DU PRÉ LTD TERMS OF BUSINESS
The following shall apply in these Terms of Business:
‘Company’ and “we” means du Pré Ltd.
‘Contract’ means any contract application by the Customer with the Company and these Terms of Business.
‘Customer’ or “you” means the person, firm or company who purchases the Equipment from the Company.
‘Equipment’ means the Equipment and Telephone Services listed in the Quotation and Customer Order Form and any other article supplied by the Company to the customer and where applicable includes any work relating to the installation, commissioning, training and support thereof.
‘Order Form’ means the Quotation and Customer Order Form attached to these Terms of Business which form the Contract between the Customer and the Company.
‘Telephone Services’ means mobile phones, calls and lines, circuits or any other telecommunications or internet service.
- The Contract and all the Company’s sales to the Customer shall be on these Terms of Business, as amended from time to time by notice in writing by the Company, which may not be altered in any way save in writing, signed by the Chief Executive Officer, Company Secretary, or Financial Controller of the Company.
- No quotation or other offer from the Company shall be valid unless it is in writing and signed on behalf of the Company by a duly authorised person. No clerical error or omission shall annul the Contract but may be corrected by the Company. It is the sole responsibility of the Customer to check all quantities with specification requirements. When a Contract refers to financing of Equipment the Company shall not be responsible for providing such finance and the Customer’s failure to obtain the same from a third party will not be a breach of the Contract by the Company nor be the grounds for cancellation by the Customer.
- Any quotation may be withdrawn, cancelled or varied by the Company at any time prior to acceptance and shall lapse if not accepted within 30 days of the date stated on the quotation. Where any quotation is given on the basis that the Equipment will be leased by the Customer from a third party and the Customer is found not to be eligible for lease finance the Company reserves the right to withdraw, cancel or vary any quotation given (whether before or after acceptance) including reissuing the quotation on the basis of a purchase of the Equipment by the Customer from the Company.
- Each order or acceptance of a quotation for Equipment by the Customer from the Company shall be deemed to be an offer by the Customer to buy the Equipment subject to these Terms of Business.
3 Leaflets etc.
All samples leaflets advertisements specifications drawings and other matter issued by the Company together with any demonstrations made by the Company are for illustration purposes only and shall not be binding on the Company. They shall not form part of the Contract and this is not a sale by sample.
Payment in full is due on or before delivery of the Equipment or as detailed in a quotation issued by a duly authorised person. Payment is not conditional upon installation or acceptance testing, where applicable. Without prejudice to the Company’s right to payment on the due date interest at the rate of 3% per month above Lloyd Bank’s base rate or part thereof will be charged from the due date until payment is received. Unless otherwise stated all figures are exclusive of VAT which will be charged at the appropriate rate in addition where applicable. Without prejudice to the foregoing the Company may, at its discretion, require stage payments as it deems fit, including, without limitation, for work in progress on a monthly basis.
5 Delivery of Equipment and Equipment in transit
- Any time given for delivery of Equipment is an estimate only and the Customer shall have no claim for any loss due to late delivery. If no dates are so specified, delivery shall be within a reasonable time. The Company reserves the right to part deliver, as it considers necessary.
- Equipment in transit to the Company from the Customer for any reason shall in all respects be at the Customer’s cost and risk unless other arrangements have been made to the contrary in writing.
- The Customer must notify the Company and the carrier in writing of any damage caused to the Equipment in transit or any irregularity in the carriage or delivery of the Equipment within seven days of delivery to the Customer and in default the Company shall be under no liability therefore. No claim for non-delivery of the Equipment will be considered unless the Company and the carrier have been advised in writing of such non-delivery within seven days of the date shown on the Company’s advice note.
The Company reserves the right to charge the Customer for storage of Equipment from the date that the Customer is notified that Equipment is ready for delivery where delivery is delayed at the request of the Customer or due to default in payment.
All matters relating in any way to third party consents such as, and without limitation, software licences consents licences way-leaves public telephone lines private lines inspection and acceptance testing where appropriate for use of the Equipment must be dealt with and paid for and complied with by the Customer. The Company accepts no responsibility for and shall not be liable for failure to obtain the same.
When the Contract includes installation commissioning, training or support of Equipment the price includes delivery to site in the Company’s normal working hours but not the provision of any special equipment on site including but not limited to cranes hoists scaffolding and lifts. The Company shall not be responsible for the work of any other trade including but not limited to cutting away and making good wall surfaces ceiling tiles and decorations conduit ducting trunking ground work and builders work. Unless otherwise stated trunking conduit and ducting are not included in the Equipment to be supplied by the Company. Where cable is to be installed in conduit trunking or ducting provided by others strong draw wires shall be installed by the Customer for use by the Company. All quotations are given on the basis of uninterrupted access to all relevant sites and a minimum of 14 days’ notice in writing is required for the Company’s engineers to attend site. Where applicable all quotations allow for a maximum of two visits to site for first and second fix. Any delays which occur as a result of inclement weather non-completion of third party work or non-availability of third party supplies any act or omission on the part of the Customer or any cause beyond the Company’s control will give rise to additional charges. The Customer shall provide any necessary mains electricity supplies.
The title to Equipment supplied will remain with the Company until payment in full has been made for the Equipment and all other sums which are or become due to the Company from the Customer on account. Without prejudice thereto the Customer shall insure all Equipment from delivery against loss or damage and shall maintain the same in good saleable condition. At all times before payment in full the Equipment shall stand in the Customer’s books in the name of the Company and the Customer shall take appropriate action to notify all third parties of the Company’s interest in the Equipment. The Company shall be entitled to recover payment for the Equipment notwithstanding that ownership of any of the Equipment has not passed from the Company. At the expense of the Customer, the Company has the right to recover the Equipment and to disconnect and remove the Equipment and the Customer agrees to grant all necessary rights of access therefore and the Company may exercise all the rights conferred by law on an unpaid seller. The Customer shall not re-sell, pledge or in any way charge by way of security for indebtedness any of the Equipment whilst it remains the property of the Company.
- Where the Company is not the manufacturer of the Equipment, the Company shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company.
- (i) When the Company has supplied Equipment and there is no contract for maintenance or support between the Customer and the Company or the Customer and a third party any Equipment alleged by the Customer to be defective must be returned to the Company at the Customer’s cost. Any technical assistance required away from the premises of the Company must be covered by a separate order and will be charged for separately. No claim for defective Equipment shall be considered after 90 days from the date of delivery of the Equipment.
(ii) Defects covered by clause 10b.(i) are limited to faulty materials or workmanship and shall not cover defects due to improper storage or following installation by a third party or if the Equipment has been tampered with or modified in any way. Furthermore the Company’s liability is limited to the actual costs of replacement parts used but in the case of any component used in Equipment which is the subject of a manufacturer’s guarantee shall be limited to the level of that guarantee. Where replacement parts are provided by the Company the old parts removed will become the property of the Company.
- The Company reserves the right to replace or repair at its option. The Company may remove all or part of the Equipment from the Customer’s premises for the purposes of inspection testing and repair.
- Faults of a minor or intermittent nature which do not significantly affect the use of the Equipment by the Customer will be dealt with when reasonably convenient to the Company. The Company will make an extra charge for work done outside the Company’s normal working hours.
All returns of Equipment to the Company whether for repair or otherwise are at the Customer’s cost and risk. Where a genuine error in ordering has occurred and replacements are required and the Equipment in question is a standard stock item and has been kept in an ‘as new’ condition the Equipment may be accepted back at the discretion of the Company but the Customer will be liable to the company for all costs incurred as a result thereof.
No Contract can be cancelled by the Customer without the consent of the Company in writing and signed on behalf of the Company by the Chief Executive Officer, Company Secretary, or Financial Controller of the Company. In the event of cancellation by the Customer the Customer shall indemnify the Company against all loss and expenses occasioned thereby including loss of profit. The Company may cancel the Contract at any time before the Equipment is delivered by giving written notice. On giving such notice the Company shall promptly repay to the Customer any sums paid in respect of the Equipment by the Customer after deduction of any sums due to the Company under this clause or in any other manner whatsoever. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
- The Company shall not be liable for any loss damage or expense howsoever arising from any loss of use failure or deterioration of Equipment or any loss (whether direct or indirect) of profits business contracts or anticipated saving or for any indirect or consequential loss whatsoever.
- The Company shall not be liable for any loss or failure to comply with its obligations where the failure is due to fire flood inclement weather strikes industrial action acts or omissions of Government or any department thereof or of third parties or any other reason whatsoever beyond its reasonable control.
- The Customer is responsible for maintaining the security of its data and ensuring that its data is adequately backed up. The Customer shall keep full security copies of the Customer’s programs, databases and computer records in accordance with best computer practice. The Company shall not be liable for any loss of the Customer’s or any third party’s data.
- The Company cannot be held responsible for any bugs in any operating software, viruses, corrupt data and or back-up failures.
- The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price of the Equipment as listed in the Order Form.
The Customer acknowledges that any representations made on behalf of the Company shall not be binding unless agreed in writing by a duly authorised person.
- Clause headings in these Terms of Business are for ease of reference only and shall not affect the interpretation or construction of these Terms of Business.
- Any notice required to be given hereunder shall be served by posting the same by pre-paid Special Delivery Guaranteed post (or its equivalent) to the registered office of the party to be served (in the case of a company) or to the installation address specified overleaf (in the case of an individual firm or partnership). Any notice served hereunder shall be deemed to have been received 48 hours after posting. In proving service by post it shall only be necessary to prove that communication was contained in an envelope which was duly addressed and posted in accordance with this Clause.
- The Order Form and these Terms of Business constitute the entire contract and understanding of the parties and supersedes any previous contract between the parties relating to the subject matter of this Contract.
