OF SALE AND SERVICES
TERMS & CONDITIONS
DEFINITIONS IN THESE TERMS & CONDITIONS
“Additional Charges” means Charges which may be presented for any additional services outside the scope of any contractual arrangement.
“Business Day” means any and all days between Monday and Friday in any week but excluding bank holidays and public holidays;
“Carrier” means the relevant third party public telecommunications operator or third-party network service provider such as British Telecom;
“Charges” means the charges payable by the Customer for Services supplied by the Company;
“Commencement Date” means the commencement date for the Minimum Term of the Services as specified in the Service Agreement;
“Company” means First M Global Limited, a company registered in England and Wales with company registration number 282070909 whose registered office is 20 Kirkdale Road, London, E11 1HH;
“Connection Date” means the date when the Company’s Carrier is in a position to and has agreed to commence provision of the Fixed Network Services to the Customer;
“Contract” means the agreement between the Customer and the Company for the provision of the Equipment and/or Services incorporating these Conditions and the Service Agreement;
“Customer” means the person, firm or company specified on the Service Agreement and any other person reasonably appearing to act within that person’s, firm’s, or company’s authority;
“Employment Regulations” means any laws in any country in the world implementing the provisions of EC Directives No. 77/187 dated 14 February 1977, 2001/23 dated 12 March 2001 or equivalent or similar regulations that protect the rights of employees on a transfer of a business or undertaking or any laws providing for the automatic transfer of employees on transfer of the whole or part of an undertaking, business or service provision change, including in the United Kingdom the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended or replaced from time to time;
“Equipment” means the equipment documented within the Service Agreement (and also has extended meanings under condition 4.4.2 and condition 5 in the case of and for the purposes of those conditions only);
“Fair Usage Policy” fair usage policy against the supply of data and voice related service, a copy of which is available upon request;
“Fixed Network Services” means the voice and/or data network services more particularly detailed on the Service Agreement to be provided hereunder by the Company to the Customer;
“General Conditions” means the general conditions of entitlement set out in the notification issued by the Director General For Telecommunications, in accordance with section 48(1) of the Communications Act 2003, pursuant to section 45 of said act, as may be amended, modified or replaced from time to time;
“Installation” means the physical installation of Equipment at the Customer’s Site(s); “Installation Services” means services relating to the supply and Installation of Equipment (where applicable);
“Maintenance Services” means the maintenance services more particularly detailed on the Service Agreement (as modified or substituted from time to time) to be provided hereunder by the Company to the Customer;
“Minimum Term” means the minimum contract period applying to each of the Services commencing on the Commencement Date for Maintenance Services or the Connection Date with regard to Fixed Network Services (as the case may be) and expiring on the day at the end of the minimum period set out in the Service Agreement; “Normal Working Hours” means 9.00am to 5.30pm on any Business Day;
“Number” means either (i) such telephone number from within a national number group range (used by the Customer in connection with an End User Service) as may be allocated by the Company to the Customer from time to time (“Company Number”) or (ii) such telephone number not being a Company Number from within a national number group range (used by the Customer in connection with an End User Service) and as may be programmed by the Company for the purposes of making available a Fixed Network Service in respect of such telephone number;
“Service Agreement” means the Service Agreement to which these Conditions are attached or which is expressed to be subject to these Conditions which sets out the details of the order, including (without limitation) the Customer’s details and the Equipment and/or Services to be supplied under the Contract, and constitutes the Customer’s order; “Price” means the price payable by the Customer for the Equipment and Installation Services (where applicable);
“Relevant Laws” means any statute, regulation, by law, ordinance or subordinate legislation which is in force for the time being to which a party is subject; the common law as applicable to the parties (or any one of them); any binding court order, judgment or decree applicable to the parties (or any one of them); and any applicable industry code, policy, guidance, standard or accreditation terms (i) enforceable by law which is in force for the time being, and/or (ii) stipulated by any regulatory authority to which a party is subject, in each case, for the time being;
“Services” means any of the services supplied by the Company including, without limitation, the Installation Services, the Fixed Network Services and the Maintenance Services (as applicable); “Site” means a place of business at which the Services and/or Equipment are to be provided as specified in the Service Agreement; and “Tariff” means the Company’s tariff for each of the Services which are available upon request or communicated to the Customer by the Company from time to time by way of a change notification.
FORMATION OF CONTRACT
1.1 The Service Agreement constitutes the Customer’s offer to the Company to purchase the documented Equipment and/or Services on and subject to the terms of the Service Agreement and the Conditions within this document. Once such an offer is accepted by an authorised representative of the Company signing the Service Agreement, a Contract shall come into effect. The details recorded on the Service Agreement, together with these Conditions, shall be the exclusive terms and conditions of the Contract between the parties subject to the credit status of the Customer, which is at the sole discretion of the Company, being to the satisfaction of the Company and any associated financing parties.
1.2 All quotations, estimates and tenders are provided and contracts are agreeable by the Company subject to and only upon these Conditions which cannot be varied unless previously agreed in writing by the Company and these Conditions supersede and override all other terms and conditions appearing elsewhere including, without limitation, any terms and conditions of the Customer referred to on any website or which the Customer may purport to apply under any purchase order or acknowledgement of delivery or similar document.
1.3 In the event of a conflict between these Conditions and the Service Agreement, the Service Agreement will prevail in respect of the relevant service without limitation.
1.4 Any illustrations, samples or descriptive material provided by the Company, including drawings, specifications of weight, capacity or dimensions and particulars of colour shade shall not form part of the Contract but shall be treated as approximate only. Any reduction in Customer costs quoted are estimates and illustrative only. All documents containing such illustrative or descriptive material shall remain the exclusive property of the Company and must not be copied, loaned or transferred. The Customer acknowledges and agrees that in entering into the Contract, it has not relied on any such illustrations, samples or descriptive material.
1.5 No variation of the terms of the Contract however notified (save with regard to the manuscript details on the Service Agreement including, where initialled by both parties, manuscript amendments to the type face, as such details may be inputted by authorised staff of the Company) will be accepted by the Company unless authorised by notice in writing by a Director of the Company.
1.6 Each order for Equipment and/or Services, except in the case of Installation Services which will form part of the contract for the supply of Equipment, shall be deemed a separate Contract, even if they are included on a single Service Agreement, to the effect that any delay or failure to supply Equipment and/or Services shall not entitle the Customer, if such entitlement exists, to terminate the Contract for other Equipment and/or Services or any other contract entered into under these Conditions.
1.7 Any undertaking by the Customer not to do any act or thing shall be deemed to include an undertaking that the Customer shall procure that any user of the Services or Equipment to include (without limitation) any employee, agent or contractor, shall not do such act or thing.
1.8 The Customer warrants and undertakes to the Company that it is entering into the Contract for the purposes of its trade, business and/or profession.
