if You use a third party or Us to configure and implement them.
5.1. The Service requires an underlying access network (connectivity) solution at each Site to operate. This access network must comply with the minimum requirements set out in the Customer Network Compliance Statement (as stated in clause 2.6). You or Your End User Customer must procure this access network either from Us under a separate contract or from a third-party service provider
5.2. If We need to use Our Equipment to provide the Service, We will undertake any necessary surveys and installation of Our Equipment at the Site.
5.3. Following deployment of the User Licences, or where applicable, installation of the Equipment We will carry out Our standard test procedures to ensure that the Service is ready for operation by Your End User Customer. Upon successful completion of such tests We will provide You with an Order Completion notification.
5.4. Where with Our written agreement You are carrying out the installation of any part of the Equipment or Service, You acknowledge and agree that You will be solely responsible for that installation and that You will carry out such installation with reasonable skill and care and in a proper and good workmanlike, in accordance with the relevant standards, any specific installation requirements advised to you, and any manufacturer’s installation documentation… You further acknowledge and agree that (without prejudice to Our other rights and remedies under this Contract or otherwise) We will not be liable to You if We are unable to carry out any or all of Our obligations under this Contract as a result of any defect, fault or error in such installation.
6.1. If We need to use Our Equipment to provide the Service, We will supply Our Equipment in accordance with all relevant legislative requirements and will comply at all times with the relevant standard.
6.2. Title to Our Equipment will remain with Us at all times and nothing will operate to transfer ownership of or rights in Our Equipment to You, or Your End User Customer. You, or Your End User Customer shall not remove or obscure any identification mark(s) affixed to the same.
6.3. You agree and represent to Us that Your End User Customer shall:
(a) take all reasonable and proper care of Our Equipment;
(b) comply with all reasonable instructions communicated by Us to You for the safe and proper use of Our Equipment and the Service from time to time;
(c) provide such information in respect of the Equipment as We may reasonably require;
(d) not operate Our Equipment after it has become defective, damaged or in a dangerous state.
6.4. You and Your End User Customer will not move, add to, modify or interfere with or attempt to repair, or cause to be repaired or serviced by any person any of Our Equipment other than by Us or Our nominated third party. You and Your End User Customer will only attach to the Service such other equipment as approved by Us and as appears on the Authorised Equipment List for the Service
6.5. You, and Your End User Customer will at all times ensure that the Equipment is kept in a good and proper state of repair, is secure whilst on the Site(s) and maintain the necessary environmental and other conditions for any Equipment as may be specified by Us from time to time.
6.6. Subject to such recall not significantly affecting the provision of the Service (except where this Contract has already been terminated), We may recall any or all of Our Equipment upon 7 days’ notice. You will return to Us or make available for collection (as directed by Us) such Equipment.
6.7. Risk in Our Equipment will pass to You immediately on delivery.
6.8. You or Your End User Customer will for the duration of the Contract (without prejudice to Your liability to Us), at Your own, or Your End User Customer’s expense, effect and maintain insurance in relation to Our Equipment with a reputable insurance company and such insurance will be in an amount equal to the full new replacement value of Our Equipment (including all taxes duties and other payments incidental to any replacements) and on fully comprehensive terms (including third party liability) against loss or damage from any cause, including, but without limitation, all risk of third party liability arising out of the presence or use of Our Equipment.
6.9. You and Your End User Customer will allow Our employees and nominated third parties access to Our Equipment at all reasonable times upon reasonable notice to inspect, test, adjust, maintain, modify, repair or replace the same. You and Your End User Customer will be responsible for providing safe, proper and adequate access for such purposes.
6.10. We reserve the right to recover all or any of Our Equipment upon 7 days’ notice, and You shall return to Us or make available for collection (as directed by Us) such of Our Equipment as soon as reasonably practicable following receipt of such notice. You shall be responsible for all and any costs that We may incur in relation to the collection and/or recovery of Our Equipment unless We are in breach of this Contract and/or You have terminated this Contract pursuant to clause 15.1.
6.11. On termination of this Contract, if You or Your End User customer fail to allow Us to collect Our Equipment You will be immediately
liable to Us for;
(a) a sum equivalent to the full replacement cost of Our Equipment (if the Equipment is not subsequently returned to us); or
(b) the hire charges, as set by Us from time to time, for the unreturned unit of Our Equipment (up until the time the Equipment is subsequently returned to us);.
6.12. You will be liable for any loss or damage to Our Equipment (reasonable wear and tear excepted), subject to the provisions of clause 15.7, except where such loss or damage is caused by Us or anyone acting on Our behalf.
6.13. We shall not be liable for any failure in the Service, including any obligations to meet any Service Standard, caused by any unauthorised use of the Equipment by You, Your End User Customer or by a third party on Your or Your End User Customer’s behalf.
6.14. We will be entitled to:
(a) modify and/or replace any of Our Equipment or modify the Service from time to time if We consider such modification and/or replacement reasonably necessary for the continued provision of the Service; and
(b) suspend the Services for operational reasons, (Planned Engineering Works) and We shall use Our reasonable endeavours to minimise the period of interruption and mitigate the impact of the interruption on the provision of the Services. We shall notify You at least ten working days in advance of any suspension (Planned Engineering Works); and
(c) suspend the Services in the case of Emergency Engineering works and, wherever possible, use Our reasonable endeavours to minimise the period of interruption.
7.1. You and Your End User Customer will comply with the Acts and only use Customer Equipment which conforms to the standard in force from time to time as stipulated by the Acts, any law or regulation, or as required by Us and detailed in the Authorised Equipment List for connection to the Service. We may request disconnection of any Customer Equipment which does not conform to such standard, approval or is detailed in the Authorised Equipment List, or which, in Our reasonable opinion, may cause death, personal injury or damage to property or impair the quality of the Service or any other services provided by Us, including services to third parties. Additionally, we reserve the right to suspend the Service to the affected individual user or users until such time we have confirmed and agreed the offending Equipment has been removed. You will refund to Us any costs We incur as a consequence of such disconnection.