- No term in this Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
- If any provision of this Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable that provision shall be deemed severable and the remaining provisions of this Contract shall continue in full force and effect.
- This Contract contains provisions which relate to a wide range of Equipment provided by the Company. Where any particular provision in these Terms of Business is not relevant to the Equipment we have agreed to supply to you that particular provision shall be deemed to be deleted from these Terms of Business, which shall be construed accordingly.
- The Company may at any time assign, transfer, mortgage, charge, sub-contract or deal in any other manner with any or all of its rights and obligations under this Contract, provided that the Company gives prior written notice to the Customer. The Customer will where requested by the Company enter into a novation of this Contract in favour of any purchaser of the business and/or assets of the Company.
- The Customer may not assign, transfer, mortgage, charge, sub-contract or deal in any other manner with any or all of its rights and obligations under this Contract.
- The Customer warrants to the Company that the Customer has not been induced to enter this Contract by any prior representation whether oral or in writing, except as specifically contained in this Contract, and that the Customer waives any claim for breach of prior representations.
16 Telephone Services
When ordering Telephone Services from the Company additional Terms and Conditions apply.
- These Terms of Business and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
- Each party irrevocably agrees that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim that arises out of or in connection with these Terms of Business or their subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit the right of the Company to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
END All rights reserved. © du Pré Ltd June 2017
TERMS AND CONDITIONS FOR SUPPORT
1 Agreement Term
1.1 The Support Agreement and any associated Schedule (where applicable) collectively known as the Agreement and duly signed on behalf of the Company, shall commence on the Commencement Date and shall continue thereafter on these Terms and Conditions for Support, as follows:
1.1.1 until expiry of the Initial Term if notice to terminate on that date is given by the Customer not less than 90 (ninety) days’ before the expiry of the Initial Term, or
1.1.2 (if no such notice is given before expiry of the Initial Term) this Contract will continue automatically for further 12 month terms;
1.1.3 until notice to terminate is given by the Customer not less than 90 (ninety) days before the end of the current term;
1.1.4 save that the Customer may not terminate the Contract if any Equipment under support is subject to any hire or hire purchase agreement or leasing agreement or agreement for payment on deferred terms or any other agreement where the Company or any third party retains title to the Equipment.
1.1.5 Any notice to terminate must be made by the Customer in writing by despatching the communication using pre-paid Special Delivery Guaranteed post (or its equivalent) to the Company’s registered address.
1.2 The Customer warrants to the Company that the Customer has not been induced to enter the Agreement by any prior representation whether oral or in writing, except as specifically contained in the Agreement, and that the Customer waives any claim for breach of prior representations.
1.3 The Customer confirms that:
1.3.1 in the case of a sole trader, he or she is at least 18 years; or
1.3.2 is the director or person who agreed or completed the contract application forming part of the Agreement and has the authority to act on behalf of the Customer and bind the Customer to the Agreement; and
1.3.3 that all details of the Customer which were inserted on that contract application by that director or person acting on the Customer’s behalf are accurate and up-to-date; and
1.3.4 by completion of the contract application, the Customer agrees to be bound by the Agreement.
1.4 Commencement Date is:
1.4.1 for telephony related products: the first date the system is connected to the network,
1.4.2 for circuits, software and any 3rd party product or service supplied by the Company: the date of provision or supply,
1.4.3 for IT products: one calendar month after the date of the first shipment to the Customer.
2 Support and Repairs
2.1 Subject to Clause 2.2 the Company will maintain the Equipment as listed on the Agreement in accordance with the appropriate Service Level Agreement (SLA) as amended from time to time and published on the du Pré Ltd website, here: http://www.dupre.co.uk/service-level-agreement, either by its servants or agents or contractors and the Customer will give access to the Equipment for this purpose. Wherever there is a discrepancy between the SLA and these Terms and Conditions for Support, the Terms and Conditions for Support will prevail. The Customer will promptly notify the Company when any fault in the Equipment occurs. The Customer will allow the Company access to its premises and the Equipment to enable the Company to perform its obligations under the Agreement. Refusal to allow such access will entitle the Company to levy a charge and to suspend provision of support to the Customer under the Agreement.
2.2 The Customer will not and will ensure that its employees contractors and other third parties will not attempt to maintain the Equipment or any cabling attached thereto or to change, reconfigure, reprogram, revise the size or specification of or otherwise alter the Equipment or any cabling attached thereto during the term of the Agreement.
2.3 The Company shall not be obliged to provide support hereunder if any support of the Equipment is necessitated as a result of any cause other than (i) fair wear and tear, or (ii) the Company’s neglect or fault. Causes other than fair wear and tear or the Company’s neglect or fault shall include, without limitation, the following:
2.3.1 failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; or
2.3.2 accident, transportation, neglect, misuse or default of the Customer, its employees or agents or any third party (including any defect caused by BT plc or any other operator providing a telecommunications service to the public); or
2.3.3 Where the fault that has been lodged has been a non-system fault, but instead one of the carrier (eg BT plc) then the Company will charge the Customer for the call-out and any parts used at their current charges. The Company cannot accept responsibility where the carrier refuses to cover all these costs; or
2.3.4 Any fault in any attachment or associated equipment (whether or not supplied by the Company) which does not form part the Equipment; or
2.3.5 Any act of God, inclement weather, fire, flood, war, act of violence, or any other occurrence beyond the reasonable control of the Company; or
2.3.6 Any attempt by any person other than the Company’s personnel to change, reconfigure, reprogram, revise the size or specification of or otherwise alter the Equipment or any cabling attached thereto or to maintain the Equipment or any cabling attached thereto; or
2.3.7 For the avoidance of doubt if the Customer adds new parts or changes the configuration of the equipment then this may be automatically maintained by the Company, at the Company’s discretion. The Company may as a consequence invoice the Customer for the maintenance of these new parts or configuration.
2.4 Nothing in these Conditions shall render the Company liable to the Customer for any resulting or consequential loss (including loss of profits), damage or inconvenience caused by any defect arising howsoever to the Equipment.
2.5 The Company will (if it is able so to do) at the request and expense of the Customer repair replace any part of the Equipment which has failed due to a cause other than fair wear and tear or due to the Company’s neglect or fault.
2.6 The Company shall not be liable for any delay or failure in performing its obligations hereunder if any spare parts are not available.
2.7 If a Customer requests the Company’s support without good reason (or in respect of any Equipment or fault not covered by the terms of the Agreement) the Customer will be liable to pay to the Company further charges in accordance with the Company’s then subsisting scale of charges for such support such charges being in addition to any other monies due under the Agreement or under any other Agreement between the Company and the Customer.
2.8 The Customer must not attempt to repair the Equipment in the event of breakdown but must notify the Company as soon as practicable after the fault comes to the Customer’s notice.
2.9 If any damage or breakdown has been caused by default or carelessness of the Customer or any third party or by a mis-operation by the Customer or any third party the repair will be at the expense of the Customer.
2.10 Theft, loss or destruction of or damage to the Equipment shall not affect the Customer’s obligations hereunder.
2.11 Support outside normal business hours will be at the Customer’s expense. Normal business hours are detailed in the du Pré Service Level Agreement.
2.12 Unless any of the circumstances set out in Clause 2.3.2 apply the Company shall in any case aim to respond to any request for support in accordance with the Service Level Agreement.
2.13 In any case other than where the Customer is in breach of conditions 2.2, 2.4, 2.6, 2.7, 2.8, and 2.9 above, the repair will be at the expense of the Company.
2.14 When the Customer reports a fault in the Equipment the Company will respond either by:
2.14.1 providing advice by telephone (including where appropriate advise as checks and tests to be carried out by the Customer); or
2.14.2 where possible, carrying out diagnostic checks from the Company’s premises; or
2.14.3 when considered necessary by the Company visiting the Customer’s premises where it has not been possible to diagnose or clear a fault in the Equipment using the procedures in 2.14.1 and 2.14.2 above.
2.15 The Agreement does not cover the following items unless they are specifically listed under Equipment of the Agreement:
2.15.1 Overhead, underground or external cabling
2.15.2 Two wire telephone handsets, otherwise typically known as POTs
2.15.3 Category 5 cabling or greater
2.15.4 Call loggers, voicemail, battery back up and other additional ancillary equipment which is not integral with the Equipment supplied by the Company.
2.16 Where replacement parts for any Equipment are provided by the Company any parts removed from the Equipment shall be the property of the Company and any replacement parts provided by the Company in exchange shall be the property of the Customer.
2.17 In rectifying a fault to the Equipment it may be necessary for the Company to reset the Equipment software program. In such circumstances the Company will not be responsible for any resetting of the Customer’s (or its employees) individual programming requirements.
2.18 The Company may (where repairs cannot be effected by component replacement) provide replacement Equipment (including, without limitation, assemblies and sub-assemblies including telephones and handsets) PROVIDED THAT all details are recorded on the Company’s engineer’s support report and acknowledged at the time of replacement by the signature thereon of the Customer or its representative, that any replacement Equipment shall be agreed by the Customer as a permanent replacement for the Equipment removed.
2.19 The Company shall not be liable to the Customer to maintain or repair the Equipment in respect of any fault which was not notified to the Company within 14 days of the date on which the Customer knew or should have known, of the fault’s existence.
2.20 The Company may subcontract any or all of its obligations covered by the Agreement to a third party without notifying the Customer.
3 Support Charges
3.1 Support charges shall be in accordance with the Company’s standard scale of support charges from time to time, a copy of which can be obtained from the Chief Executive Officer, Company Secretary or Financial Controller of the Company. Subject as hereinafter mentioned all charges shall be payable in advance, the first annual support charge to be made in advance of the Commencement Date and subsequent annual support charges in advance on the anniversary of the Commencement Date.
3.2 All VAT payable on the charges under the Agreement shall be paid by the Customer at the time of payment of such charges.