1.9 The Customer shall during the Minimum Term use the Company as its exclusive supplier of the Services and services similar to the Services. The Customer shall not during the Minimum Term use any supplier other than the Company for services which are the same or similar to the Services. In the event of any breach of this Condition, without prejudice to any other right of the Company, the Customer shall pay to the Company an amount calculated in accordance with Condition 11.10
CUSTOMER’S ORDER OBLIGATIONS
2.1 The Customer shall be responsible for providing the Company with all information relevant to the supply of Equipment and/or Services within sufficient time to enable the Company to duly perform the Contract.
2.2 The Customer shall be responsible for ensuring that the details set out on the Service Agreement and any drawings, sketches, specifications, descriptions or other instructions supplied by the Customer or any agent or representative of the Customer in connection with the supply of any Equipment and/or Services by the Company are accurate and fully describe the Customer’s requirements and the Customer shall be liable in respect of any liability, loss, injury, damage, demand, claim, cost charge or expense which may be incurred or sustained by the Company by reason of or arising directly or indirectly out of or in respect of any inaccuracy in respect of any such drawings, sketches, specifications, descriptions or other instructions in relation thereto, or where the compliance with any such any drawings, sketches, specifications, descriptions or other instructions by the Company constitutes the infringement of the intellectual property or other rights of another person.
SUPPLY AND INSTALLATION OF EQUIPMENT
In the event that the section related to Equipment is completed on the relevant Service Agreement, this condition 3 shall apply to the Contract.
3.1.1 Any Contract including the provision of Equipment and/or Installation Services based on an order which is accepted by the Company is, until the delivery of the applicable Equipment, conditional upon the availability of the relevant Equipment. In consideration of payment of the Price, the Company shall supply the Equipment, and shall take reasonable steps to deliver the Equipment and where applicable supply the Installation Services within an estimated period for delivery, such period shall commence from the date of receipt by the Company, unless specified otherwise, of all instructions and information for the execution of the Contract, but such time is not guaranteed nor deemed to be of the essence of the Contract.
3.1.2 Without prejudice to the generality of condition 2, the Customer shall be responsible for providing the Company with any necessary instructions for delivery of the Equipment within a reasonable period prior to the estimated delivery date advised by the Company to the Customer.
3.1.3 If the Customer fails to take delivery of the Equipment or if by reason of instructions or lack of instructions from the Customer the delivery of any Equipment in accordance with the Contract is delayed for more than twenty-eight days after the Company has given notice in writing to the Customer that the Equipment is ready for delivery the Equipment shall be deemed to have been Delivered in accordance with the Contract and thereafter the Equipment shall be deemed to be at the risk of the Customer. The Customer shall pay to the Company the reasonable costs of storing, protecting and preserving such Equipment after the expiry of such period of twenty-eight days.
3.1.4 If the Contract provides for Delivery by instalments, any delay in the Delivery of any instalment shall not entitle the Customer to treat the Contract as at an end or to reject any other instalment.
3.1.5 If by reason of refusal or delay of delivery or installation the Equipment shall be deemed to have been Delivered in accordance with condition
3.1.3, then payment shall be made by the Customer to the Company of the balance of the Price within thirty days of such deemed delivery date.
3.2.1 The responsibility for the cost of connection to a voice or data service is the responsibility of the Customer.
3.2.2 The Customer shall ensure that a suitable earthed mains electricity supply of 240volts AC to the Institution of Engineering and Technology’s IEE Wiring Regulations isavailable at the date of Delivery for each piece of Equipment within 3 metres of such pieces of Equipment.
3.2.3 The Customer shall prepare the Site(s) in accordance with the Company’s instructions so that any necessary Equipment can be installed. The Customer will meet the costs of preparing the Site(s).
3.3 PROPERTY AND RISK 3.3.1 The Equipment shall be at the Customer’s risk from the moment of Delivery or deemed Delivery as laid out in condition 3.1.3, whether or not property in the Equipment has passed or payment or part payment made therefore, and thereafter the Customer shall be responsible for insuring the Equipment.
3.3.2 Notwithstanding Delivery and the passing of risk, the property and the legal and beneficial title in the Equipment supplied under the Contract shall not pass to the Customer until the Company has received cleared funds payment in full of all sums due for the Equipment and Installation Services where applicable and all other Equipment and/or Services agreed to be sold by the Company to the Customer for which payment is then due.
3.3.3 Until such time as the property in the Equipment has passed to the Customer, the Customer shall hold such Equipment as the Company’s fiduciary agent and bailee, and keep such Equipment properly stored, protected and insured and identified as being the Company’s property until title has passed to the Customer.
3.3.4 Until such time as the property in the Equipment passes to the Customer the Company shall be entitled at any time to require the Customer, at the cost of the Customer, to deliver up the Equipment to the Company at its nominated location and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Equipment is stored and remove such Equipment from the premises.
3.3.5 The Customer shall not, without the written consent of the Company, be entitled to pledge or in any way charge by way of security for any indebtedness, or alter or modify, any Equipment which remains the property of the Company, but if the Customer does so all monies owing by the Customer to the Company shall forthwith become due and payable. The Customer shall ensure that any Equipment provided by the Company, which remains the property of the Company, shall remain identifiable and shall be kept free from any loss, damage, and/or deterioration and insured against all risks for its full reinstatement value.
3.4 LIABILITY FOR REPLACEMENT OR REPAIR
3.4.1 Subject to the following sub-conditions of this condition 4.4, the Company shall, for a period of twelve months from the date of Delivery or Installation (if applicable) whichever is the later event, at its option and without cost to the Customer either repair or replace any defective Equipment to make good any defect which shall be proved to the satisfaction of the Company to be the result of faulty design, materials or manufacture or Installation (only where the Company has supplied an installation under the Contract) provided that the Company shall have no liability for any such defects unless the Customer notifies the Company, within three Business Days from Delivery or Installation (if applicable) whichever is the later event, of any defect arising prior to and/or on Delivery or Installation (as the case may be) and (subject to condition 3.4.2) within twenty four hours of any latent defect arising within such twelve month period.
3.4.2 Where the Customer enters into an agreement for maintenance of the Equipment with a third party, the Company’s liability for repair, replacement, and renewal under the Contract shall be transferred to the relevant third party maintenance provider on Delivery, subject only to the Company’s relevant liability in respect of defects arising on or before Delivery of the Equipment provided that the Customer notifies the Company within three Business Days of Delivery in accordance with condition 3.4.1.
3.4.3 Where the Company is to supply Maintenance Services in respect of the relevant Equipment under the Contract, condition 5 shall apply and in the event of any conflict between this condition 3.4 and condition 5, the provisions in condition 5 shall prevail.
3.4.4 The liability of the Company shall apply only to defects that appear under proper use and under conditions of operation not more onerous than those declared to the Company by the Customer prior to entering into the Contract, and in particular shall not apply to defects which arise from the neglect, misuse, or faulty maintenance of the Customer or any of its other contractors, or from alterations carried out without the prior written consent of the Company or from repairs carried out improperly by the Customer or its servants or agents or arising from normal wear and tear.
3.4.5 Any repaired or new parts provided by the Company under this condition 3 will be delivered by the Company to the Customer free of charge. Any Equipment which has been returned to the Company and replaced by the Company shall become the property of the Company.