7.2. You and Your End User Customer shall make any such changes and modifications to the Customer Equipment as We may determine necessary in order to provide the Services, subject to Your or Your End User Customer’s obligations pursuant to the Acts.
7.3. You and Your End User Customer shall, if so requested by Us, provide such information in respect of the Customer Equipment as We may reasonably require for the purposes of providing the Services.
7.4. You warrant that Your End User’s Customer Equipment and network is fit for purpose and compatible with Our Equipment and Our Service.
8.1. You and Your End User Customer will, and ensure that any Users;
(a) will, use the Service only in accordance with Our instructions as may be notified in writing from time to time and in accordance with the relevant provisions of the Acts and any other relevant Legislation; and
(b) will not use the Service to commit an offence under the Acts or any other relevant Legislation.
8.2. You and Your End User Customer will not use or permit any User or third party to use the Service:
(a) in an illegal manner or for an illegal purpose;
(b) in connection with any criminal or public nuisance offence;
(c) to knowingly or recklessly transmit any material which contains software viruses or any computer codes, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware; or
(d) in any way in connection with, any message or communication which is offensive, abusive, indecent, obscene or menacing or which does, or is intended to, cause annoyance, inconvenience nuisance or worry or which is fraudulent, defamatory, an act of treason or intended to be a hoax call to any emergency services or which (in Our reasonable opinion) brings Our name into disrepute or in any way which intentionally or recklessly causes damage or disruption to the Service or the Network or a third party network, or use the Service in a manner which constitutes a violation or infringement of the rights of any other person.
8.3. Both parties agree to fully co-operate with the Police and any other relevant authorities (including but not limited to the Inland Revenue, the Trading Standards Office and/or OFCOM and any successors from time to time) in connection with any misuse or suspected misuse of the Service and You consent to Us co- operating with any other telecommunications operators in connection with any fraudulent activity related to or connected with the Service and agree that We will be entitled to divulge the name and address and account information relating to You to such third parties.
8.4. You will, and You will ensure that any Users when using the Service will, use reasonable endeavours to avoid causing congestion on Our Network and do not misuse Our Network in any way. Where We notify You of any such congestion or misuse, then You shall immediately take all steps to prevent such congestion or misuse. If You do not promptly take such steps then We shall be entitled to take all reasonable steps to protect Our Network including the suspension and/or termination of the Services or any part of the Services.
8.5. We will not be liable to You where We are unable to carry out Our obligations under this Contract as a result of a breach by You of the provisions of this Contract.
8.6. We will use reasonable endeavours to assist You with identifying any fraudulent activity connected with use of the Services. However, You acknowledge and agree that You are responsible for maintaining the security of the Customer equipment, including applying appropriate Call Barring levels to all Users, commensurate with the needs of your business, via the Partner Portal.
9.1. Any intellectual property associated with the Service and/or documentation or Software, or anything else provided by Us or Our
sub-contractors in connection with the Services, will remain Our property or the property of Our licensors. Without prejudice to
clause 9 in respect of Software and associated documentation:
(a) We hereby grant You a non-exclusive, non- sublicensable, non-transferrable, revocable right to use such intellectual property and/or documentation for the purpose of accessing the Service only;
(b) You will not make any modifications to the Service and/or documentation;
(c) If You modify the Service and/or documentation in any way We will be entitled to terminate the Contract with immediate effect; and
(d) You will indemnify Us and keep Us indemnified against any costs (including, without limitation, any legal costs or disbursements on an indemnity basis), losses, damages or liabilities We may incur due to You amending or in any way altering the Services and/or documentation.
9.2. Where Software is installed on the Equipment or is to be used in conjunction with the Equipment. You may only resell and provide the Service solely to the End User Customer and You may only sub-licence the Software or associated documentation solely to the End User on a non-exclusive, non-transferable and non-sub-licensable, revocable basis and as a limited right for the End User Customer to use the Software and associated documentation during the term of this Contract and only for the purpose of the End User Customer accessing the Service. You will not, and You will ensure that the End User Customer will not, resell, transfer or provide the Software or associated documentation or sublicense the Software or associated documentation to any other reseller, service provider or distributor or any other third party.
9.3. You and Your End User Customer shall only use such software in accordance with Our instructions or the items of equipment that are expressly specified to be operated by or in conjunction with such specified software.
9.4. Neither You nor Your End User Customer shall reverse engineer, disassemble or decompile the Software except and only to the extent that such activity is expressly permitted by law.
9.5. Neither You nor Your End User Customer shall without Our permission copy the Software or any part thereof, including any accompanying printed materials, save that You may make a single back-up copy of Our Software for archival purposes.
9.6. Neither You nor Your End User Customer nor any Users will make any modifications to the Software or documentation, unless You have received prior written consent from Us or the licensor to do so.
9.7. You will indemnify and keep Us indemnified against any costs, losses, damages, or liabilities We may incur to the extent that they are due to You or any of Your End User Customer’s User carrying out unauthorised amendments or alterations to the Software.
9.8. You and Your End User Customers shall not permit any third party to use the Software except for the purposes of this Contract and You shall remain responsible for any liability arising under this Contract as a result of the Software being used by third parties.
9.9. If You are in breach of any of Your obligations under this Contract or if any unauthorised use is made of the Software and such use is due to Your or Your End User Customer’s act, negligence or default then, without prejudice to Our other rights and remedies, We may terminate this Contract forthwith by notice to You.