3.3 The Company reserves the right to adjust the Company’s annual support charges for payments falling due on or after the expiry of the first anniversary of the Commencement Date by notification of the increase by invoice to the Customer at least one calendar month before the adjustment is to take effect with the exception of an annual increment being added for the Retail Price Index (RPI).
3.4 No work or support shall be undertaken by the Company if at the time such work is requested the Customer has failed to pay any outstanding monies due to the Company.
3.5 In the event that any of the above payments are not made on the due date, the Company may charge the Customer interest in respect of the late payment of any sum due under the Agreement on a day to day basis compounded on usual quarter days (both before and after any judgement) at the rate of 3% per annum above the base rate from the due date for payment to the date of actual payment.
3.6 The Customer shall not be entitled to withhold payment of the support charges or of any other payment due to the Company by reason of any set-off to counterclaim which the Customer may have or allege to have against the Company or for any reason whatever.
3.7 The Customer agrees to pay invoices by way of direct debit mandate. Payment other than by direct debit mandate will attract a surcharge. In addition a deposit may be required at the sole discretion of the Company’s Chief Executive Officer.
4.1 Clause headings in the Agreement and these Terms and Conditions for Support are for ease of reference only and shall not affect the interpretation or construction of the Agreement.
4.2 An Agreement may have a Schedule attached depending on the diversity or quantity of Equipment. It will indicate on the front of the Agreement if a schedule is attached (a “Schedule”).
4.3 The Company may withdraw products from the Agreement at any time upon 30 days prior written notice during the Initial Term or 15 days prior written notice after the expiry of the Initial Term if in the Company’s opinion such products cannot be supported at the price quoted, in particular if the Equipment turns out to be different from that expected and quoted for.
4.4 Changes to the quantity of Equipment and/or items on the Agreement which result in the Agreement value becoming or remaining less than 85% of the Agreement value at the date such change is notified to the Company shall apply 90 days after the Company received notice from the Customer of such changes. For the purposes of this Clause and Clause 4.6 the term “Agreement value” means the aggregate amount of the support charges payable to the Company in the year of the Agreement in which the relevant change in the quantity of the items of Equipment is notified to the Company and the term “year of the Agreement” means the period of twelve months commencing on the Commencement Date and each subsequent consecutive period of twelve months during the period of the Agreement.
4.5 Where support charges apply from a date which is not an anniversary of the Commencement Date because a new item is added to or removed from the Equipment or an existing price alters then the Company shall apply such price change pro-rata from the date of the change to the date of the end of any un-expired Agreement period usually to the expiry of the Initial Term or, if later, the next anniversary of the Commencement Date.
4.6 Should the Customer wish to alter the quantity of items of Equipment such that the resultant Agreement value be less than 85% of the Agreement value at the date such alteration is notified to the Company then the Company shall be entitled to charge an increased rate on the remaining items by way of recovering any quantity price discount provided by the Company to the Customer.
4.7 The Company reserves the right to make additional charges to cover major sub-assemblies, such as certain portable PC screens, which when broken cannot be repaired but must be replaced. The Company will offer to replace such items at cost.
4.8 If in the reasonable opinion of the Company any part of the Equipment cannot be supported by the provision of replacement spare parts or if a major sub-assembly or whole of the Equipment is damaged beyond economical repair then the Company reserves the right to cancel the Agreement forthwith, upon giving written notice to the Customer, insofar as it relates to that part of the Equipment or any other parts which are rendered inoperable.
4.9 The Customer will provide a complete and accurate list of Equipment to be supported under the Agreement. In the event of inaccuracies caused, for example, by the presence of non-original manufacturer units or sub-assemblies or non-Company provided additions the Company will use reasonable endeavours charged at time and material rates to affect necessary repair(s).
4.10 The Customer is responsible for maintaining the security of its data and ensuring that its data is adequately backed up. The Company shall not be liable for any loss of the Customer’s (or any other person’s) data.
4.11 The Company cannot be held responsible for any bugs in any operating software, viruses, corrupt data and or backup failures.
4.12 The response time for these faults will be guided by the SLA shown on the Agreement and as defined. All support, repairs or replacements may be carried out at the premises where the Equipment is installed or elsewhere at the option of the Company.
4.13 The Customer must make available to the Company such programs, operating manuals and information as may be necessary to enable the Company to perform its obligations under the Agreement and shall if requested by the Company provide staff familiar with the Customer’s programs and operations, which staff shall co-operate fully with the Company’s personnel in the diagnosis of any malfunction of the Equipment. The Customer must also make available to the Company free of charge all facilities and services reasonably required by the Company to enable the Company to perform the network support services including without limitation access to the Customer’s computer network and other computer runs, memory dumps, print-outs, data preparation, office accommodation, typing and photocopying. The Company cannot be held responsible for recovery or reconstruction of any data or programs lost or spoiled as a result of any breakdown of or any fault in the Equipment.
4.14 The Customer shall keep full security copies of the Customer’s programs, databases and computer records in accordance with best computer practice.
4.15 The Customer may not at any time assign, transfer, mortgage, charge, sub-contract or deal in any other manner with any or all of its rights and obligations under the Agreement.
4.16 The Company shall not be liable for any delays to or failure to execute any work or repair, replacement, alteration to, or removal of the Equipment due to any circumstances beyond the control of the Company and the Company’s obligations in that behalf shall be suspended during any period of any such delay or failure beyond its control.
4.17 The Company may at any time assign, transfer, mortgage, charge, sub-contract or deal in any other manner with any or all of its rights and obligations under the Agreement, provided that the Company gives prior written notice to the Customer. The Customer will where requested by the Company enter into a novation of the Agreement in favour of any purchaser of the Company and/or assets of the Company.
4.18 All consumables required to enable the Company to rectify any defects in the Equipment including without limitation cassette tapes, print ribbons, toner, developer, paper and paper rolls will be provided by the Company or its approved supplier at the expense of the Customer unless specified in the Agreement.
4.19 The Customer will promptly notify the Company of its intention to change the address at which the Equipment is installed for which the Company must first give written permission. In the event that the Equipment is removed to another address without prior written permission from the Company the Company shall be relieved of its obligations under the Agreement (whereupon any outstanding liabilities of the Customer will become immediately payable to the Company) PROVIDED THAT the Company shall be entitled to elect to continue to provide support in respect of such Equipment on the terms specified in condition 4.21 and 4.22 below.
4.20 If the Equipment is moved to other premises and the Company elects to continue to provide support the Company will be entitled to increase the support charges payable under the Agreement, to cover any additional costs to the Company in providing support at the new location.
4.21 The Company shall be entitled to inspect the Equipment before accepting any request to undertake any support obligations in respect of such Equipment.
5 Other Terms
5.1 Without prejudice to condition 5.5 any amendment of the Agreement, or written permission to be given under the Agreement by the Company will not be binding unless confirmed in writing by the Chief Executive Officer, Company Secretary or Financial Controller of the Company.
5.2 The Company shall not be liable for any costs or damages whatsoever (including consequential losses or other indirect losses (including loss of profits)) arising from telephone calls or any malicious acts resulting from these telephone calls made in a malicious or otherwise manner, made through the telephone system either from within the Customer’s premises by the Customer or its employees or agents or via an external source getting access and where appropriate dialling out.
5.3 If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Agreement and the remainder of the provisions in question shall not be affected thereby.
5.4 Each of the Company and the Customer undertakes to the other to keep confidential all information (whether written or oral) concerning the business and affairs of the other that it obtains or receives as a result of the discussion leading up to the entering into of the Agreement or its performance except for such information which is:
5.4.1 Trivial or obvious; or
5.4.2 Already in its possession other than as a result of a breach of this Clause: or
5.4.3 In the public domain other than as a result of breach of this Clause.
Each of the Company and the Customer undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance of these provisions by its employees agents and sub-contractors.
5.5 The Company may amend these Terms and Conditions for Support by notice in writing to the Customer and the Terms and Conditions for Support as amended from time to time shall prevail over the terms and conditions of any Order submitted by the Customer for Support to be provided by the Company.
5.6 (a) These Terms and Conditions for Support and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales
(b) Each party irrevocably agrees that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim that arises out of or in connection with these Terms and Conditions for Support or their subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit the right of the Company to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
6.1 Notwithstanding anything else contained herein the Agreement may be terminated:
6.1.1 By the Company forthwith on giving notice in writing to the Customer if the Customer shall fail to pay any sum due under the terms of the Agreement or any other agreement between the Company and the Customer (otherwise than as a consequence of any default on the part of the Company) and such sum remains unpaid for 14 days after written notice from the Company that such sum has not been paid (such notice to contain a warning of the Company’s intention to terminate); or
6.1.2 By either party forthwith on giving notice in writing to the other if the other commits any material breach of any term of the Agreement (other than any failure by the Customer to make any payment hereunder in which event the provisions of paragraph (i) above shall apply) and (in the case of a breach capable of being remedied) shall have failed within 30 days after the receipt of a request in writing from the other party so to do to remedy the breach (such request to contain a warning of such party’s intention to terminate); or
6.1.3 By either party forthwith on giving notice in writing to the other if the other party shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction); a court of competent jurisdiction shall make an order to the effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall become bankrupt or shall cease or threaten to cease to carry on business.
6.2 For the avoidance of any doubt it is confirmed that the Agreement shall remain in force notwithstanding that there is any change in control in the Customer during the term of the Agreement. For the purpose of the Clause the term “change in control” shall be interpreted in accordance with Section 416 of the Income and Corporation Taxes Act 1988.
6.3 Any termination of the Agreement howsoever occasioned shall not effect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
6.4 Upon the termination of the Agreement, for any reason otherwise than by the Customer in accordance with Clause 6.1.1 above the Customer shall not be entitled to reimbursement of any pro rata part (calculated on a time basis) of any support charges paid in advance.