3.4.6 The Company reserves the right to charge for the costs of repairs and/or call-outs where the damage has resulted from misuse or unauthorised repair or alteration of the Equipment by the Customer or its agents, or from normal wear and tear.
3.4.7 Neither acknowledgement of receipt nor investigation by the Company of any claim hereunder or consent given hereunder shall constitute or imply admission by the Company of any liability in respect of such a claim.
3.4.8 Save where the Customer has purchased Maintenance Services in respect of the relevant Equipment (in which case condition 5 shall apply) the Customer acknowledges and agrees that the rights and remedies provided to the Customer (in connection with any defect in the Equipment resulting from faulty design, materials or manufacture or installation) under this condition 3.4 shall be the Customer’s sole and exclusive remedies in respect of any defect in the Equipment resulting from faulty design, materials or manufacture or installation.
3.5 TRADE MARKS AND BRANDING
3.5.1 The Company shall be entitled to fix legends bearing the Company’s and/or its third party supplier’s name and/or trademarks to any Equipment. 3.5.2 The Customer shall ensure that any legends bearing the Company’s and/or its third party supplier’s name and/or trademarks are not removed or defaced at any time.
FIXED NETWORK SERVICES
In the event that the section relating to Fixed Network Services is completed on the relevant Service Agreement, this condition 4 shall apply to the Contract.
4.1 DURATION. Subject to earlier termination under condition 11 or as otherwise stated in this condition 4:
4.1.1 The Fixed Network Services will commence on the Connection Date and continue for the Minimum Term as set out in the Service Agreement.
4.1.2 Subject to conditions 3.1.3 and 3.1.4, upon the expiry of the Minimum Term or any anniversary thereafter, the Contract will renew automatically for further periods of twelve months.
4.1.3 The Customer may terminate the Contract by giving thirty days’ notice in writing to the Company, such notice to become effective no earlier than the day after the last day of the Minimum Term or upon each anniversary of such date thereafter (as applicable).
4.2 SUPPLY OF FIXED NETWORK SERVICES
4.2.1 Any Contract for Fixed Network Services based on an order which is accepted by the Company is (prior to the Connection Date) conditional on the following: (a) the Company carrying out a survey which reveals to the Company’s satisfaction that it is possible for the Company to supply the Fixed Network Services and that any details or information used by the Company to determine the Charges applicable or any other terms of the Contract, whether supplied by the Customer or otherwise, are accurate and not misleading. The Charges may change depending on the results of such survey and (b) that the relevant Fixed Network Services can be provided, and the Company makes no warranty that the Fixed Network Services can be provided until lines have been installed and are operational.
4.2.2 The Company undertakes to use reasonable endeavours to supply the Fixed Network Services to the Customer and to provide the Fixed Network Services with due skill and care as and from the Connection Date subject to these Conditions. The Customer acknowledges that the Fixed Network Services cannot be guaranteed to be fault free and the Company does not warrant error free or uninterrupted use of the Fixed Network Services. Notwithstanding, any other provision of these Conditions, the Company shall not be liable to the Customer in contractor otherwise for any acts or omissions of Carriers which affect or otherwise impact the Fixed Network Services.
4.2.3 Subject to the continuing supply of the service by the relevant Carrier, in the event of a fault occurring in the Fixed Network Services the Company will use reasonable endeavours to rectify the fault as soon as practicable.
4.2.4 Except where stated on a Service Agreement, the data circuit element (if any) of any Fixed Network Services does not include the provision of any modems, routers or other equipment that the Company may supply to the Customer under a separate contract.
4.2.5 The Customer acknowledges that the speed of any data circuit (if any) of the Fixed Network Services depends on a number of factors including, but not limited to, distance from the exchange, local availability and service type. The Company gives no warranty or guarantee that the Customer’s circuits will produce top speeds of up to the maximum speed advertised, (as the final speed is governed by factors that are beyond the Company’s reasonable control).
4.2.6 The Customer warrants, represents and undertakes that it is the owner of, or that it is authorised by the owner of, (and has the right to use) any trade mark or name that the Customer wishes to use as or in its registered domain name (or any of them) (“Domain Names”) and/or as part of the Customer’s uniform resource locator (“URL”).
4.2.7 If the Company undertakes Domain Names and/or URL registration on behalf of the Customer, the Customer will reimburse the Company for any registration fees paid by the Company to the relevant internet registration authorities. The Company does not guarantee that any Domain Names or URL requested by the Customer will be available.
4.2.8 The Company may require the Customer to select replacement Domain Names or URL and may either refuse to provide or may suspend the Services if the Company reasonably believes that the Domain Names or URL is, or is likely to be, offensive, abusive, defamatory or obscene, or an infringement of the rights of a third party. 3 SUPPLY OF TELEPHONE NUMBERS
4.3.1 The Customer hereby acknowledges and accepts that under the General Conditions the Director General has the power to withdraw an allocation of telephone numbers and the Carrier may withdraw an allocation of telephone numbers to the Company and therefore any new telephone numbers provided to the Customer under the Contract, prior to their connection, cannot be guaranteed as available and therefore the Company shall not be liable for any costs incurred by the Customer in the use of any such telephone number (including, without limitation, in the advertising of such telephone number) which is withdrawn by the Director General and/or the relevant Carrier prior to connection unless the withdrawal is the fault of the Company.
4.3.2 Without prejudice to any rights the Customer may have to port a number allocated to it, the Customer acknowledges it does not own or have any right to sell any number provided to it by the Company. Where the Customer has a number from a national numbering plan, the charges for porting such number shall be provided upon request.
4.4. USE OF THE FIXED NETWORK SERVICES
4.4.1 The Customer shall be responsible for the safe custody and safe use by it of the Fixed Network Services and without prejudice to the generality of the foregoing, the Customer agrees and undertakes: (a) to use the Fixed Network Services in accordance with such additional Conditions as may be notified to it in accordance with condition 16 from time to time; (b) not to cause any attachments, other than those that meet the appropriate essential requirements of regulation 4 of the Radio Equipment and Telecommunications Terminal Equipment Regulations 2000 (as from time to time amended) and any other requirements under the General Conditions and all other Relevant Laws, to be connected to the Fixed Network Services and the Company shall not be under any obligation to connect or keep connected any Customer apparatus if it does not so conform or if in the reasonable opinion of the Company it is liable to cause death, personal injury or damage or to impair the quality of the Fixed Network Service; (c) not to contravene the General Conditions or any other relevant regulations or licences granted thereunder and otherwise not to contravene, and not by any act or omission, cause the Company to contravene, any Relevant Laws or General Conditions; (d) not to use the Fixed Network Service as a means of communication for a purpose other than that for which the Fixed Network Service is provided and as may be set out in any relevant literature supplied by the Company from time to time; (e) not to use the Fixed Network Service to make, provide, communicate, deliver, knowingly receive, upload, download, use or re-use any material or information which is intended to be a hoax call to emergency services or is of a defamatory, offensive, abusive, indecent, obscene or menacing character, or which does or is intended to cause annoyance, nuisance inconvenience or worry to any person or which in the Company’s opinion brings the Company’s name into disrepute or which in any way causes damage to or disruption to the Fixed Network Services; (f) not to use the Fixed Network Service in a manner which constitutes a violation or infringement of the rights of any other person; (g) to maintain its telecommunications apparatus at all times during the period of the Contract in good working order and in conformity with any relevant regulatory standards or approvals and Relevant Laws for the item as from time to time applicable; (h) to provide the Company with all such information as it reasonably requests relating to the Customer’s telecommunications apparatus; (i) to implement adequate control and security over the use of the Fixed Network Services provided to the Customer including but not limited to the prevention of viruses, worms, Trojan horses and/ or any calls generated by rogue diallers or hackers; and (j) not to use the Fixed Network Services in a way that breaches any Relevant Laws or any licence applicable to the Customer or that is in any way unlawful or fraudulent.