9.10. If You or Your End User Customer become aware of any breach of third-party rights, pursuant to the supply of the Services, the
possession or use of any equipment or products provided to You for re-sale to Your End User Customer (including, without
limitation, the Equipment) as part of the Services or in any way connected to this Contract, You agree that You shall:
(a) give Us notice of any such claim within 14 days of the date on which You are first given notice that the claim has been made;
(b) Allow Us or Our licensors to have sole conduct of the defence or settlement of any such claim; and
(c) You agree that You and Your End User Customer will provide Us with all reasonable assistance in conducting the defence or settlement of any such claim and shall make no prejudicial statement or admission of liability.
9.11. For the avoidance of doubt, We shall have the right, at Our sole option and expense, to:
(a) procure the right for You and Your End User Customer, to continue using the items so that such use is no longer infringing;
(b) modify the Services and/or infringing items so that they become non-infringing without a material diminution in their performance or specification so that the provision of the Services is not materially adversely affected and extend the provisions of this clause 9 thereto; or
(c) replace the infringing items with any reasonable equivalent non-infringing substitute, provided there is no material diminution in their performance or specification and the provision of the Services is not materially affected.
9.12. Upon termination of this Contract You shall promptly return or, if requested, destroy all copies of the Software held by You or Your End User Customers that is in a tangible form, including Software stored on electronic or optical storage devices, whether in digital form or otherwise.
9.13. Where We require access to or use of any Customer Equipment, or any software or associated documentation in connection with the Customer Equipment, You and Your End User Customer hereby grant Us a non-exclusive, transferable, sub licensable, irrevocable right to use such software, documentation and Customer Equipment for the duration of this Contract for the purposes of providing the Services to You for use by Your End User Customers. You warrant that You are entitled to grant Us such rights and You further warrant that Our use of such software, documentation and Customer Equipment shall not infringe the intellectual property rights of any third party.
10.1. Any Service Numbers allocated to You by Us (if any) do not belong to You. You accept that neither You nor Your End User Customers do not acquire any intellectual property rights whatsoever in such telephone numbers and neither You nor Your End User Customers must make any attempt to apply for registration of the same as a trademark, service mark, or domain name whether on its own or in conjunction with some other words or trading style.
10.2. Neither You nor Your End User Customers are entitled to sell or agree to transfer to a third party any Service Number allocated to You or Your End User Customers by Us.
10.3. You acknowledge that there are restrictions in place for the Service regarding number portability for certain number ranges.
10.4. If You or Your End User Customers have not initiated use of any of the Service Numbers within 6 months of the Service Start Date, We may recall such Service Numbers from You, or Your End User Customers and We will be entitled to use such Service Numbers for third parties.
10.5. We shall be entitled, for commercial, operational or technical reasons or in order to comply with the requirement of any competent authority to withdraw or change any Service Numbers or code or group of Service Numbers or codes allocated or provisionally allocated to You, or Your End User Customers. Where a Service Number is already in operational use by You, or Your End User Customers We shall use Our reasonable endeavours to give You reasonable prior notice. We shall not be liable for any costs, inconvenience or other losses (including without limitation marketing and stationery costs) incurred by You as a result of any change or withdrawal as described in this clause 10.5.
10.6. If at Your request a specific Service Number is allocated to You, or Your End User Customers You shall be responsible for all necessary investigations and inquiries as to the legitimacy or use of such numbers and We shall have no liability whatsoever with respect to the number chosen and its use by You or Your End User Customers.
10.7. If You, or Your End User Customer are allocated a Service Number which falls within a range of numbers classified from time to time by OFCOM (or any other competent authority) as being for the provision of a particular type of service, then You and Your End User Customer must ensure that any service provided by Them on that number conforms at all times with the type allocated to that number range. In the event You lose Your right to use such number, You must inform Us immediately and We will terminate provision of such Service Number to Your End User Customer.
10.8. You, acknowledge, and agree to make Your End User Customer aware that:
(a) We may bar access to certain types of number ranges if Your End User Customer is in breach of this Contract (or if We reasonably suspect Your End User Customer is in breach of this Contract) or for commercial or regulatory reasons;
(b) the Service does not support certain outgoing call types, incoming calls, SMS and text messaging services, as further detailed in the Service Standard; and
(c) If Your End User Customer makes an abnormally high number of calls to an international destination, then We may instigate network management control measures in order to prevent any security risk to the Network. In such circumstances We will notify You of the action We have taken as soon as reasonably practicable.
10.9. We cannot guarantee that are able to transfer (import) Your existing number(s) to the from another telecommunications operator or where there are national code or number changes and We shall not be liable for any loss or damage You, or Your End User Customer may incur due to Your End User Customer’s inability to transfer (import) any such number.
10.10. You shall supply Us with such information regarding Your End User Customer’s use of any Service Numbers We supply to You pursuant to this Contract, that may be reasonably requested by Us.
11.1. You acknowledge and have made Your End User Customer aware that the calls made using the Service may not be presented with a Calling Line Identity or “CLI”.
12.1. You confirm that You understand, and have made Your End User Customer aware that the Service will connect Your End User Customer’s Users to the public Emergency Call Services but Your Calling Line ID (CLI) may not provide their correct physical location details to the Emergency Call Services operator, especially if the User is a remote or mobile User.
12.2. You, on behalf of Your End User Customer, shall provide Us with all relevant information that We may request from You, in such format as We may request, to enable Us to provide Site address details to the Emergency Services database. Further, You, on behalf of Your End User Customer, agree to notify Us immediately, in the event of any change to the information requested from You, on behalf of Your End User Customer, pursuant to this clause 12.2.
12.3. You also confirm that it is Your and Your End User Customer’s sole responsibility to make available to all Users of the Service alternative means of accessing Emergency Call Services in circumstances where these are unavailable through the Service, and to inform or otherwise make all Users aware of the Service purchased by You, on behalf of Your End User Customer, (whether they gain access to the Service with Your permission or not) of the possible limitations of the Service.