6.5 Any notice required to be given hereunder shall be served by posting the same by pre-paid Special Delivery Guaranteed post (or its equivalent) to the registered office of the party to be served (in the case of a company) or to the installation address specified overleaf (in the case of an individual firm or partnership). Any notice served hereunder shall be deemed to have been received 48 hours after posting. In proving service by post it shall only be necessary to prove that communication was contained in an envelope which was duly addressed and posted in accordance with this Clause.
END All rights reserved. © du Pré Ltd June 2017
TERMS AND CONDITIONS FOR TELEPHONE SERVICES
These Terms and Conditions for Telephone Services are in addition to du Pré Ltd’s Terms of Business, and set out the terms and conditions on which du Pré Ltd provides Telephone Services (as defined below). By using Telephone Services you agree to the following Terms and Conditions.
1 Definitions and Interpretation
(a) The following definitions apply in these Terms and Conditions:
‘Access Code’ means the indirect access code that allows you to access the Calls Service without using Select.
‘Act’ means the Telecommunications Act 1984, as amended or replaced from time to time.
‘Calls Service’ means the fixed line calls service provided to you from time to time by the Company enabling you to make calls over the Fixed Line Network using the Access Code or Select and use any related services, or the Mobile Services provided to you from time to time by the Company enabling you to make calls over the Mobile Network.
‘Charges’ means the charges payable by you to us in consideration of the provision of the Telephone Services.
‘Circuit Rental Service’ means the service we may agree to provide you to allow you to rent a telecommunications circuit and shall include any other facilities that we agree to provide to you under this Contract.
‘Commencement Date’ subject to clause 10(b) is:
(i) the date the Telephone Services is first activated on the Fixed Line Network and made available to the Customer
(ii) for telephony related products the first date the system is connected to the network whichever is the earlier
(iii) for circuits, software and any 3rd party product or service supplied by the Company the date of provision or supply
(iv) for IT products one calendar month after the date of the first shipment to the User.
‘Company’ or ‘we’ or ‘us’ or ‘our’ means du Pré Ltd.
‘Contract’ means the contract application by the Customer or on the Customer’s behalf, and these Terms and Conditions as amended from time to time.
‘Customer’ or ‘you’ or ‘your’ means:
(i) in the case of a sole trader, the person; or
(ii) in the case of a company (limited or otherwise), the company; or
(iii) in the case of partnership, all the partners of the partnership:
whose details are inserted on the contract application forming part of this Contract.
‘Customer Support’ means the du Pré Customer Support department
‘Equipment’ means any equipment used by the Customer in order to obtain the Telephone Services.
‘Fixed Line Network’ means the telecommunications network(s) over which we provide the Telephone Services.
‘Initial Term’ means subject to clause 10(b) the term as stated on the Order Form commencing from the Commencement Date.
‘In Writing’ means that where the Customer is required to notify the Company In Writing, the Customer must despatch the communication using pre-paid Special Delivery Guaranteed post (or its equivalent) to the Company’s registered address.
‘IP Rights’ means all intellectual property rights, numbering ranges, patents, trademarks, service marks, design rights (whether capable of registration or otherwise), know how, copyright (including future copyright) and other similar rights and obligations whether capable of registration or not in any country.
‘Line Rental Service’ means the service we may agree to provide you to allow you to rent access to the main telephone line and shall include any other facilities that we agree to provide to you under this Contract (such as call forward).
‘Order Form’ means the Customer Order Form on which you ordered the Telephone Services.
‘Personal Data’ means any personal data (as defined in the Data Protection Act 1998) of the Customer which is subject to or intended to be subject to processing by the Company or its Third Party Operators for or on behalf of the Customer.
‘Process’ has the meaning given in the Data Protection Act 1998 and ‘process’ and ‘processed’ shall be construed accordingly.
‘Select’ means our carrier pre-selection access method, which allows you to access the Calls Service without dialling the Access Code.
‘Telephone Services’ means the Calls Service(s), Circuit Rental Service(s), Line Rental Service(s), and/or any other service(s) we agree to provide to you.
‘Terms and Conditions’ means the Terms and Conditions for Telephone Services.
‘Third Party Operator’ means the operator of any telecommunications network or system over which we provide the Telephone Services.
(b) Clause headings are included in this Contract for ease of reference only and shall not affect the interpretation or construction of this Contract.
(c) Where the context so admits or requires, words denoting the singular include the plural and vice versa.
(d) References to statutory provisions shall be construed as references to those provisions as replaced, amended or re-enacted from time to time (whether before or after the date of this Contract) and shall include any provisions of which they are re-enactments (whether with or without modification) and any subordinate legislation made under such provisions.
(e) References in this Contract to any party includes references to its successors in title and assigns. Unless otherwise expressly stated, references in this Contract to the parties means the Company and the Customer and not any Director.
(f) This Contract contains provisions which relate to a wide range of Equipment and/or Telephone Services provided by us. Where any particular provision in these Terms and Conditions is not relevant to the Telephone Services and/or Equipment we have agreed to supply to you that particular provision shall be deemed to be deleted from these Terms and Conditions, which shall be construed accordingly
2 When this Contract begins
(a) The Contract begins when we confirm to you in writing our acceptance of your application, or on the Commencement Date, whichever is the sooner.
(b) The Customer warrants to the Company that the Customer has not been induced to enter this Contract by any prior representation whether oral or in writing, except as specifically contained in this Contract, and that the Customer waives any claim for breach of prior representations.
(c) The Customer hereby confirms that:
(i) in the case of a sole trader, he or she is at least 18 years; or is
(ii) the director or person who agreed or completed the contract application forming part of this Contract and has the authority to act on behalf of the Customer and bind the Customer to this Contract; and
(iii) all details of the Customer which were inserted on that contract application by that director or person acting on the Customer’s behalf are accurate and up-to-date; and
(iv) by completion of the contract application, the Customer agrees to be bound by this Contract.
(a) You may not assign, transfer, mortgage, charge, sub-contract or otherwise deal with any of your rights or obligations under this Contract, whether in whole or part, without our prior written permission.
(b) We may, at any time, obtain an alternative provider to provide the Telephone Services to you or otherwise assign, transfer, mortgage, charge, sub-contract or otherwise deal with any of our rights or obligations under this Contract, whether in whole or part. You agree to the assignment of our rights and obligations under this Contract to that alternative provider, provided that we give prior written notice to you and the level of service that you experience is not significantly reduced as a result, and authorise us to execute on your behalf any documents necessary to give effect to any such assignment. In addition, you will where requested by us enter into a novation of this Agreement in favour of any purchaser of our business and/or assets of the Company.
4 The services we provide
(a) We shall provide the Telephone Services to you in accordance with this Contract and any other instructions we give you from the Commencement Date.
(b) We will notify you when you will be connected to the Telephone Services. If you elect to apply for the Line Rental Service and already receive line rental services from another provider, this other service will continue until the transfer to our service is complete unless your other provider agrees that it can be done earlier.
(c) The Telephone Services are made available to you on the condition that you do not, unless agreed with the Company beforehand:
(i) re-supply, resell or otherwise make either of the Telephone Services available to any person on a commercial basis; or
(ii) use the Telephone Services or allow the Telephone Services to be used for any purposes outlined in clause 5(c) below.
(d) We may select and at any time change any carrier or other service provider for the purposes of providing the Telephone Services, and you authorise us to give all notices, nominations and other authorisations that are necessary for us to provide, the Telephone Services to you.
(e) Whilst we provide the Telephone Services to you, you authorise us to act on your behalf in all dealings with any Third Party Operator in connection with any matter that enables us to provide or to continue to provide you with the Telephone Services.
(f) We cannot guarantee that the Telephone Services will be free of faults or interruptions, timely or secure to the extent the Telephone Services may be affected by events or factors we cannot control, such as lack of network capacity, physical obstructions or atmospheric conditions.
(g) We shall provide the Telephone Services with reasonable skill and care. If you do experience a problem or suspect a fault you should first telephone Customer Support. Unless you receive the Line Rental Service, we shall not in any circumstances be responsible for any call-out or other charges you incur to BT or any other third party network operator as a result of any problem or fault with the Calls Service. If you are receiving our Line Rental Service then the provisions of clause 13 will apply.
(h) If you have a complaint regarding the Telephone Services you may contact Customer Support.
(i) It is your responsibility to ensure the compatibility of the Telephone Services with any monitored alarm system you may have and you should check this with your monitored alarm system provider. If there is an interruption to the provision of either of the Telephone Services under this Contract this will affect the operation of your monitored alarm system if you are a Select customer. We do not accept any liability in connection with your use of a monitored alarm system with the Telephone Services, except for liability for death or personal injury caused by our negligence.
(j) Certain services which are provided by Third Party Operators may not be compatible with the Telephone Services. You should be aware that such services may be automatically removed from your line during set up and may no longer be available to you.
(k) The Company shall provide and make available the Telephone Services to the Customer using reasonable skill and care. The Company will use its reasonable endeavours to facilitate any arrangements with third parties that are required in order to provide and make available the Telephone Services but the Customer acknowledges that the Company has no control over such third parties and the Company shall not be liable for any act or omission of such third parties.
5 Your Use of the Telephone Services
(a) You must:
(i) use the Telephone Services in accordance with applicable law and regulations (including without limitation the relevant provisions of the Act);
(ii) ensure that anyone who uses the Telephone Services we provide to you does so; and
(iii) hold and continue to hold any licences and/or other authorisations and to comply with any relevant legislation regulation to connect to the Fixed Line Network;
in accordance with this Contract, and any other instructions we give to you from time to time which may include giving us access to your premises and other co-operation reasonably required by the Company in connection with the provision of the Telephone Services.