4.4.2 Any equipment installed or provided by or on behalf of the Company for the purposes of providing the Fixed Network Service (excluding any Equipment purchased under a Contract by the Customer for which condition 3 applies) shall at all times remain the property of the Company and shall be returned to the Company forthwith upon request. Condition 3.3 shall apply to such equipment. The Customer shall be liable to the Company for all losses, costs and expenses incurred by the Company for the recovery, replacement or repair of such equipment unless at the fault of the Company.
4.4.3 Unless otherwise stated on the Service Agreement, if the Customer takes a telephony line or service from the Company, the Customer is also committed to using the Company for calls over that line. Should the Customer (during the applicable Minimum Term) use an alternative carrier for calls once the Contract for the provision of the telephone line or service has commenced, or prevent the Company from carrying calls in any monthly period so that the call charges are significantly reduced in comparison to the Customer’s previous average invoicing profile, the Customer agrees that the Company may charge the Customer the differential between the average monthly spend on calls prior to such commencement or prevention and the subsequent monthly spend on calls (if any).
4.4.4 The Fixed Network Services are provided solely for the Customer’s use and the Customer’s cannot resell or attempt to resell the Fixed Network Services to any third party. In addition, if the Customer has a mail server, the Customer must not allow relay emails from outside its domain from the Customer’s mail server.
4.4.5 The Company does not warrant or guarantee the accuracy or completeness of any of the information, sound, software and/or any other materials (in whatever form) which may be accessible by the Customer from any other person once it has the Fixed Network Services (the “Content”) or any further information or results which may be derived from it. The Customer acknowledges that, the Content is outside the control of the Company and the Customer will not rely on any Content in making any business or other decision and that the Customer uses of the Content is at its sole risk.
4.4.6 The Customer acknowledges that the Content may be protected by copyright, trademark and other intellectual property rights, as applicable. The Customer will not and will not permit anyone else to copy, store, modify, distribute externally, broadcast or publish any part of the Content, and the Content may only be used for the Customer’s own purposes.
4.4.7 The Customer is entirely responsible for evaluating any goods or services offered by third parties via the Services or on the internet. The Company will not be a party to or in any way be held responsible to the Customer for any transaction between the Customer and third parties.
4.4.8 The Customer warrants, represents and undertakes that any information the Customer makes available on their website, both the Customer’s (“Customer Information”) or that of a third party (“Third Party Content”) is and will remain wholly accurate and will not include any information or material, any part of which, or the accessing of which or use of which, would be a criminal offence or is otherwise unlawful.
4.4.9 The Customer also warrants, represents and undertakes that it will comply with all consumer and other legislation, instructions or guidelines issued by regulatory authorities and relevant licences which relate to the provision of the information on the Customer’s website including those notified by the Company to the Customer.
4.4.10 Both parties agree to fully co-operate with the Police and any other relevant authorities (including but not limited to the Inland Revenue, Trading Standards, the Information Commissioner and/or OFCOM and their successors from time to time) in connection with any misuse or suspected misuse of the Fixed Network Services, and the Customer consents to the Company co-operating with any such authority and with any other telecommunications operators in connection with any misuse or suspected misuse or suspected fraudulent activity related to or connected with the Fixed Network Services and agrees, without prejudice to the generality of the foregoing, that the Company will be entitled to divulge the name and address and account information relating to the Customer to such third parties.
4.4.11 The Customer acknowledges that the data circuit element (if any) of the Fixed Network Services is provided to other users and the Company owes a duty to these users as a whole to preserve its network integrity and avoid network degradation. If, in the Company’s reasonable opinion, the Company believes that the Customer’s use of the Services has or may adversely affect such network integrity or may cause network degradation, the Company may change the Customer’s chosen access rate or manage the Customer’s Services as the Company sees fit in the circumstances.
4.4.12 To prevent spam from entering and affecting the operation of the Company’s systems and the Fixed Network Services, the Company may take any reasonable measures or actions necessary to block access to, or delivery of, any email which appears to be of an unsolicited nature and / or part of a bulk email transmission. The Company may also use virus screening technology that may result in the deletion or alteration of email and or email attachments. The Company gives no warranties whatsoever that such technology will be effective in any way, including (without limitation) against unsolicited emails or against any viruses, worms, Trojan horses or other programs or devices that are apparently intended to access and modify, delete or damage data files or computer programs.
4.4.13 To enable Customers to have a better understanding of what is and is not acceptable when using data products, and to help them get the best out of the internet, the Company has developed a Fair Usage Policy relating to the data circuit element of the Fixed Network Services. The Customer shall comply with the Fair Usage Policy. The Company may change the Fair Usage Policy at any time by publishing the changes on its website or by email thirty days before the change is to take effect.
4.4.14 The Customer acknowledges that, in order to use the data circuit element (if any) of the Fixed Network Services, the Customer may need an existing telephone line (depending on data service type and if not provided under the Contract) and a personal computer (PC) of a minimum specification suitable for the application. The Customer is responsible for ensuring that compatible cables and extension leads are used to and from their telephone socket, router and/or PC in order to use the Service.
4.4.15 In circumstances where the Customer receives the data circuit element of the Fixed Network Services, the Customer remains responsible for all rental charges made by the Customer’s line rental provider relating to the Customer’s relevant telephone line (together with any repair and maintenance charges, unless the relevant damage was caused by the Company’s negligence) and all call charges from the Customer’s fixed line telephony service provider.
4.4.16 The Customer will not misuse the Fixed Network Services in any way and will use all reasonable endeavours to ensure that the number of telephone calls made to the Number(s) do not significantly exceed the Customer’s capability to answer such calls or cause congestion (the existence of congestion to be reasonably determined by the Company taking into account normal levels of traffic on the network). Where the Company notifies the Customer of the occurrence of any such congestion or misuse, then the Customer shall immediately take all reasonable steps (which shall include, but not be limited to, arranging additional network capacity, adjusting the Customer’s promotional activities or using call bureau, for the relevant period) to prevent such congestion and/or misuse continuing.