12.4. You acknowledge and agree that:
(a) You, or Your End User Customer shall ensure the Customer Equipment used to make the Emergency Call Services is connected to a mains power supply;
(b) You, or Your End User Customer will inform Your Users that they must provide or confirm Their location details, as may be requested by the Emergency Call Services operator; and
(c) Any calls made using the Emergency Call Services may not receive the same priority as an emergency call made using a mobile or telephony network.
12.5. We accept no responsibility whatsoever in the event that a call is made using the Service or an unsuccessful attempt is made to make a call using the Service to the Emergency Call Services and You will indemnify and keep Us indemnified from and against all costs, (including without limitation, any legal costs or disbursements on an indemnity basis), expenses, damages, liabilities, losses, actions, suffered by Us, directly or indirectly and whether wholly or in part resulting from failure by You or Your End User Customer to comply with this clause 12.
12.6. This Emergency Calls Services shall only be available for access where the Emergency Call originates from a calling party located in the UK having a telephone number conforming to the National Telephone Numbering Plan, and being either from a geographic number range or from non-geographic number ranges 055, 056, 03 or 08. The appropriate “ii” digits will be inserted by Us to identify the call as VoIP originating.
12.7. We shall give You not less than 6 weeks written notice of any material change to the Emergency Call Services, or such lesser period as may be agreed with You such agreement not to be unreasonably withheld.
12.8. You and Your End User Customer shall provide Us with all relevant information that We may request from You, in such format as We may request, to enable Us to provide Your End User Customer with Emergency Call Services. Further You, on behalf of Your End User Customer, agree to notify Us immediately, in the event of any change to the information requested from You pursuant to this clause 12.8.
13.1. Following provision of the Service, You shall be able to request changes to the Service, including the cessation and/or amendment of User Licences, or optional Site or User ‘add-on’ licences, additional Equipment or accessories, additional Call Package(s), new number allocations or Number transfers (ports) by means of “Change Request” or Additional Services Order (ASO). which shall be accepted or rejected by Us in accordance with this clause 13 (a “Change Request”).
13.2. We shall either accept or reject Your request as soon as reasonably possible following Our receipt of Your Change Request. There may be limitations with the Services that may require Us to reject Your Change Request. In such circumstances, We may suggest a different change that We are able to supply to You, for use by Your End User Customers. Once We have reached agreement regarding the Change Request, both parties will agree such Change Request in writing and We shall make the technical change available to Your End User Customer, subject to the terms of this Contract.
13.3. In respect of a change to a Call Package or where the Change Request relates to changes to or additions of Service Numbers, the Change Request shall only be binding on both parties once We confirm the Change Request in writing (including, for the avoidance of doubt, by email).
13.4. In respect of any other changes, such as the addition of further Users or new Sites and associated changes and additions, such Change Requests shall be binding once both parties have signed Our Additional Service Order to bring into effect such a Change Request.
13.5. Following Our agreement to supply the Change Request, We shall calculate the applicable Charges on a pro-rata basis from the date of implementation of the Change Request.
13.6. You will not be able to make a Change Request which has the effect of reducing the Charges payable for the Services, during the Initial Term, without incurring Early Termination Fees.
13.7. You accept that in respect of some technical changes, You may be required to complete a Customer Information File (CIF). If so requested, You agree that You will complete the Customer Information File (CIF) and agree any variations thereto with Us, or provide any other information that may be reasonably required by Us or Our third party supplier. If Your requirements change for any reason, You will inform Us immediately. Any changes to the Customer Information File (CIF) must be with Our written agreement. The Customer Information File (CIF) should be completed by Your nominated representative(s) who are authorised to request Change Requests and notify Us of any change in the authorised representatives prior to such changes coming into effect.
13.8. Any changes made under this clause 13 shall form part of, and shall be subject to and governed by, the terms of this Contract.
13.9. A Change Request in respect of adding additional users or new Sites may have its own Proposed Start Date for the purposes of this Contract. Otherwise, any other Change Request shall not have a Proposed Start Date for the purposes of this Contract.
13.10. No Change Request, including the addition of further Sites, shall affect the Initial Term of this Contract (unless the parties agree otherwise in writing) and the changes made to this Contract shall be subject to and shall be valid for the Initial Term and the notice period thereafter set out in clause 1.1.
14.1. You will pay the Charges to Us in accordance with the Order Form. The Charges will be subject to change in accordance with this clause 14. You will pay the Charges at the times and frequencies set out in this clause 14.
14.2. You will pay the Charges as follows:
(a) Rental Charges in accordance with the billing period as specified on Part 1 of the Contract. If a billing period is not specified then such Rental Charges shall be payable monthly in advance.
(b) The Connection Charges, any one-off number porting charges, any one off charges for Service Numbers (including DDI) and number ranges, and any other initial or one-off charges, shall be payable upon the relevant Service Start Date or the implementation of the relevant Change Request or otherwise on demand. We reserve the right to send an invoice to You for the one-off Charges at any time following the Commencement Date.
(c) Call Package Charges shall be payable monthly in advance. If calls are made in excess of the Call Package and/or if calls are made for which the Call Package does not apply, You will pay the standard Call Charges for all such calls in arrears. All Call Charges shall be payable from the Service Start Date or the implementation of the relevant Change Request or as set out in clause 13 and shall be calculated by reference to Your or Your End User Customers use of the Service as recorded by Us and not by reference to Your records. You shall be liable to pay all Call Charges incurred by all the Users of the Service, even if the calls were made by or the Service is used by a third party, with or without Your permission
(d) Any other Charges shall be payable monthly in arrears or as otherwise agreed in writing.