(b) You must at all times keep any user names, passwords, logins or PINs for your account confidential and secure, and you must tell us immediately if any user names, passwords, logins or PINs are notified lost or disclosed to any unauthorised person. You acknowledge that we may at our sole discretion, amend, add services to, or disclose any information in connection with, your account upon request from anyone who correctly quotes your password.
(c) You shall not use, nor allow any other(s) to use, the Telephone Services:
(i) for any improper, immoral or unlawful purpose;
(ii) to send a communication which is, or is intended to be, a hoax call or which is spiteful, indecent, defamatory, offensive, abusive, obscene or menacing;
(iii) to violate or infringe any rights of, or to cause unwarranted inconvenience or anxiety to, any person firm or company (including but not limited to rights of copyright, confidentiality or intellectual property rights of third parties);
(iv) in such a way that may interfere with damage corrupt or affect the operation or quality of the Telephone Services, the Fixed Line Network or any telecommunications system used to provide the Telephone Services;
(v) in any other way which is in breach of the Act (or places the Company in breach of the Act) or any other instruction or direction of the Company;
(vi) in a manner contrary to the Company’s acceptable use policy available on the Company’s website from time to time; or
(vii) fraudulently or illegally, or in a manner which is likely to result in the Company or its Third Party Operator having any liability.
(d) If you do not or any other person using the Telephone Services with your permission does not comply with any provision of this clause 5, you will defend hold harmless and indemnify us for any claims, losses, damages, costs, liabilities and expenses (including, without limitation, any legal costs and expenses) which we may suffer or incur as a result of any such non-compliance and the Telephone Services may be suspended or disconnected if you continue to breach the provisions of this clause 5. If you discover that someone else has used the Telephone Services supplied to you without your or our permission, you should notify Customer Support and the police at the first possible opportunity. You will be held liable for any losses suffered or incurred as a result of such unauthorised use and you accept this risk.
(e) If you want to connect equipment to the Fixed Line Network other than using a main phone socket, you must obtain our written permission and you agree that we may request permission from a Third Party Operator in order for us to make any decision.
(f) You will be liable for any and all damage to Equipment and/or the Fixed Line Network caused by the malfunction of failure of equipment or facility provided by you or your agents employees and sub-contractors. You agree that you will not connect any equipment to the Fixed Line Network that may harm the Fixed Line Network or the equipment of other users of the Fixed Line Network. If you do connect such equipment, you must disconnect it immediately or allow us to do so at your expense. You should contact Customer Support if you are in doubt as to what equipment may be connected to the Fixed Line Network.
(g) You agree that any telephone number supplied to you is personal to you but that you do not own that telephone number. You may not sell, licence, or agree to transfer any number supplied to you and we may suspend the Telephone Services if we have a reasonable belief that you have done the same.
(h) If it is necessary for a Third Party Operator to supply you with Equipment in order to access the Telephone Services then:
(i) such Equipment will remain the sole property of that Third Party Operator and you will not create or allow any charges liens pledges or other encumbrances to be created over it;
(ii) you agree that you will prepare your premises in accordance with our or the Third Party Operator’s reasonable instructions, and advise us in writing of any Health and Safety rules and regulations and any reasonable security requirements applicable at the premises;
(iii) you agree to obtain all necessary consents licences or waivers, including for example, consents for any necessary alterations to buildings, permission to cross other people’s land or permission to put any Equipment on their property;
(iv) you agree to provide a suitable place and conditions for the Equipment including connection points to the Fixed Line Network and electricity;
(v) you agree to indemnify us for and insure us against any losses or damages which we may suffer or incur as a result of any loss or damage affecting the Equipment unless any such loss or damage is caused by fair wear and tear;
(vi) you will not move, alter, modify, relocate, or in any way interfere with the Equipment (including having it repaired or serviced except by an authorised Company representative) and you will not remove, tamper with, or obliterate any words or labels on it; and
(vii) you will use the Equipment only for the purpose of receiving the Telephone Services and in accordance with the Company’s reasonable instructions from time to time and/or any software licence that may be provided with it.
(i) For regulatory or operational reasons, we or Third Party Operators may need to change your phone number or the codes used for the Telephone Services. We will give you as much notice as possible of this.
(j) If you are a Line Rental Services customer and elect to use another provider for some or all of your Calls Service we may at our sole discretion decide to:
(i) bar your use of indirect access codes,
(ii) charge you a higher fee for your use of the Line Rental Service,
(iii) disconnect the Line Rental Service; or
(iv) suspend the Telephone Services.
(k) The parties acknowledge that the Company and its Third Party Operators act as ‘data processors’ (as defined in the Data Protection Act 1998 (‘DPA’)) in respect of and in connection with but not limited to any administration, provisioning, billing and reconciliation, verification of customer identity and solvency, maintenance support and product development, fraud detection and prevention, sales revenue and customer analysis and reporting, as well as call recordings made and stored by the Customer using the Services, and this processing may include intra-group transfers and transfers to entities in countries outside the EEA.
(l) Definition used in this clause 5(l) shall have the same meaning as in the DPA. In relation to ‘personal data’ of which the Customer is the ‘data controller’ and which the Company and its Third Party Operators ‘process’:
(i) The Company warrants that the Company has in place now and will on a continuing basis take all appropriate technical and organisational measures against unauthorised and unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(ii) The Company will act only in accordance with the Customer’s instructions, provided that they are reasonable and in accordance with the law.
6 Charges, Payment and Fair Use
(a) We will invoice the Customer for the Telephone Services in accordance with the relevant terms, tariffs, rules and Charges applying at the time the Telephone Services is used.
(i) We may vary any Charges and/or charge to the Customer any taxes or duties imposed in relation to the Telephone Services at any time by giving the Customer notice. The Customer can contact Customer Support and confirm details of any price change at any time. We will give our Customers at least 5 (five) days’ notice before any price change under this clause 6(b) takes effect;
(ii) We operate a fair use policy on all call bundles agreed for National, Regional, Local and Mobile calls in the UK on the basis of reasonable use is 500 minutes per month per seat;
(iii) If your total usage exceeds the total allocated amount, we may at our absolute discretion change the usage bundle to reflect usage or charge for calls over and above the fair usage policy at the published tariff rate for those calls. In the event of misuse we reserve the right to terminate the call bundle tariff giving 30 (thirty) days’ notice and implement a charge per use policy based on the standard published tariff;
(iv) Our fair use policy is implemented in order to ensure that our network offers a reliable and quality service to all our customers. We reserve the right to modify the above fair use policy on 30 (thirty) days’ notice.
(c) You may at any time request a change to the Telephone Services (including without limitation a request to cancel a product or service) which request may be only accepted by us In Writing. Any agreed change may be queued to take effect at the end of your current billing cycle. Your next bill will reflect any agreed change and you will be charged for that entire current billing cycle notwithstanding such change.
(d) All Charges are subject to any applicable UK tax or duty, including Value Added Tax, at the prevailing rate.
(e) The Customer accepts that:
(i) our records are conclusive evidence of use of the Telephone Services by the Customer and the Charges incurred as a result;
(ii) any use of the Telephone Services by any person is deemed to be authorised by the Customer; and
(iii) we will invoice the Customer, and the Customer is responsible, for payment of any Charges arising from any such use, even if the same are incurred as the result of fraudulent or unauthorised use of Services by its employees, contractors, agents or any other person or entity (except that the Customer shall not be responsible for fraudulent or unauthorised use by the Company’s employees, contractors or agents). The Customer must notify Customer Support at the first possible opportunity that someone is using the Telephone Services without the Customer’s permission or there is clear evidence of fraud.
(iv) We may but are not obliged to detect unauthorised or fraudulent use of the services.
(v) We reserve the right to invoice the Customer on a cost-plus basis (adding 15%) for any charges levied by a Third Party Operator or service provider to which it is exposed as a result of the Customer’s actions.
(f) We will send the Customer invoices for the Telephone Services on a monthly basis. We may vary invoicing frequency or demand payment at any other time by giving the Customer prior written notice. We will endeavour to bill you for use of the Calls Services supplied by the Company to the service number(s) nominated by you within 120 (one hundred and twenty) days of such use.
The Customer acknowledges that invoices for the Telephone Services may depend on the receipt of invoicing information from other parties and any delay in issuing an invoice to the Customer will not affect the validity of the Charges included in the invoice. If you require a duplicated bill, you agree to pay us an administration fee of £10 for each requested duplicate bill.
(g) Unless we have agreed otherwise, payment is due for any use of the Telephone Services and the Customer must pay in full any invoice for Charges (whether disputed or not) by the due date specified in the invoice without any set-off or deductions or, in the absence of any specified due date on the invoice, within 14 (fourteen) days of the date of the invoice.
(h) The Customer agrees to pay invoices by way of direct debit mandate. Payment other than by direct debit mandate will attract a surcharge. In addition a deposit may be required at the sole discretion of the Company’s Chief Executive Officer.
(i) If the Customer does not pay any invoice on time, we may:
(i) suspend or terminate the Customer’s access to the Telephone Services; and/or
(ii) charge the Customer interest on the overdue amount(s) at the rate of 3% per annum above Lloyds Bank plc base rate. Interest is calculated and accrues daily: and/or
(iii) charge a £10 administration fee to cover late payment costs.