4.5 SUSPENSION OF FIXED NETWORK SERVICES
4.5.1 Without prejudice to any other right of the Company to suspend or terminate the Services under these Conditions, the Company may at its sole discretion elect to suspend forthwith provision of the Fixed Network Services until further notice without further liability to the Customer having given the Customer reasonable notice either orally (confirming such notification in writing) or in writing in the event that:
(a) the Customer is in breach of a material term of these Conditions and/or the Contract and/or any other contract between the parties from time to time including but not limited to the Customer’s failure to pay the Price and/or the Charges (or any of them) to the Company on the due date or to comply with the Fair Usage Policy;
(b) the Company is obliged to comply with an order, instruction or request of the Government, an emergency services organisation or other administrative authority;
(c) the Company has reasonable grounds to believe that the Fixed Network Services are being used fraudulently or unlawfully;
(d) any licence under which the Customer has the right to run its telecommunications system and connect to the Fixed Network Services is revoked, amended or otherwise ceases to be valid;
(e) the Company or any member of its Group is entitled to suspend and/or terminate provision of any other telecommunications service under the terms of any other agreement with the Customer; or
(f) any maintenance or repair is necessary or required to the relevant network or related systems or equipment (for the avoidance of doubt, in the event of emergency maintenance or repair, the Company shall not be required to give any advance notice)
4.5.2 The Customer shall reimburse to the Company all reasonable costs and expenses incurred by the implementation of a suspension pursuant to condition 4.5.1 and/or the recommencement of the provision of the Fixed Network Service as appropriate, save in the case of a suspension, pursuant to condition 4.5.1(b).
4.5.3 Without prejudice to any other right of termination under these Conditions, the Company may terminate the Contract for Fixed Network Services forthwith in the event that its right or the right of the relevant Carrier to provide the Fixed Network Services is withdrawn by any supplier to it or the Director General pursuant to the General Conditions or otherwise.
4.5.4 On termination of the Contract for any reason the Customer shall permit the disconnection of any Number from the Fixed Network Services.
4.6 DISPUTE RESOLUTION
4.6.1 The Company will attempt to resolve any dispute that the Customer may have with the Company. If the dispute cannot be resolved within 8 weeks of the Customer raising the dispute with the Company, then the Customer may refer the matter to: (a) Ombudsman Services Communication, via the website www.ombudsman-services.org/ or by telephone on 0330 440 1614 or 01925 430 049; or (b) OFCOM, the communications regulator via the website www.ofcom.org.uk or by telephone on 0300 123 333 or 0207 981 3040.
4.6.2 Any dispute must be submitted in writing to the Company at Pelican House, 148 Cambridge Heath Road, London, E1 5QJ
4.6.3 Nothing in this condition 4.6 shall prevent the Customer or the Company from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Contract
In the event that the section relating to Maintenance Services is completed on the relevant Service Agreement, this condition 5 shall apply to the Contract.
5.1 DURATION OF MAINTENANCE SERVICES
5.1.1 Any Contract including the provision of Maintenance Services based on an order which is accepted by the Company is, until the Commencement Date, conditional on the Company providing confirmation by email to the Customer that the terms stated on the Service Agreement of the applicable Contract for Maintenance Services do not contain any errors or omissions. Subject to this condition 5.1.1 and in consideration of (and subject to) the payment of the Annual Support Charge each year by the Customer, the Company shall supply to the Customer the Maintenance Services in accordance with the Contract.
5.1.2 Subject to earlier termination in accordance with its terms, the Contract for Maintenance Services shall run for the Minimum Term. Upon the expiry of the Minimum Term, or any anniversary thereafter, the Contract in relation to the Maintenance Services will renew automatically for further periods of twelve months.
5.1.3 The Customer may terminate the Contract in relation to the Maintenance Services by giving thirty days’ notice in writing to the Company, such notice to become effective no earlier than the day after the last day of the Minimum Term or upon each anniversary of such date thereafter (as applicable).
5.2 PROVISION OF MAINTENANCE SERVICES
5.2.1 The Maintenance Services shall apply only in respect of the Equipment listed in the Service Agreement which it is agreed between the parties in writing shall be included under the Contract for Maintenance Services, which for the purposes of this condition 5 shall be deemed to be included.
5.2.2 Unless it is otherwise stated on the Service Agreement that a different level of Service (in terms of response times and hours of attendance) will apply, the Company will use its reasonable endeavours to, within two Business Days of receipt of notification from the Customer of a request for the provision of Maintenance Services and the Equipment being made available, commence during Normal Working Hours all adjustments, repairs and replacements of defective components resulting from fair wear and tear and/or faulty workmanship of the Company and/or materials which in the opinion of the Company are necessary for the proper functioning of the Equipment. Any time period stated in respect of the Company’s obligations under a Contract is not guaranteed nor deemed to be of the essence of the Contract.
5.2.3 Where the Company replaces defective Equipment or part thereof, it shall be entitled to supply serviceable reconditioned items in substitution thereof. These Conditions shall continue to apply to the Equipment embodying such substituted items.
5.2.4 The Company does not warrant that the provision of Maintenance Services (or any additional services supplied pursuant to conditions 5.3.1 and 5.3.2) will ensure that the Equipment operates without interruption or error.
5.2.5 Subject to spare part availability, the Company shall provide all necessary spare parts (in the reasonable opinion of the Company) required to keep the Equipment in satisfactory operation. All replaced parts shall become the property of the Company.
5.2.6 Subject to condition 5.3.1, Maintenance Services shall not include the following (the “Excepted Services”):
(a) the repair of damage to the Equipment resulting from accident, neglect or causes other than ordinary use (including, but not limited to, failure to observe any instructions supplied by the Company regarding the operation of the Equipment);
(b) repair, labour or materials required as a result of theft, vandalism, fire, lightning, water damage, fluctuations in electrical power supply, unsatisfactory environmental conditions, telephone line conditions, the connection of unapproved accessories, attachments or other devices or as a result of breach by the Customer of any of the terms of condition 5.5;
(c) the alteration, modification or maintenance of the Equipment by any person other than the Company without the Company’s prior written consent;
(d) the transportation or relocation of the Equipment save where the same has been performed at the request of the Company;
(e) the maintenance or repair of any extension wiring (after the initial twelve month warranty period under condition 3.4.1 has passed), any Equipment not at the Site, or of anything other than the Equipment;
(f) any defect or error in any software used upon or in association with the Equipment;
(g) the supply of replacement cassettes, aerials, aerial systems and batteries;
(h) the reprogramming of the Equipment to provide improved or modified service or facilities;
(i) Equipment faults caused by telephone area code changes or changes in Carriers;
(j) ancillary items including but not limited to answer-phones, analogue and digital phones or devices, call loggers, payphones, computers, servers, uninterruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, any cabling and/or consumables unless otherwise agreed in writing;
(k) maintenance arising from loss of equipment as the Maintenance Services are limited to repair or replacement of faulty equipment on a like-for-like exchange basis; and/or
(l) a dedicated helpdesk.
5.3 ADDITIONAL CHARGES
5.3.1 The Company may, in its discretion, upon request by the Customer provide all or any of the Excepted Services (as referred to in condition 5.2.6 above) but shall be entitled to charge for the same by levying Additional Charges in the manner described in condition 5.3.3 below.