14.3. Without prejudice to Our ability to vary the Charges under clause 22.10 or to vary the Call Charges and Call Package under clause 13, We may vary any of the Charges at any time on no less than 30 days’ prior written notice to You. If You do not accept the changes in the Charges, You may terminate this Contract on 14 days’ written notice to Us provided that You serve such notice prior to the varied Charges coming into effect.
14.4. You agree that We may invoice You for any Call Charges made under this Contract at any time up to 12 months following the date on which the call was made.
14.5. All Charges due under this Contract will be payable within 30 days of the date of the relevant invoice and will be paid in full without any set-off, deduction or withholding of any kind. We reserve the right to charge daily interest on any outstanding amounts until payment is received in full at a rate equal to 4% per annum above the base rate of Barclays Bank PLC as current from time to time whether before or after judgment, charge a late payment fee and/or suspend the Service (either in whole or in part) until all such charges have been paid in full.
14.6. If We agree to reprovide the Services to You following a suspension of the Services, for any reason, You will be liable to pay a reconnection Charge.
14.7. Where in order to provide You with the Service to Your End User Customer it is necessary in Our reasonable opinion to (whether in whole or in part) use non-standard or exceptionally expensive methods or where a substantially greater cost than usual is incurred by Us so as to render Our standard tariff inappropriate We may charge an additional charge. If We decide to do so, We will inform You and if You do not wish to pay such additional charges You may terminate this Contract by giving Us 30 days’ written notice.
14.8. We shall be entitled to carry out credit checks on You. We accept no liability for the accuracy or otherwise of information
provided to Us from credit reference agencies. If at any time before or during the term of this Contract You fail to meet the
standard of creditworthiness deemed acceptable by Us, We shall be entitled to:
(a) terminate this Contract, in whole or in part immediately on written notice to You;
(b) require You to make such regular instalment payments in advance on account of any future charges as We shall deem appropriate;
(c) impose credit limits on You in respect of Charges and to suspend the Service at any time when such limits are reached until payment in full of such outstanding Charges has been made; and
(d) impose such other measures on Your right to use any of the Services as We shall deem appropriate.
14.9. If at any time during this Contract in Our reasonable opinion Your financial standing changes adversely or You persistently default in paying the Charges then We may request a reasonable security deposit against non-payment. If You fail to provide such security deposit within 10 Working Days then We reserve the right to suspend and/or terminate this Contract with immediate effect by giving written notice.
14.10. In the event that You fail to make any payment on the due date under this Contract or under any other agreement with Us then without prejudice to any of Our other remedies or rights, including the right of termination under clause 15.1, We shall be entitled to suspend any further supply or Services without liability.
14.11. All charges are exclusive of value added tax and any other applicable taxes which may from time to time be levied.
14.12. Where any monies properly due to Us under this Contract or any other agreements are outstanding We will be entitled to offset such payments against any payments due from Us to You under this Contract or any other contracts under which We provide You with telecommunications or data services.
14.13. We shall be entitled to recover from You any charges levied on Us by any Network Operator in respect of incoming calls made from a public payphone.
14.14. You are liable pay to Us any Charges resulting from any fraudulent activity on the Service, howsoever caused
15.1. If either party is:
(a) in material breach of any provision of this Contract (other than clauses 8.1, 8.2 or 8.4) and fail to remedy such breach within 30 days of written notice to do so;
(b) unable to pay its debts as they fall due or threaten to suffer any resolution to wind up its business or enter into involuntary or compulsory liquidation or have an administrator, administrative, receiver or any analogous officer appointed over all or part of its assets;
then the other party may immediately upon notice in writing (without prejudice to any other rights and remedies they may have) terminate (either in whole or in part) this Contract.
15.2. We may terminate this Contract (either in whole or in part) with immediate effect if:
(a) You fail to meet the standard of creditworthiness as set out in clause 14.9;
(b) You are in breach (or We reasonably believe You are in breach) of clauses 8.1, 8.2 or 8.4 as breach may be a criminal offence and/or cause serious harm to Our reputation; and/or
(c) Our authorisations to provide the Services are altered in a way that is material to the Service.
15.3. We will continue to provide the Service in accordance with Clause 1 until termination of this Contract but if:
(a) You are late in making any due payment, or
(b) We become entitled to terminate this Contract early for any reason, or;
(c) You break any material term of another contract with Us then We may partially or completely suspend the Service without limiting Our ability to enforce other remedies that may be available. While the Service is suspended You must continue to pay the Charges.
15.4. If You terminate the provision of the Services (together with any related equipment rental) for an individual User or a number of
Users then You will pay to Us a termination payment calculated as follows:
(a) all outstanding Charges due up to and including the date of termination with respect to the terminated Services, including any one-off Charges that may have been incurred prior to the date of termination where the Initial Term, or Renewal contract period has expired.
(b) with respect to any Services terminated prior to the expiry of the Initial term, or Renewal contract period, Early Termination Fees up to 100% (one hundred percent) of any recurring Charges (such as the Rental Charge) payable with respect to the terminated Services for the period up to the first anniversary of the Service Start Date.
15.5. You acknowledge that Our Charges have been calculated on the basis that this Contract will continue until the end of the Initial Term as We may have spent money on set up costs and accordingly agree that it is reasonable for Us to require the payment of the Early Termination Fees as calculated above.
15.6. Further, upon termination of this Contract You at Your own cost, shall return all of Our Equipment to Us, and We may enter any Site(s) to recover and remove such of Our property and Our Equipment at Your cost. For the avoidance of doubt, where we have supplied Customer Premises Equipment on a rental basis as set out in Part 1, provided that You have paid any termination payment set out in clauses 15.4, as applicable, such equipment shall not be deemed to be Our Equipment
15.7. The expiry or termination of this Contract will be without prejudice to any other rights either party may be entitled to and will not affect any accrued rights or liabilities of either party.