(j) If the Customer disputes the Charges, it must notify us In Writing of the dispute within 7 (seven) days of invoice (providing us with sufficient detail to investigate the matter and determine whether the Customer’s dispute is genuine and reasonable). If we determine (at our sole discretion):
(i) that the Customer’s dispute is not genuine or reasonable, or where notification is not made before the due date, the Customer must pay the invoice in full in accordance with clause 6(g) above, plus any interest charged on the full invoiced sum in accordance with clause 6(i) above; or
(ii) that the Customer’s dispute is genuine and reasonable, the Customer must pay the undisputed part of the invoice in accordance with clause 6(g) above and we will both use all reasonable endeavours to resolve the dispute as quickly as possible. If any such dispute is resolved:
(1) such that the Customer still owes us money, the Customer must pay all sums owed to us within 14 (fourteen) calendar days of resolution of the dispute, plus interest in accordance with clause 6(i) above from the date payment of the disputed invoice was due; or
(2) such that we owe the Customer money, we will (at our sole discretion) repay or credit on the next invoice sent to the Customer following resolution of the dispute any amount overpaid by the Customer, plus any interest paid thereon under clause 6(i) above. We will each bear our own costs in resolving any dispute under this clause 6(j).
(k) If the Customer causes any delay to the installation of Telephone Services with reference to clauses 5(a) (iii) and 5(h) (ii) (iii) (iv) and (vi) the Company may at its sole discretion begin invoicing for the Telephone Services from the date the delay was caused.
7 Credit Limit / Security Payment
(a) We may, at our sole discretion and at any time, impose a credit limit on your account and/or require payment of a security deposit or interim payment by you.
(b) Any credit limit imposed can be amended without prior notice. If you exceed any such credit limit:
(i) we may demand immediate payment of the Charges and/or suspend the Telephone Services; and
(ii) you will still be responsible for all Charges incurred including those exceeding the credit limit.
(c) If at any time we require you to pay a security deposit under clause 7(a) above, we may:
(i) suspend provision of Telephone Services until we receive payment of the security deposit; and
(ii) at any time apply the security deposit (once paid) to meet any cost, loss or liability incurred as a result of any failure by you to comply with these terms or to pay any amount you owe to us.
8 Our Rights to Suspend or Disconnect the Telephone Services
(a) We can at our discretion suspend or disconnect your access to the Telephone Services:
(i) if we are entitled to under clause 5(d), 5(g), 5(j), 6(i), 7(b), or 7(c);
(ii) if we are required to do so by law, the Government, an emergency service organisation or any other competent body or authority;
(iii) for repairs, maintenance or improvement;
(iv) if we have good reason to suspect fraudulent activity or misuse of the Calls Service or any other breach by you of this Contract; or
(v) if we have reasonable grounds to consider that the customer is or has been involved or connected with criminal activity or other activity which is or maybe detrimental to the Company or its Third Party Operators.
(b) We will endeavour to inform you first if we are going to suspend or disconnect your access to the Telephone Services.
9 Changing the Contract
(a) This clause 9 applies to all changes to this Contract, except changes to Charges which are dealt with in clause 6 above.
(b) Subject to clause 9(a) above, we may vary these Terms and Conditions at any time and, where reasonably practicable, giving you prior notice. We will only do this if we have a valid reason, for example to reflect changing legal, regulatory or business requirements.
(c) We reserve the right to remove any product or service if that product or service remains unused for a period of 90 (ninety) consecutive days.
10 Ending the Contract
(a) This Contract shall commence on the Commencement Date and shall continue thereafter as follows:
(i) until expiry of the Initial Term if notice to terminate on that date is given by the Customer not less than 90 (ninety) days’ In Writing before the expiry of the Initial Term; or
(ii) (if no such notice is given before expiry of the Initial Term) this Contract will continue automatically for further 12 month terms;
(iii) until notice to terminate is given by the Customer not less than 90 (ninety) days before the end of the current term
(iv) save that the Customer may not terminate the Contract if any Equipment connected to the Telephone Services is subject to any hire or hire purchase agreement or leasing agreement or agreement for payment on deferred terms or any other agreement where the Company or any third party retains title to the Equipment.
(b) If the Charges are changed by mutual agreement between the parties the Commencement Date shall be deemed to be the date the new Charges rate is applied and the Initial Term shall recommence.
(c) Notwithstanding 10(a), if you terminate the Telephone Services before the expiry of the Initial Term (or any subsequent term as the case may be), you are liable to pay all Charges relating to such term.
(d) We may terminate this Contract at any time on giving 30 (thirty) days written notice. We may also (at our discretion) terminate or suspend this Contract without notice if:
(i) we are directed by a competent authority or regulatory body to cease the provision of any of the Telephone Services; or;
(ii) we are unable to provide the Telephone Services generally for any other reason beyond our control; or
(iii) you have failed to comply with any provision of this Contract or other reasonable direction or notice provided by us at any time; or
(iv) you are the subject of any bankruptcy or insolvency proceedings.
(e) Either of us may terminate this Contract immediately, on notice, if the other commits a material breach of this Contract and fails to remedy the breach within 30 (thirty) days of a written notice so to do.
(f) If this Contract ends for any reason, or if you elect to use another provider for some or all of your Calls Service:
(i) we will terminate your access to the Telephone Services; and
(ii) we will send you a bill for;
(1) all unbilled Charges for the Telephone Services; and
(2) all Charges for the remainder of the Initial Term or subsequent term in accordance with clause 10(a); and
(3) all Charges for telephone calls you would have made during the remainder of that term (this charge to be based on previous telephone use or committed spend, whichever is the greater);
and you must pay the bill by its due date.
(iii) neither you nor the Company shall lose any rights accrued under this Contract prior to it ending.
(g) If we suspend or disconnect the Line Rental Service pursuant to clause 8 or this Contract ends pursuant to this clause 10 then you will no longer have access to our Telephone Services and you will need to make alternative arrangements with another Telephone Services provider.
(h) Notwithstanding any other provision of the Contract, you must immediately cease to make use of any IP Rights that belong to the Company and destroy or return to the Company (at the Company’s option) all material upon which such IP Rights exist.
(j) On termination of a Telephone Service you will allow the Company, or the Company’s nominated third party, access to the site to remove any Equipment.
11 Warranty and Limitation of Liability
(a) We warrant that we will use our reasonable endeavours to provide the Telephone Services in all material respects in accordance with our obligations under this Contract;
(b) Except as stated in clause 11(a), we make no warranty or representation with respect to the Telephone Services and any Equipment provided by us, and, to the greatest extent permitted by law, either express or implied, we exclude all implied warranties relating to merchantability, satisfactory quality, suitability or fitness for a particular purpose.
(c) The Company’s maximum liability to the Customer, however arising under this Contract, shall be limited to the amount paid by you to the Company during the year preceding the breach, in relation to any event or series of related events.
(d) Nothing in this Contract shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their agents or employees, or fraudulent misrepresentation.
(e) The Company shall not be liable under any circumstances to the Customer, or any third party, in contract, tort (which includes negligence and breach of any statutory duty), for any loss of revenue, business use, goodwill, anticipated savings, profits, opportunity, reputation, wasted expenditure or data being lost or corrupted or any other financial loss whatsoever or any loss or damage arising from the consequences of the viruses received by you via the Telephone Services or any Equipment or software provided by us, whether direct, indirect or consequential, or for any other indirect or consequential loss of whatever nature, howsoever arising in relation to the use of the Telephone Services or Equipment or any failure or error or default by the Company in the provision thereof, or otherwise in connection with this Contract. Save as otherwise set out herein, to the extent allowable at law, the Company will not be liable due to loss of confidentiality caused by the use of the Telephone Services.
(k) The Company shall not be liable under this Contract for the acts, omissions and/or failures of the Customer, other licensed operators, or third parties.
(l) The Company and the Customer acknowledge and agree that the allocation of risk and liability contained in this Contract is reasonable in all the circumstances, having regard to all relevant factors including the nature of the services, the negotiated charges and the ability of the Company and the Customer to rely on their own respective insurance arrangements and other resources to bear or recover any losses or damage incurred.
(m) The Customer acknowledges that neither the Company nor its Third Party Operator monitors the content of communications transmitted on the Fixed Line Network and shall have no responsibility or liability for the same.
12 Intellectual Property Rights and Indemnity
(a) Any patents, design rights, know-how, copyrights, trademarks, the right to use software and all other intellectual property or other proprietary rights (whether registered or unregistered) worldwide (‘Intellectual Property Rights’) relating to the Telephone Services or otherwise created or arising during the development of the Telephone Services (including, without limitation, any software provided to you) belong to us or to a relevant third party and no rights in such Intellectual Property Rights will be transferred to you.
(b) You will defend hold harmless and keep the Company fully and effectively indemnified against any action, liability, claim, demand, damage, proceeding, costs (including legal costs), losses and expenses in any jurisdiction suffered or incurred by us arising from, or which is directly or indirectly, related to:
(i) infringement of any third party’s Intellectual Property Rights in connection with the use of the Telephone Services or the Company’s user guide; and
(ii) your misuse of the Telephone Services, whether in breach of this Contract or otherwise; and
(iii) your breach or non-observance of any term of this Contract; and
(iv) any breach or inaccuracy in any of your representations or warranties.
(c) You agree that you will not, either directly or indirectly, infringe our Intellectual Property Rights or other rights (or any of our licensors’ rights) in using the Telephone Services or otherwise in the course of performing your obligations under this Contract.
13 Faults with the Line Rental Service
(a) If you suffer or suspect a fault with the Line Rental Service then you should contact Customer Support.
(b) You agree that you will be responsible for all charges that you incur or we incur on your behalf in repairing any fault with the Line Rental Service unless the fault is the result of any act or omission of us or a Third Party Operator or is due to fair wear and tear.
(c) If we decide that an engineer should be sent to your premises in connection with a fault and that engineer arrives within an agreed appointment time, you will incur a fee based on the cost of a site visit if you are not available at the agreed time.
(d) If an engineer attends a fault and decides that the fault is with equipment owned by you then you will be charged for any work carried out and the engineer may disconnect the equipment.
14 Events Beyond our Control
We shall not be responsible for any delay or failure to carry out our responsibilities under this Contract for reasons beyond our reasonable control, including without limitation for example acts of God, exceptionally severe weather, industrial disputes, failure or shortage of power supplies, act of terrorism or riot, war, default or failure of a third party (including any network operator or service provider) or their telecommunications systems or government actions.