5.3.2 Without prejudice to condition 5.3.1 above the Company shall be entitled to levy (and receive from the Customer) Additional Charges in the manner described in condition 5.3.3 below if:
(a) Maintenance Services are provided in circumstances where any reasonably skilled and competent person would have judged the Customer’s request to have been unnecessary; and/or
(b) the Customer reports an apparent fault of the Equipment to the Company and upon investigation by the Company the Equipment and/or its Installation is found not to be defective (in respect of a charge for the investigation and/or for any call-out including, without limitation, Equipment changed in a postal exchange where the Company reserves the right to make a charge up to the replacement value of the item in question); and/or
(c) where a fault that has been reported to the Company has been a non-Equipment fault but instead one of the Carrier.
5.3.3 Additional Charges shall be levied by the Company as follows:
(a) following completion of the work in respect of additional services supplied under condition 5.3.1 and 5.3.2(a); and (b) following completion of the investigation and/or call out in respect of condition 5.3.2
(b) and 5.3.2(c); and
(c) such Additional Charges (calculated in accordance with the Tariff prevailing at the time) shall be payable by the Customer within thirty days of the date of an invoice.
5.4 DISCONTINUED SERVICES
5.4.1 Without prejudice to condition 10 or any other right of suspension or termination of Services under these Conditions, the Company shall have the right to discontinue the Maintenance Services in respect of specified Equipment (without further liability to the Customer) in the event that the Company’s supplier and/or the manufacturer has ceased to supply such Equipment provided that the Company shall notify the Customer as soon as reasonably practical after it is aware of any cessation in supply of the Equipment and shall arrange with the Customer to either terminate the Contract or replace or upgrade the affected Equipment at the Customer’s expense.
5.4.2 Without prejudice to condition 10 or any other right to terminate any Services under these Conditions, the Company shall have the right to terminate forthwith the supply of the Maintenance Services (without further liability to the Customer) in the event that any necessary approvals required by the Company to maintain any of the Equipment are disallowed or revoked by any government or regulatory agencies or any third party.
5.5 The Customer undertakes that:
5.5.1 it shall ensure that the Equipment is used in a normal and proper manner;
5.5.2 it will carry out such routine day-to-day preventive maintenance measures as may be recommended in the customer operating instructions and manufacturer’s written recommendations supplied with the Equipment (“User Instructions”);
5.5.3 it will carry out minor maintenance adjustments suggested by the Company which includes minor programming changes with telephone support and replacement of handsets and cords which are relayed by courier or post;
5.5.4 it will not permit alteration to call routing apparatus or extension wiring except by the Company, or by the Company’s authorised agents, save that in relation to the connection of other apparatus to the Equipment, such connection may be performed by another person at the Customer’s expense if either
(a) the Company so agrees in writing, or
(b) the Company fails to carry out the connection itself within twenty-eight days after receiving written notice from the Customer stating that the Customer wishes specified apparatus to be so connected and naming that other person by whom the Customer wishes the connection to be performed;
5.5.5 it will appoint at least one member of its staff as a “Principal Operator”, who will be trained in the use of the Equipment. The Customer will ensure that such Principal Operator is available to carry out the instructions in the User Instructions and to liaise on Maintenance Services matters with the Company;
5.5.6 it will not employ or permit a third party to make any alterations to the programming or physical structure of the Equipment;
5.5.7 it will ensure that the environmental conditions for the Equipment are maintained in accordance with the User Instructions; 5.5.8 if the Equipment is not (immediately prior to the Commencement Date) either already maintained by the Company or within the scope of an express warranty given by the supplier thereof, then the Company may at its discretion inspect the Equipment and undertake such repair work as may be necessary to put the Equipment in good working order. The Customer shall pay for such inspection and repair at the Company’s then current charge rates applying at that time, and such payment shall be in addition to the Annual Support Charge.
5.6 CHANGE OF LOCATION
5.6.1 The Customer will not move any of the Equipment, nor remove the Equipment from its location as at the Commencement Date without the prior written consent of the Company, (such consent not to be unreasonably withheld). Where the Company consents to such relocation, the Company shall provide a relocation and installation service, the cost of which shall be paid by the Customer in accordance with the Company’s then current Charges applying at that time, and such payment shall be in addition to the Annual Support Charge.
PAYMENT & CREDIT FACILITIES
6.1 The Customer hereby consents to and shall procure that its owners, directors, officers and assigns consent to, the Company carrying out searches with credit reference agencies relating to the credit worthiness of the Customer and/or its owners, directors, officers and assigns and the Customer undertakes to supply or procure the supply of all information requested for a credit search with a credit reference agency, who will add to the Customer’s records and/or those records of its directors, officers and assigns details of the searches and these will be seen by other organisations that make searches.
6.2.1 A deposit equal to at least one half of the Price is payable by the Customer at the time of the placing of the relevant order. The balance of the Price as defined in condition 7.1.1 is payable thirty days from completion of Delivery (subject to condition 3.1.5)
6.3 FIXED NETWORK SERVICES
6.3.1 Subject to condition
6.3.2, the Customer shall be invoiced monthly in arrears by the Company and shall pay the Charges by Direct Debit within fourteen days of the date of the invoice (unless otherwise agreed with the Company and set out on the Service Agreement). 6.3.2 Line rental and data connections are payable monthly in advance, unless expressly agreed in writing by the Company.
6.4 MAINTENANCE SERVICES
6.4.1 Unless otherwise agreed, the Customer will pay the Annual Support Charge to the Company by Direct Debit (to such account as the Company may designate for that purpose) in advance of the relevant period as set out in the Service Agreement.
6.4.2 Where the Company has agreed to raise an Annual Support Charge annually, the Customer will pay the charge in advance of the Commencement Date and annually thereafter upon each anniversary of that date.
6.5 If payment of any sum payable to the Company is not made on or before the due date, the Company shall be entitled to charge interest thereafter on such sum at either the rate of four per cent per annum above the current base rate of The Royal Bank of Scotland plc from time to time or, if higher, such rate as the Company would be entitled to claim under the Late Payment of Commercial Debts (Interest) Act 1998 (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date until the date of payment whether before or after judgment.
6.6 Unless paperless billing is expressly not required on the Service Agreement, invoices will be sent to the Customer by way of pdf attachment to an email. Where paperless billing is expressly not required on the Service Agreement, the invoice will be sent to the Customer premises at an additional cost as per the Tariff in force at that time.
6.7 If the Company is unable, for whatever reason, to recover any sum due under the Customer’s account within four days following the due date for payment, the Company reserves the right to forthwith suspend all or any of the Services.
6.8 If the Customer’s account remains unpaid (in any part) the Company may require a security deposit of three times the average monthly invoice or payment in full for the next twelve months before the Company will reinstate the Service.