16.1. Nothing in this Contract shall exclude or limit either parties’ liability for:
(a) fraud or fraudulent misrepresentation; or
(b) death or personal injury resulting from its own negligence or that of its employees, sub- contractors or agents; or
(c) breach of the terms implied by s.12 of the Sale of Goods Act 1979;
(d) the indemnities set out in clauses 9.7 and 12.5.
(e) anything else that cannot be excluded or limited under applicable law
16.2. Except as expressly provided in this Contract all conditions, warranties, terms, representations, undertakings and obligations express or implied by statute (including, without limitation, those of satisfactory quality or of fitness for a particular purpose (even if that purpose is made known expressly or by implication to Us)), common law, custom, trade usage or otherwise and all liabilities (if any) are excluded to the fullest extent permitted by law.
16.3. Without prejudice to clause 16.1, We shall not be liable to You whether in contract, tort (including negligence) or restitution, or for
breach of statutory duty or misrepresentation, or otherwise, for any:
(a) loss of business; or
(b) loss or corruption of data or information; or
(c) loss of profits; or
(d) loss of goodwill; or
(e) loss of business opportunity; or
(f) loss of anticipated savings even when advised of the possibility,
suffered by You, or your End User Customer under or in connection with this Contract
16.4. Without prejudice to clause 16.1, We shall not be liable to You, or your End User Customer whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any special, indirect or consequential loss or damage (including legal and other professional fees and expenses) or expenses of any nature.
16.5. Subject to the provisions of this Contract, both parties hereby accept liability in respect of damage to the other party’s tangible property resulting from its own or its employees’ negligence up to an aggregate amount of £2,000,000 (two million pounds) during the term of this Contract.
16.6. Without prejudice to clauses 16.1 and 16.5, both parties maximum aggregate liability in connection with this Contract whether
arising contract, tort (including negligence) or restitution or for breach of statutory duty or misrepresentation, or otherwise, shall be
limited in the aggregate in each Contract Year to the greater of:
(a) £250,000 (two hundred and fifty thousand pounds); or
(b) the value of the Charges paid by You in the preceding Contract Year (“Liability Sum”).
16.7. With reference to clause 16.6, in the event that 12 months has not accrued from the Commencement Date, the Liability Sum will be calculated by calculating the monthly average Charges incurred over the relevant period and multiplied by 12.
16.8. The limitations of liability set out in this clause 16 shall not limit Your liability to pay and Charges that are properly due under this Contract. Further, Your liability to pay the Charges shall not be taken into account for the purposes of applying the limitations set out in this clause 16 to any other liabilities You may incur under or in connection with this Contract.
16.9. This clause 16 sets out each party’s entire financial liability (including any liability for the acts or omission of their respective
employees, agents or subcontractors) to the other in respect of:
(a) any breach of this Contract; and
(b) any use made or resale of the Equipment and/or Software, or of any product incorporating the said Equipment and/or Software; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
17.1. We will not be liable to You for any loss or damage caused to or suffered by You as a direct or indirect result of the supply of the Equipment and/or Services being prevented, restricted, hindered or delayed by reason of any circumstance outside of Our control. If either party is prevented from performance of its obligations for a continuous period of 3 months the other may terminate this Contract by giving written notice.
18.1. You acknowledge that the Service (including, but not limited to, Software, technical assistance and training) provided under this Contract may be subject to export laws and regulations of the USA and other countries, and any use or transfer of the Services must be in compliance with all applicable regulations. You, and Your End User Customer will not use, distribute, transfer, or transmit any part of the Services (even if incorporated into other services) except with Our, or Our licensor’s. express written approval and in compliance with all applicable export regulations.
19.1. You agree that, in accordance with clause 14.9, We may use credit reference agencies to help Us decide whether We can provide (or continue to provide) the Services. You agree that We can pass information about You and Your payment record to credit security and debt collection agencies to help recovery and credit control.
19.2. We or Our agents may sometimes monitor or record calls made to Our Customer Technical & Customer Support Centre for training and quality control purposes.
20.1. Each party warrants to the other that it will at all times comply with its obligations (if any) under the Data Protection Act 1998 (“DPA”).
20.2. You shall ensure and shall ensure that the End User Customer ensures that any personal data (as defined in the DPA) provided to
or obtained by Us to enable the provision of, or otherwise in connection with, the Services will:
(a) comply with all applicable legislation, rules and regulations for the protection of personal data and privacy including the DPA;
(b) implement appropriate technical and organisational measures (including but not limited to appropriate policies communicated to Your staff on compliance and security measures) to protect such personal data against unauthorised or unlawful processing, accidental or unlawful destruction or accidental loss, alterations and unauthorised disclosure or access.
20.3. Notwithstanding anything to the contrary, You agree, and You shall ensure that the End User Customer other relevant parties and any relevant individuals agree, that We may transfer and disclose any personal data provided to or obtained by Us to third parties (including, without limitation, processing and transferring such personal data outside of the European Economic Area), and that We or they may use such personal data, in each case for the purposes of supplying the Services and administering this Contract including handling orders, billing, processing payments, payment collection and communicating regarding the Services. You will ensure that all necessary consents are obtained for Us to process, use, disclose and transfer personal data under this clause 20.
20.4. You shall, and shall ensure that the End User Customer shall:
(a) procure appropriate permissions and consents (where applicable) to transfer and disclose personal data relating to the End User Customer and any individuals to Us and third parties to allow Us and third parties to use and disclose such personal data for the purposes of providing the Services in accordance with this Contract;
(b) procure appropriate permissions and consents from the End User and individuals to allow Us and third parties to use associated personal data to provide services direct to the End User in the event of any agreed transfer of Services from You to Us.
20.5. You shall notify Us in writing immediately upon You becoming aware of any unauthorised or unlawful conduct or activities relating to personal data processed for the purpose of providing Services under this Contract.