15 Using personal information
(a) Information you provide or which we hold about you (whether or not under our contract(s) with you) may be used by us to:
(i) identify you when you contact us;
(ii) help to prevent and detect fraud or loss.
(b) We may allow other people and organisations to use information we hold about you:
(i) to provide services you have asked for;
(ii) to provide information for legal or regulatory purposes; or
(iii) as part of current or future legal proceedings.
(c) We may monitor and record communications with you (including phone conversations and e-mails) for quality assurance and compliance.
(d) We will hold information on your phone use, including the numbers called, date, time, duration and cost of calls, together with information about your location, for a minimum of two years. We will use this information to manage the Telephone Services and provide you with any other services you may ask for. Where you have previously shown your consent, we may use this information to provide you with information about other products and services that we believe will be of value or interest to you. We will keep information for as long as is necessary to provide services you have asked for and until charges for the service cannot be lawfully challenged.
(e) If a person (including, if the Customer is a corporate body, any key individuals involved in that body) provides false or inaccurate information and we suspect fraud, this is also recorded. This information may be used by us to:
(i) help make decisions about credit and credit-related services for you;
(ii) carry out statistical analysis about credit, insurance and fraud.
We, and other credit and insurance organisations, may also use technology to detect and prevent fraud.
(f) If you give us information on behalf of someone else, you confirm that you have given them the information set out in this clause, and that they have not objected to their personal information being used in the way described in this clause. If you give us sensitive information about yourself or others, you agree (and confirm that the relevant subject of the information has agreed) to us processing this information in the way set out in this clause.
16 Third Party Rights
A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
A Third Party Operator may rely upon and enforce the terms of this Contract which refer to a Third Party Operator against the Customer.
If at any time we do not require you to comply with any part of this Contract, this will not prevent us from doing so in the future.
If any part of this Contract (including any provision in which we exclude or limit our liability to you) is deemed unenforceable by any Court or other competent body or authority, the enforceability of any other part of this Contract will not be affected. The Company reserves the right to replace any such part with a similar term which is.
19 Notices and Communications
Any notice required to be given hereunder shall be served by posting the same by pre-paid first class recorded delivery post to the registered office of the party to be served (in the case of a company) or to the installation address specified (in the case of an individual firm or partnership). Any notice served hereunder shall be deemed (in the absence of evidence of earlier receipt) to have been received 48 hours after posting. In proving service by post it shall only be necessary to prove that communication was contained in an envelope which was duly addressed and posted in accordance with this clause.
20 Entire Agreement
This Contract represents the entire agreement between you and us in relation to the Telephone Services and shall supersede all previous agreements.
(a) These Terms and Conditions and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
(b) Each party irrevocably agrees that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim that arises out of or in connection with these Terms and Conditions or their subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit the right of the Company to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
(c) You confirm that you have full contractual capacity to agree to the agreement.
(d) Any amendment of this Agreement or written permission to be given under this Agreement by the Company will not be binding unless confirmed in writing by the Chief Executive Officer, Company Secretary or Financial Controller of the Company which may be given by notice to you at any time.
MOBILE SERVICES – Addendum
22 About your agreement
(a) It is your responsibility to make sure the SIMs are only used to access Services as permitted in this agreement.
(b) This agreement does not cover the supply of Handsets. The manufacturers of Handsets are not related to us. Any terms relating to Handsets will be given to you separately.
23 Variations to your agreement or prices
We may vary any of the terms of your agreement on the following basis, and we will let you know at least one month in advance if we decide to:
(a) discontinue the Services; or
(b) make any variations to your agreement which are likely to be of detriment to you; or
(c) increase the fixed periodic charges for the Services (if applicable) by an amount which is more than the percentage increase in the Retail Prices Index Figure (or any future equivalent) in any twelve month period.
24 What we will provide for you
A phone number and SIM
(a) We will open an account for you and provide you with a SIM and a phone number (and we may agree to provide you with additional SIMs and phone numbers on your request).
(b) Our network provider or its MNO owns each SIM and each SIM remains their property at all times. You are being allowed to use the SIM by us on a limited licence to enable you to access Services, in accordance with the terms of this agreement.
We or they may recall the SIM(s) at any time for upgrades, modifications, misuse or when your agreement ends. You can only use our SIM to obtain Services from us.
(c) Each SIM may only be used in Handsets which are enabled for Services and are authorised by us for Connection to our network. Any attempt to use the SIM in other Handsets may result in serious damage to the Handset and may prevent you from being able to use it, including the making of emergency calls. In these instances, we, our network provider, or its MNO, are not responsible for any such damage or usage problems.
(d) Handsets which can be used to access Services may be locked to the network. The software in the Handset and all intellectual property rights in that software is owned by the Handset manufacturer and you are being allowed to use the software on a limited licence from the Handset manufacturer. During the term of your Agreement for the supply of Services, you must not permit your Handset to be unlocked via any unauthorised manner (i.e., by anyone other than us or the Handset manufacturer). You must contact us if you want your Handset to be unlocked from our network. If you contact us to request that your Handset be unlocked from our network, we will arrange for your Handset to be unlocked in an authorised manner (which may include replacing your Handset with an unlocked Handset, which is the same or similar specification to your Handset) and you must pay an unlocking administration charge. In addition, you must ensure that there are no outstanding amounts owing on your account. Prior to us arranging for your Handset to be unlocked, you must ensure that you back-up or otherwise store separately any of your information or other data on the Handset which you may require, as this may be lost during the Handset unlocking process. We are not responsible for any information or any other data which may be lost during the Handset unlocking process.
(e) Once you are Connected, we will provide you with access to our Services. The Services will include Premium Services, provided you ask for them and we approve, and may also include Age Restricted Services, provided you are 18 or over and you do not show or send any content from the Age Restricted Services to anyone under 18.
(f) You will also be able to upload and send your own content using the Services. You grant us, our network provider, or its MNO, a royalty free, perpetual and worldwide licence to store, transmit or otherwise deal with any content you upload on the Services.
(g) We may:
(i) change or withdraw some, or part, of the Services from time to time. This may be because of changing technologies, obsolescence, new or different product features, changing content providers or the need to remove, replace or modify content; and
(ii) also determine how Services are presented and delivered to the Handset or are otherwise made available to you. We can change the way they are presented, delivered or otherwise made available to you at any time.
Limitation of Services
(h) We will always try to make Services available to you. However, Services are only available within our coverage area (which comprises a video service area and a voice & picture area within the UK). Within this, there may be areas where you do not have access to all Services or where coverage is otherwise limited or unavailable.
Disruption to Services
(i) There may be situations when Services are not continuously available or the quality is affected and so we cannot guarantee continuous fault-free service.
(i) when we, our network provider, or its MNO need to perform upgrading, maintenance or other work on the network or Services;
(ii) when you move outside our video service area whilst you are on a call (in this case calls may not be maintained);
(iii) when you are in areas not covered by our network. In these cases Services rely on other operators’ networks where we have no control; and
(iv) because of other factors outside our control, such as the features or functionality of your Handset, regulatory requirements, lack of capacity, interruptions to services from other suppliers, faults in other communication networks, the weather or radio interference caused by hills, tunnels or other physical obstructions.
25 What you will do in return
Secure your PIN, Passwords and SIM
(a) Our network provider or its MNO owns the SIM and it remains their property at all times, you must ensure that you keep the SIM safe and secure whilst it is in your possession and you must ensure that you are able to return it to us, if required to do so by us at any time, as set out in these terms. There will be a charge for any replacement SIM, unless, it is defective through faulty design or workmanship.
(b) You must keep all PINs and passwords secure and confidential. You are also responsible for the security of your Handset and must ensure that you keep it secure (refer to the Handset manufacturer’s user guide for details of how to keep your Handset secure).
(c) You should immediately change your PIN or password if you become aware that someone is accessing Services on your account without your permission.
Responsible use of Services
(d) You may only use Services:
(i) as laid out in this agreement; and
(ii) for your own personal use. This means you must not resell or commercially exploit any of the Services or content.
(e) You must not use Services, the SIM or phone number or allow anyone else to use Services, the SIM or phone number for illegal or improper uses. For example:
(i) for fraudulent, criminal or other illegal activity;
(ii) in any way which breaches another person’s rights, including copyright or other intellectual property rights;
(iii) to copy, store, modify, publish or distribute Services or content (including ringtones), except where we give you permission;
(iv) to download, send or upload content of an excessive size, quantity or frequency. We will contact you if your use is excessive;
(v) in any way which breaches any security or other safeguards or in any other way which harms or interferes with our network, the networks or systems of others or Services;
(vi) to falsify or delete any author attributions, legal or other proper notices or proprietary designation or labels of the origin or source of software or other content contained in a file that you upload; and
(vii) to use or provide to others any directory or details about customers.
(f) You must always co-operate with us and follow our reasonable instructions to ensure the proper use and security of the Services and your account. You must only use Handsets authorised by us for Connection to our network and also comply with all relevant legislation relating to their use.
(g) We may publish an acceptable use policy which provides more detail about the rules for use of certain Services in order to ensure that use of Services is not excessive, to combat fraud and where Services we may introduce require certain rules to ensure they can be enjoyed by our customers. If we publish a policy, we will let you know – such a policy may be amended from time to time – for instance, if we discover that the Services are being used fraudulently or for fraudulent purposes, or the excessive use of certain Services is causing problems for us, our network provider, or its MNO, its systems or for other users or if we introduce new services which may require certain rules to ensure that such new services can be enjoyed by our customers, again, we will let you know if this happens.