6.9 If the Customer’s account remains unpaid (in any part) for a period of thirty days after the original due date for payment, the Services may then be terminated by the Company. 6.10 Without prejudice to the Company’s other remedies, if the Customer’s account remains outstanding for any reason after the original due date for payment, then:
6.10.1 the Customer will be charged an administration fee for each piece of correspondence in connection with the recovery of the overdue amount. The Company may also charge the Customer a fee where it suspends a Fixed Network Service for non-payment; and
6.10.2 the Company reserves the right to refer the outstanding account to a debt collection agency. If the Company instructs a debt collection agency to collect payment (including interest and late payment charges) on its behalf the Customer must pay the Company’s costs payable to the agency, who will add the sum to the Customer’s outstanding debt.
6.11 The Customer will ensure that the name of the account holder is the same as the name on the payment details provided.
6.12 If any sum owed by the Customer to the Company under the Contract or any other contract with the Company is not paid by the due date, the Company may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with the Company.
6.13 Payment of all sums due to the Company shall be made without any set-off whatsoever.
6.14 If the Customer intends to dispute any charge on an invoice, the Customer must do so in writing to the Company within fourteen days of the date of the invoice and provide the Company with all relevant information in support of the disputed charge. Where the disputed charge(s) amount to:
6.14.1 less than five per cent of the total charges listed on the invoice, the Customer will pay the full amount of the invoice; or
6.14.2 more than five per cent of the total charges listed on the invoice, the Customer must pay the remaining amount of the invoice that is not in dispute.
PRICE AND CHARGES
7.1.1 The Price is as stated on the Service Agreement and is exclusive of VAT or any other tax or duty payable. The amount of such taxes or duties shall be added to the Price and shall be payable by the Customer in the same manner as the Price. Any invoices issued by the Company in respect of the Price shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
7.1.2 Unless otherwise specified the Price is based on the assumption that the Delivery of the Equipment and (where applicable) Installation Services will be completed in one continuous visit to the site agreed with the Customer and accordingly the Company may at its discretion at any time increase the Price to take account of any additional costs to the Company (including but not limited to storage and delivery costs) by reason of Delivery and/or the Installation Services taking more than one visit.
7.2 FIXED NETWORK SERVICES
7.2.1 Unless otherwise agreed, the Charges will be as detailed in the Tariff, available upon request.
7.2.2 The Company shall have the right to alter the Charges from time to time by publishing changes to the Tariff via its web site or via email communication and such changes shall take effect; (a) no earlier than thirty days after such publication in the event of changes which may be of material detriment to the Customer; and (b) no earlier than one day after such publication for all other changes, and if the Customer wishes to object to any proposed change which is of material detriment to the Customer, then the Customer must notify the Company in writing (addressed to Billing Department, First M Global Ltd, Pelican House, 148 Cambridge Heath Road, London, E1 5QJ) within thirty days of publication of the proposed change, otherwise the Customer will be deemed to have accepted the proposed change. For the avoidance of doubt, the service by the Company of any notice in accordance with condition
7.2.2(a) shall not constitute either acceptance of or an admission by the Company that any proposed change is of material detriment to the Customer, nor shall the service of notice by the Customer under this condition constitute or be deemed to constitute evidence that the relevant change is of material detriment to the Customer.
7.2.3 Usage charges payable shall be calculated by reference to data recorded or logged by the Company and not by reference to any data recorded or logged by the Customer. Any invoices issued by the Company in respect of the Charges for Fixed Network Services shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
7.2.4 Line rental is payable from the Connection Date.
7.3 MAINTENANCE SERVICES
7.3.1 The Customer shall pay to the Company the Annual Support Charge in accordance with condition 8.3. Any invoices issued by the Company in respect of the Charges for Maintenance Services shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
7.3.2 The Company shall have the right to alter the Annual Support Charge from time to time by giving the Customer not less than thirty days’ notice.
7.4 VALUE ADDED TAX All sums referred to under these Conditions and the Service Agreement are (unless otherwise stated) exclusive of Value Added Tax (VAT) and any taxes of a similar nature which may from time to time be introduced, which will be payable at the rates ruling at the date of the relevant invoice.
8.1 To enable the Company to fulfil its obligations under any Contract:
8.1.1 the Customer shall permit or procure permission for the Company and any other person(s) authorised by the Company to have reasonable access to the Customer’s Sites, Equipment and any other relevant telephone/data system and other equipment and shall provide such reasonable assistance as the Company requests.
8.1.2 The Company will normally carry out work by appointment and during Normal Working Hours but may request the Customer to (and the Customer shall) provide access at other times. In the event that the Customer cancels, reschedules or misses any pre-arranged appointment, it shall be liable to the Company for any costs and expenses which the Company incurs as a result of such cancellation, rescheduling and/or missed appointment.
8.2 At the Customer’s request, the Company may agree (at its sole discretion) to work outside Normal Working Hours and the Customer shall pay the Company’s reasonable charges for complying with such a request.
8.3 The Customer warrants, represents and undertakes that it has adequate health and safety provisions in place at its Sites.
8.4 The Customer shall procure all consents, licences and permissions necessary from landlords or other third parties for the carrying out of preparation work, installation of Equipment and for the provision, use and operation of the Equipment and/or Services at the Sites (save to the extent the Company has agreed in writing to do it).
8.5 In the event that the Customer is not able to procure the necessary consent to provide the Services within ninety days from the Connection Date the Company will be able to terminate the Contract forthwith by giving the Customer written notice without any liability. If the Customer has not managed to procure the necessary consents and the Company has commenced work the Company may ask the Customer shall, on request by the Company, refund to the Company the cost of all such work (including, without limitation, staff costs and equipment costs) at its then current rates.
8.6 The Customer shall provide the Company with the site and building plans (to include full details of all internal cabling runs) of the Sites and provide the Company with full details of all other services in the vicinity of the proposed works.
8.7 The Customer is responsible for making the Site good after any work undertaken by the Company at a Site, including without limitation replacing and re-siting items and for re-decorating.
8.8 If the Customer is moving a Site, the Company must be informed as soon as is reasonably practicable so that suitable arrangements can be made to transfer the Customer’s Services and Equipment. Unless otherwise requested, the Company, in addition to moving the Service and Equipment, will also endeavour (but cannot guarantee that it will be able, for example where the Customer moves to a different exchange) to retain the Customer’s relevant existing telephone number(s). If the Company can transfer the Customer’s existing number to the new Site the relevant existing Contract will continue under the same terms and conditions. If the Company cannot transfer the Customer’s existing relevant number to the new Site, installation of a new line will be required at the new Site, or if the Customer requires any additional new lines, this will attract new connection charges and will result in the commencement of a new Contract.
8.9 If the new installation or moving Site involves the visit of an engineer to facilitate the new installation, the Customer will be responsible for the costs incurred by the Company for the appointment of the engineer together with an administration fee in respect of any additional works required to be undertaken by the Company to complete the transfer of the Services and Equipment.
LIMITATION OF LIABILITY
9.1 Unless otherwise stated in these Conditions, the Company makes no warranty in respect of the supply of Equipment and/or Services and all other warranties which by reason of statute or other direction, regulation or governmental authority may be implied into a contract for the supply of the Equipment and/or Services are hereby excluded to the fullest extent possible, save for, and to the extent of, those warranties which cannot lawfully be excluded. If the Customer is a consumer, this shall be without prejudice to its statutory rights.