20.6. You shall provide all reasonable assistance to Us in respect of any data subject access requests made by the End User or other data subjects under the DPA.
21.1. Each party shall (subject to clause 20 in respect of Personal Data):
(a) keep secret and not disclose any Confidential Information received or obtained from the other party to any third party for any purpose except with the prior written consent of the other party (except where such disclosure is required by law as confirmed by written legal advice);
(b) only use any Confidential Information received or obtained from the other party for the purpose of performing its obligations under this Contract;
(c) protect the Confidential Information received or obtained from the other party with the same standard of skill and care as it uses for its own confidential (but, in any event, at least reasonable skill and care); and
(d) limit dissemination of the Confidential Information received or obtained from the other party to those of its employees, agents or officers that need to know the information for compliance with clause 21.1(b).
21.2. The provisions of clause 21.1 shall remain in full force and effect for a period of 4 years following termination or expiry of this Contract
22.1. This Contract constitutes the entire contract and understanding of the parties and supersedes any purchase order or other document supplied by You or any previous contract between the parties relating to the subject matter of this Contract.
22.2. Each of the parties acknowledges and agrees that in entering into this Contract it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Contract or not) other than as set out in this Contract. Nothing will operate to limit or exclude any liability for fraud.
22.3. Should any provision of this contract be held to be void or voidable the remaining provision of this Contract will continue in full force and effect.
22.4. No forbearance, delay or indulgence by either party in enforcing the provision of this Contract will prejudice or restrict the rights of that party nor will any waiver of its rights operate as a waiver of any past or subsequent breach.
22.5. We will use reasonable endeavours to meet any delivery time, date or period. However, such dates will be regarded as estimates and We will have no liability to achieve any such time, dates or periods.
22.6. No other person or body who is not a party to this Contract has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Contract (but this does not affect any rights or remedies of a third party which exist or are available apart from that Act).
22.7. You may not assign the whole or part of this Contract without Our prior written consent such consent not to be unreasonably withheld.
22.8. We may assign this Contract to any company which from time to time is a member of Our Group.
22.9. Subject to clause 22.8, We may not assign this Contract to any other third party without Your prior written consent such consent not to be unreasonably withheld.
22.10. We reserve the right to vary these terms and conditions to the extent necessary to take into account any changes to Industry Agreements and any relevant Legislation. We may make changes to the Service Standard from time to time. Such changes will be notified to You not less than 28 days prior to their taking effect. Any other variations must be in writing and agreed between the parties.
22.11. Any notice under or in connection with this Contract shall be in writing and may be delivered by hand to or sent by first class post, email or by facsimile (with confirmation by post) to the Company Secretary at the address of the party concerned set out in this Contract or any other address notified from time to time.
22.12. Any notice addressed as provided in clause 22.11 shall be deemed to have been given or made on the second Working Day after posting if sent by first class post upon delivery if delivered by hand and if sent by fax on the next Working Day after the date of transmission provided the sender’s facsimile machine produces a report showing successful transmission to the correct facsimile.
22.13. You are not authorised or entitled to re-sell, re-supply or otherwise distribute or sub-license the services, software, documentation and/or any equipment provided by Us except as permitted by the terms of this Contract.
22.14. The provisions of this Contract shall prevail over anything to the contrary in any other agreement between Us and You in relation to the Services.
22.15. This Contract shall not create a partnership between the parties and, at all times, each party shall act as an independent contractor for all purposes of this Contract.
22.16. The construction, validity and performance of this Contract will be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
23.1. In these conditions:
“Acts” the Communications Act 2003, the Telecommunications Act 1984 and the Electronic Communications Act 2000 (each as amended from time to time;
“Additional Charges” the additional fees which may be charged at Our standard rates, in force from time to time, as detailed in this Contract;
“Additional Services Order (ASO)” means a pro forma Order Form, which is required when additional chargeable items, User licences, Site or User ‘Add-on’ licences, or Equipment is required, used in conjunction with a “Change Request”
“Authorised List” means the authorised list of equipment that may be connected to the Service.
“Business Portal” means the web based Administration portal for the Company Administrator to manage the Site and User features of the service.
“Call Charges” means the rate applicable for a call commencing from when an answer signal is received and ceasing when a release signal is received. Call Charges are calculated on a per second basis and rounded up to the nearest second, with the exception of minimum of fixed fee calls. For the avoidance of doubt, VoIP to VoIP calls over the Network shall not attract Call Charges;
“Call Package Charges” means the call package charges, as detailed on Part 1:
“Change Request” means a change to the Service requested
“Charges” the Connection Charges, Rental Charges, Call Charges or Call Package Charges as detailed in Part 1 or any Additional Charges or other charges payable by You under this Contract;
“Class of Service” the level of Service We will provide to You as detailed in the Contract;
“Code” means Schedule 2 of the Telecommunications Act 1984 as amended by Schedule 3 of the Communications Act 2003;
“Commencement Date” date this Contract was entered into;
“Contract” this contract for the supply of Pod UC Services, including these Terms and Conditions and Parts 1 to 3;
“Contract Year” a period of 12 months from and including the Commencement Date and each consecutive 12- month period thereafter;
“Customer Equipment” any equipment at the Site(s) owned by You or a third party which when operated in conjunction with Our Equipment, allows You to obtain and/or receive the Services;
“Customer Network Compliance Statement” Our standard information questionnaire relating to the Site;
“CIF” means a Customer Information File which shall be completed by You, with assistance from Us, and will supply the detail of the Service required by You;
“Documentation” any documents prepared by or on behalf of Us in respect of the Equipment and/or the Service;
“Early termination Fee (ETF)” means an amount payable, up to and including the outstanding balance due under the Initial Term of the contract for the Service or part of the Service You wish to terminate before the anniversary of Initial Term.