Responsible use of Messaging and Storage Services
(h) While using the Messaging Services, you must not send or upload:
(i) anything that is copyright protected, unless you have permission;
(ii) unsolicited bulk or commercial communications or other unauthorised communications, or knowingly send any viruses; or
(iii) anything that is obscene, offensive, abusive, defamatory, menacing, harassing, threatening or is unlawful in any other way.
(i) We may put limits on the use of certain Services, such as Messaging Services or Storage Services. For example, we may limit the size of messages or storage space.
(j) While we have no obligation to monitor the Messaging Services or Storage Services, if you exceed our use limits set out in our fair use policy, or we are made aware of any issues with your use of these Services, (for example, if we are made aware that you are using Services in any of the ways prohibited in clause 25(h) above) we reserve the right to remove or refuse to send or store content on your behalf.
Responsible use of Age Restricted Services
(k) If you are under 18, you are not permitted to access our Age Restricted Services (if any). If you are 18 or over and you access the Age Restricted Services, you must not show or send content from the Age Restricted Services to anyone under 18. You must also ensure that you have deactivated any access to Age Restricted Services if you let anyone under 18 use your Handset.
Responsible use of Services outside the UK
(l) If you use Services from a country outside the UK, your use of the Services may be subject to laws and regulations that apply in that other country. We are not liable for your failure to comply with those laws or regulations.
26 Our Rights – Intellectual Property
(a) All rights, including copyright in Services and their content, belong to us, our network provider(s), their MNOs, or our licensed sources, such as a content provider. We and they reserve all our and their rights.
(b) The ‘3’ trade mark and other related images, logos and names on the Services are proprietary marks of the Hutchison Whampoa group of companies. We and they reserve all our and their rights.
27 Suspension of Services
(a) We may Suspend any or all of the Services you use without notice if:
(i) we reasonably believe you have provided us with false or misleading details about yourself;
(ii) we advise you that your excessive use of Services (as may be defined in accordance with clause 25(g) above) is causing problems for other users, and you are continuing to use Services excessively;
(iii) we believe your Handset or SIM has been lost or stolen;
(iv) we reasonably believe that you have used Services, the SIM(s) or a phone number for illegal or improper purposes in contravention of our responsible use requirements in clause 25 above;
(v) we receive a serious complaint against you which we believe to be genuine (for example, if we receive a complaint that you are using Services in any of the ways prohibited in clauses 25(e), 25(h) and 25(k). If this happens, we will deal with the complaint in the manner set out in clause 28;
(vi) we are required to suspend your Services by the emergency services or other government authorities; or
(vii) we reasonably believe you have permitted your Handset to be unlocked via any unauthorised manner and/or have not paid any relevant Charges due in contravention of clause 24(d) above.
(b) We may turn off your Messaging Services if they are inactive for an extended period of time – we will let you know before this happens. If we do turn off your Messaging Services we will have no obligation to maintain any of the content in your Messaging Services, or to forward any unopened or unsent messages to you, or anyone else.
(c) If we Suspend any or all of your Services, you will still be able to make emergency calls (unless they have been Suspended at the request of the emergency services).
(d) If your Services are Suspended, we may agree to re-Connect you if you ask us to do so and there may be a re-Connection Charge for this.
28 Ending this agreement and Disconnection of Services
We may end this agreement in the following ways:
(a) because of your conduct.
In the following cases, we may end your agreement immediately and you have to pay all the Charges you owe in accordance with clause 29(b):
(i) if we have the right to Suspend your Services on any of the grounds in clause 25(e) and we believe that the grounds are serious and have not been, or are unlikely to be, rectified;
(ii) if we believe that your use of our Services, are jeopardising the operation of our, our network provider’s, or its MNO’s network, or are of an unacceptable nature;
(b) No network access or Services. We may end your agreement if we no longer have access to other operators’ networks which we need to provide Services, or if we are no longer able to provide Services due to factors beyond our control or because we cease business.
29 Effect of this agreement ending
(a) If this agreement ends, we will close your account and Disconnect you and you will not be able to use Services or make emergency calls.
(b) You must immediately pay all Charges you owe up to the date the agreement ends. If we end the agreement due to your conduct or if you end your agreement within the Minimum Term, the Charges will include a Cancellation Fee.
Limits on the liability of our Network Operator and its MNO
(a) Except as set out in clause 30(b):
(i) all other terms, conditions and warranties relating to Services are excluded;
(ii) our network operator’s and its MNO’s, entire liability to you for something they do or don’t do will be limited to £3,000 for one claim or a series of related claims; and
(iii) our network operator and its MNO, are not liable for any loss of income, business or profits, or for any loss or corruption of data in connection with the use of Services. Our network operator and its MNO, are not liable for any loss or damage that was not reasonably foreseeable when you entered into the agreement.
(b) Nothing in this agreement removes or limits liability for fraud, for death or personal injury caused by negligence or for any liability which can’t be limited or excluded by applicable law.
Services – Area where we have no responsibility
(c) We will try to ensure the accuracy, quality and timely delivery of Services. However:
(i) we, our network operator and its MNO, accept no responsibility for any use of, or reliance on, Services or their content, or for any disruptions to, or any failures or delays in, Services. This includes, without limitation, any alert Services or virus detection Services; and
(ii) subject to clause 30(b) we, our network operator and its MNO, do not make any representations as to the accuracy, comprehensiveness, completeness, quality, currency, error-free nature, compatibility, security or fitness for purpose of Services or their content. They are provided to you on an ‘as is’ basis; and
(iii) we, our network operator and its MNO, are not providing you with advice of any kind (including without limitation investment or medical advice). Where Services contain investment information, we do not make invitations or offer inducements to enter into any investment agreements.
(d) We, our network operator and its MNO, will not be liable:
(i) for any loss you may incur as a result of someone using your PINs or passwords, with, or without, your knowledge; or
(ii) if we or they cannot carry out our duties, or provide Services, because of something beyond our control.
Others’ content and services – Areas where we have no responsibility
(e) You may be able to use Services:
(i) to upload, email or transmit content using Services; and
(ii) to access content which is branded or provided by others and to acquire goods and services from others. Where we provide you with such access, all we do is transmit the content to you and we do not prepare or exercise control over the content, goods or services. We and our network operator are not responsible or liable in any way for, and do not endorse, any of this content, goods or services.
(f) This clause 30 will apply even after this agreement has ended.
31 Privacy Notice and Your Information
(a) We may pass and share your organisation’s information and user’s personal information to our network provider, or its MNO, other communications service providers and network operators for the detection and prevention of theft and fraud, and to carry out any activities or disclosures to comply with any regulatory, government or legal requirement.
(b) If you use Services from a country outside the UK it may be necessary to transfer your information to that country. If that country is outside of the EEA, the treatment of your personal information may be subject to laws and regulations applying in that country and which may not protect your information to the same standards applying in the UK and the EEA.
(c) You must keep any passwords and PIN numbers relating to your account and the Services safe and secure. You must not share them with anyone else. If you find or suspect that anyone else knows your passwords or PIN numbers, or can guess them, you must contact us immediately and ask us to change them. This is your responsibility.
32 Other terms
(a) If you, or we or our network provider, or its MNO, delay, or do not take action to enforce our respective rights under this agreement, this does not stop you, or us or them, from taking action later.
(b) In exceptional circumstances, a government authority may order the reallocation or change of phone numbers, in which case we may have to change your phone number for Services.
Third Party Rights
(a) This agreement is entered into by us for the benefit of us, our network provider, and its MNO.
(b) For the purposes of the Contracts (Rights of Third Parties) Act 1999 it is intended that our network provider, and its MNO will have the right to enforce any rights conferred on it under this agreement and to that the network provider and its MNO will have the same rights against you as would be available if they were a party to this agreement.
GLOSSARY for Terms of Mobile Services
This ‘Mobile Services from du Pré Ltd – Addendum’ is an addendum to the Terms and Conditions for Telephone Services, from du Pré Ltd.
‘Additional Services’ means additional or supplemental services for which a charge is made in addition to the fixed periodic charges for the Telephone Services (if applicable).
‘Age Restricted Services’ means any Services for use only by customers 18 or over.
‘Cancellation Fee’ means fees charged in accordance with clause 10(f).
‘Charges’ means charges for access to, and use of, Services. These charges may cover (without limitation) fixed periodic charges, usage charges, account administration fees, fees for Connection and re-Connection, a Cancellation Fee (where applicable) and any costs incurred in collecting outstanding payments from you.
‘Connection’ means the procedure by which we give you access to Services. ‘Connected’, ‘Connecting’, and ‘re-Connection’ have corresponding meanings.
‘Damage’ means any accidental, sudden and unforeseen damage to the Handset caused by external means which affects the operational functioning of the Handset.
‘Disconnection’ means the procedure by which we stop your access to Services. ‘Disconnect’, ‘Disconnected’ and ‘Disconnecting’ have corresponding meanings.
‘Handset’ means the device or mobile handset that is authorised by us for Connection to the network which is used to access Services.
‘Messaging Services’ means any email, fax and voicemail Services, text message and multimedia messaging Services, personal information management and other message or communication facilities which let you communicate with others.
‘Minimum Term’ means the minimum fixed term for the supply of Services.
‘MNO’ means the mobile network operator providing network services.
‘Premium Services’ means any Services which are charged at premium rates. You can only access these Services – such as international calling and international roaming – with our approval.
‘Services’ means the services offered by us, including call services, Messaging Services, Storage Services, Age Restricted Services and Premium Services, which we agree to provide for you.
‘SIM’ means a card which contains your phone number and enables you to access Services.
‘Storage Services’ means any Services which offer you storage capacity on the network for storage of content which you access from us.
‘Suspension’ means the procedure by which we temporarily Disconnect your access to the Services. ‘Suspend’ has a corresponding meaning.
END All rights reserved. © du Pré Ltd June 2017