9.2 In no circumstances shall the Company’s liability, arising under or in connection with this Contract and whether in contract, tort (including without limitation negligence) breach of statutory duty or otherwise, to the Customer in respect of one incident or series of connected incidents in any one year, exceed 100% of the Price paid for Equipment and Installation Services and/or the Charges paid for Services (as the case may be) for the relevant Equipment and Installation Services and/or Services to which the claim or claims relate in the twelve months prior to the date on which the claim or claims arose.
9.3 Subject to condition 9.5, under no circumstances shall the Company be liable in any event under or in connection with the Contract and whether in contract, tort (including negligence) or otherwise for any: 9.3.1 loss of revenue; 9.3.2 loss of business; 9.3.3 loss of contracts; 9.3.4 loss of, damage to or corruption of data; 9.3.5 loss of anticipated savings; 9.3.6 loss of profits; or 9.3.7 any indirect, consequential or special losses; whether or not the Company knew or ought to have known that such losses or damages might be incurred.
9.4 Neither party shall be liable to the other party for any breach of any provision of the Contract (whether in breach of contract, tort (including but not limited to negligence), or otherwise) caused by any reason outside the reasonable control or responsibility of that party including, without limitation, in respect of Fixed Network Services supplied by the Company, the failure of any Carrier to provide network capacity (or any element thereof) to the Company on which it was reliant for the purposes of the Contract, any Act Of God, terrorist attacks, inclement weather, accidental damage, vandalism, failure or shortage or power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, any act or omission of Government, highways authorities, or other competent authorities.
9.5 Nothing in these Conditions excludes or restricts either party’s liability for:
9.5.1 death or personal injury resulting from that party’s negligence or its employee’s negligence (while acting in the course of their employment);
9.5.2 any fraud, fraudulent misrepresentation or fraudulent misstatement;
9.5.3 any indemnity given under the Contract; and/or
9.5.4 for anything for which the parties cannot at law limit or exclude their liability.
9.6 The Customer agrees that any cause of action that it may have against the Company and/or any of its Group members (including, its (or their) affiliates, directors, officers, agents, consultants and employees) must commence within two (2) years after the cause of action arose, otherwise, the Customer’s cause of action is permanently barred.
10.1 Without prejudice to any other rights of the Company, the Customer shall indemnify, keep indemnified and hold harmless the Company against all costs (including without limitation legal costs and the cost of enforcement on a full indemnity basis) liabilities, claims, damages, direct, indirect or consequential loss (all three of which include without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), expenses and/or judgments whatsoever, which it may suffer or incur, and arising from any: a) breach by the Customer of any warranties, undertakings and/or representations given under the Contract and/or any failure to comply with any responsibilities and/or liabilities of the Customer set out in the Contract; and/or b) injury and/or damage suffered or incurred by or to any of the Company’s (or any of its contractor’s) employees and/or equipment whilst on the Site
11.1 Subject to conditions 11.3, 11.4 and 11.6 below and without prejudice to any specific termination rights set out elsewhere in these Conditions, the Customer shall not be entitled (once an order has been accepted by the Company) to change or cancel an order:
11.1.1 at all in respect of Equipment; or
11.1.2 except for termination in accordance with the conditions relating to the serving of notice to terminate the relevant Services (which shall take effect in accordance with the applicable conditions), unless otherwise agreed in writing with the Company.
11.2 Subject to condition 11.6, in the event of any termination by the Customer of the Contract (in whole or in part), the Customer shall indemnify the Company in full against all loss (including, but not limited to, all losses incurred by the Company as a result of the Customer terminating the Contract before the end of the Minimum Term or where the Contract has continued beyond the Minimum Term before the end of the relevant notice period, which will include a minimum payment to the Company of the amount of the outstanding line rental charges, Annual Support Charges, call charges, subscriptions or otherwise that would have been paid by the Customer had the Contract continued for the Minimum Term and/or the relevant notice period (as the case may be)), costs, damages, charges (including, but not limited to, any liability for Fixed Network Services transferred from third parties) and administration charges (of a minimum of £300 in respect of the termination of the supply of any or all of the Equipment which is the subject of a Contract) and expenses incurred by the Company as a result of such changes or cancellation.
11.3 Without prejudice to any other rights of the Company under these Conditions or otherwise, the Company shall be entitled at any time and for any reason whatsoever to terminate any and/or all Contracts for Services on the giving of not less than thirty days’ written notice to the Customer, without further liability to the Customer. For the avoidance of doubt, in the event that the Company terminates a Contract under this condition 11.3, the Customer’s liability to pay the Charges for Services shall end on the date of termination of the relevant Contract and the Customer shall not be liable to pay for the Charges applicable for the remainder of any Minimum Term applicable in respect of that Contract.
11.4 A Contract may be terminated forthwith by either party by notice in writing if the other party materially breaches its obligations under these Conditions (including without limitation non-payment of charges due) and in the case of breaches which are capable of remedy such party fails to remedy such breach within fourteen days of written notice by the other party of what the breach is and requesting that the breach is remedied. Without prejudice to the generality of the foregoing, the Company shall be permitted to terminate the Contract forthwith on notice to the Customer in the event that the Customer is in material breach of any other contract under these Conditions (as in force from time to time) and which breach, if capable of remedy, has not been remedied within fourteen days of written notice by the Company of what the breach is and requesting that the breach is remedied.
11.5 Notwithstanding anything to the contrary expressed or implied in these Conditions, either party (without prejudice to its own rights) may terminate all Contracts forthwith in the event that a liquidator (other than for the purpose of solvent amalgamation or reconstruction) trustee in bankruptcy, administrator or receiver is appointed in respect of the whole or part of the assets and/or undertaking of the other party or the other party enters into an arrangement or composition with its creditors, or other circumstances arise which entitle a court or creditor to appoint a receiver or administrator or to make a winding up order (save as in respect of a solvent reconstruction of such relevant party’s group of companies).
11.6 The Company shall be entitled to terminate the Contract forthwith in circumstances where it also has a right to suspend the provision of the Services pursuant to condition 4.6.
11.8 The termination or expiry of the Contract shall be without prejudice to any rights or liabilities which have accrued prior to such expiry or termination. Any provision of this Contract which expressly or by implication is intended to survive, shall survive the termination or expiry of the Contract.
11.9 Any implied right to terminate for convenience that the Customer may have under applicable law is hereby expressly excluded. 11.10 Without prejudice to any other right or remedy of the Company, in the event of any termination of the Contract within the Minimum Term or a breach by the Customer of Condition 1.9, the Customer shall pay to the Company the greater of:
11.10.1 an amount equal to the average monthly amount invoiced to the Customer for the Services in the period prior to the relevant termination or breach multiplied by the number of unexpired months (as at the time of the relevant termination and/or breach) of the Minimum Term; or
11.10.2 the amount which would otherwise have actually been payable to the Company by the Customer for any subscription or rental element of the Services multiplied by the number of unexpired months (as at the time of the relevant termination and/or breach) of the Minimum Term