“Emergency Call Services” means the conveyance of a call made to the 999 (or 112) services, using the Services;
“End User Customer” means the business You are reselling the Service to and “They/Their/Them” shall be construed accordingly.
“Equipment” means Our Equipment (equipment rented from Us, for the purpose of clarity, telephone devices, and accessories) and/or the Customer Equipment, (equipment purchased from Us, or on lease/purchase, for the purpose of clarity, telephone devices, and accessories), or Authorised Equipment purchased by You from a third party, or currently in use.
“Industry Agreements” any standard industry agreements or third party agreement which impact upon Our ability to provide the Service (including Our interconnect agreements with other Network Operators);
“Initial Term” a period of 12 months for the provision of Services (unless otherwise stated on Part 1) commencing on the Service Start Date;
“Legislation” all Acts of Parliament and statutory regulations, instruments or orders and codes of practice and all applicable European Union laws, directives and other legislation as any of the same may be amended or replaced from time to time;
“Materials” means any materials that You supply to Us to enable Us to perform the Services, whether in paper, digital or other format and which may contain copyright, trademark, tradename, domain name or other intellectual property rights, whether registered or in the process of registration and whether or not registerable in the UK or elsewhere;
“Network” the telecommunications and/or IP infrastructure and system operated by Us and/or the network of any Network Operator, as applicable;
“Network Operator(s)” any licensed public telecommunications operator whose network is used by Us to deliver the Service;
“Our Equipment” means equipment owned by Us (or by a third party that has made the equipment available to Us) in order for Us to supply the Services, including the handsets and other rental equipment specified in Part 1.
“Our Website” means Our website or any other replacement site;
“PBX” Private Business Exchange; this term is used to describe ‘on-premises’ business telephony systems
“Proposed Start Date” the date specified in Part 1 or as amended on which the Service is due to be made available to You at the first Site. For the avoidance of doubt, each Site will have its own Proposed Start Date, as will be notified to You in writing;
“Service” means the Pod UC service, including all Site and User features, including any optional ‘add-on’ features subscribed to under this contract, and any Equipment (telephone devices, or accessories purchased, or rented under this contract.
“Site Feature” means a distinguishable software function included in the Software and as further detailed in the Service Standard.;
“Service Numbers” those number ranges (including but not limited to 01xxx, 02xx, 080x, 084x, 087x, 09xx) as varied or substituted from time to time in accordance with clause 10.5;
“Service Standards” the Service Standards set out in this Contract;
“Service Start Date” means, in respect of each Site, the Proposed Start Date or if different the earlier of the dates upon which You are notified the Service is available for use at a particular Site or the date You begin using the Services at such Site;
“Services” the services (if any) to be provided by Us as detailed in Part 1;
“Site” or “Site(s)” the location or locations at which We install and/or deliver the Equipment and provide the Services;
“Software” means the software with any additional software if any, which is supplied by Us to enable Us to provide the Services pursuant to this Contract;
“Technical Support Centre” the centre to which all fault reports and help queries should be addressed;
“UK” England, Wales, Scotland and Northern Ireland; “Users” any individual authorised by You to use the Service;
“User Feature” means a distinguishable software function included in the Software and as further detailed in the Service Standard
“User Service Licence” means the right for each User to access the Services. This right does not operate to transfer any intellectual property to You
“We/Us/Our” 24 Seven Cloud Communications Limited (registered number 11710396) whose registered office is at 1 Victoria Court, Bank Square, Morley, Leeds, West Yorkshire, England, LS27 9SE;
“Working Day” Monday to Friday 9.00am to 5.00pm inclusive except for UK bank and public holidays;
“You/Your” the person or company to whom the Equipment and/or Services are provided.
1.1. The Charges for the Service are exclusive of VAT.
1.2. Unless expressly stated otherwise below, words and expressions have the meaning given in Clause 23 (Definitions) of the Agreement.
(a) The Charges are listed in the Pod Call Charges Rate Card.
(b) The Tariff includes a number of inclusive minutes per month per Eligible Licence: (i) UK Mobile – 2000 minutes (fm1,3,4,5,6); (ii) UK Geographic (01/02), USA Landline, USA Mobile and Ireland Landline – 5000 minutes; and (iii) UK 03 which will be no more than 15% of the total Geographic Minutes in sub-clause 5.4 (b)(ii), (“Inclusive Minutes”).
(c) The Inclusive Minutes and compliance with the Fair Use Policy will be measured at the Customer level across all Eligible licences.
(d) For Eligible Licences with a duration of less than the number of days in the month, the Inclusive Minutes will be calculated as follows: The number of days the Eligible Licence was active in the month divided by the number of days in the month multiplied by the allowance.
(e) Calls in excess of the Inclusive Minutes will be charged at the relevant mobile charge band (FM 1, 3, 4, 5 and 6), international charge band (Ireland landline, USA landline and USA mobile) and geographic (01,02 and 03 calls) rates set out in the Pod Call Charges Rate Card. We may, where Calls are consistently in excess of the Inclusive Minutes, by giving 30 days written notice to the Customer, suspend the Inclusive Minutes and charge for all Calls at in accordance with the Pod Call Charges Rate Card.
(f) You will be responsible for apportioning and onward billing any charges in excess of the Inclusive Minutes.
(g) The Inclusive Minutes are subject to a fair use policy under which We anticipate:
(i) a User to make Calls to no more than 300 different numbers in a month; (ii) Calls will be person to person calls; and (iii) the Service will not be used for Dialler, Contact Centre, Private Cloud solutions (“Fair Use Policy”).
(h) We may, where the Customer has not complied with the Fair Use Policy, immediately: (i) terminate the Agreement; or (ii) suspend the Inclusive Minutes and charge for all Calls in accordance with the Pod Call Charges Rate Card.