Terms & Conditions
This website is owned by Solar Communications Limited
Registered address: Rowan House, Sheldon Business Park, Chippenham, Wiltshire, SN14 0SQ
Company Number: 2319958
VAT Number: 520127009
1. Definitions & Interpretation
In The Agreement (as defined below) the following terms have the following meanings:
“Act”
means the Telecommunications Act 1984, the Communications Act 2003 and any telecoms laws, subject to any statutory modification or re-enactment thereof;
“The Agreement”
together the Client Agreement, these Conditions and any Supplementary Terms;
“Client Agreement”
a quotation for the supply of Equipment and/or Services which is accepted by the Customer or an order for the supply of Equipment and/or Services which is accepted by the Company in each case in accordance with Clause 3.1;
“Company”
Solar Communications Limited;
“The Company Tariff”
means the Company’s standard charges which are applicable to the Agreement, together with details of any rebates which are offered in respect of use of Non-Geographic Numbers, as such charges and rebates are updated and notified to the Customer from time to time;
“Customer”
the company, partnership, sole trader, or other legal entity named in the Client Agreement;
“Equipment”
the hardware and other items (including any parts for them and/or any instruction manual or other documentation to be supplied with them) which the Company has agreed to supply to the Customer, as specified in or by reference to the Agreement including (without limitation) Third Party Software;
“Installation Address”
the location at which the Equipment is to be installed and/or the Services are to be provided as detailed in the Client Agreement;
“Intellectual Property”
patents, trademarks, trade secrets, copyright, database rights, design rights, inventions, knowhow and any other industrial or intellectual property rights of any nature whatsoever, whether registered or capable of registration or not, in any part of the world and including all applications and the right to apply for any of the foregoing rights and the right to sue for past infringements of any of the foregoing rights;
“Minimum Month’s Call Charges”
means the average of the six highest month’s call charges incurred by the Customer under this Agreement (or if the Customer has incurred less than six month’s call charges, the highest month’s call charges incurred by the Customer under this Agreement);
“Minimum Month’s Line Rental”
means the Rental Value specified in the Order Form and the average of the six highest month’s line rental charges incurred by the Customer under this Agreement (or if the Customer has incurred less than six month’s line rental, the highest month’s line rental incurred by the Customer under this Agreement);
“Minimum Term” and “Minimum Terms”
means the term or terms specified in the Agreement from the date of connection to the respective Services;
“Month”
means (unless expressly specified otherwise) a calendar month;
“Month’s Call Charges”
means the total amount of the charges in respect of the Customer’s telephone calls in a month;
“Non-Geographic Number”
means any telephone number allocated by the Company to connect calls to the Customer (which in some cases may generate a rebate to the Customer as set out in the Company Tariff);
“Normal Working Hours”
means hours between 9.00am and 5.30pm, from Monday to Friday (excluding Bank or other Public Holidays);
“Service Commencement Date”
means, in respect of a Site, the date on which any Services provided by the Company shall commence.
“Third Party Software”
the software specified in or by reference to this Agreement or the Client Agreement all of which is owned or licenced by a third party;
“Works”
all reports, software, data and other information, materials or items (whether tangible or intangible) created or developed by the Company in the course of providing the Services.
Headings are inserted for ease of reference only and do not affect the interpretation of the Agreement.
1.2 References in these Terms and Conditions to Clauses and Schedules are references to clauses
of or schedules to these Terms and Conditions. References to Paragraphs are references to
paragraphs of the Schedule in which the reference is made, unless otherwise explicitly provided.
1.3 Unless the context otherwise requires, the singular includes the plural and vice versa.
1.4 To the extent that a time period is not specified in the Agreement for compliance with any particular
obligations, the time period will be deemed to be a reasonable period of time.
2. Basis of the Agreement
2.1 The Company will supply and the Customer will purchase the Equipment and/or Services in accordance with the Client Agreement, subject in either case to these Conditions and any Supplementary Terms which will constitute the entire agreement and understanding and will govern the Agreement to the exclusion of any other terms and conditions.
2.2 Unless otherwise agreed, these Conditions will govern the provision of all goods and services provided to the Customer by the Company in the future.
2.3 The Customer acknowledges and agrees that it has not been induced to enter into the Agreement in reliance upon, and does not have any remedy in respect of, any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than as expressly set out in the Agreement.
3. Orders & Specification
3.1 No order submitted by the Customer is to be treated as having been accepted by the Company unless and until confirmed in writing by an authorised representative of the Company. In the case of any quotation submitted by an authorised representative of the Company, authorisation to proceed with the delivery of the Equipment and/or provision of the Services, whether oral or in writing (including, for the purposes of this clause 3.1 by email), will constitute the Customer’s acceptance of that quotation and these Conditions.
3.2 The Company reserves the right to make any changes to the specification of the Equipment which are required to conform with any applicable safety or other statutory requirements or, where the Equipment is to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
3.3 As the Equipment is not manufactured by the Company:
3.3.1 any specifications given by the Company in any quotation submitted by it are stated as correctly as possible having regard to the information provided to the Company by the manufacturer, and any photographs, descriptions, illustrations or advertising matter are based on information obtained from the manufacturer of that equipment and represent generally the equipment offered but do not constitute a sale by description; and
3.3.2 any figures relating to performance published or communicated by the Company are based on information obtained from the manufacturer of the Equipment and experience obtained during testing by the Company but will not be incorporated as a term of the Agreement;
3.3.3 and the Company will not have any liability to the Customer for any inaccuracy in any specification or other information obtained by the Customer from the manufacturer.
4. Customer Obligations
4.1 The Customer will, at the Customer’s cost:
4.1.1 make a full disclosure to the Company of all information and/or material that the Company reasonably requires in order to perform its obligations under the Agreement;
4.1.2 ensure that any such information and/or material is true, accurate and complete in all respects;
4.1.3 ensure that any such information and/or material is free from any defamatory or unlawful content and that it does not infringe any rights (including Intellectual Property rights) of any third party;
4.1.4 ensure that any such information and/or material is provided within sufficient time to enable the Company to supply the Equipment and/or the Services in accordance with the Agreement; and
4.1.5 indemnify the Company (and keep it indemnified) against all costs, claims, losses, expenses and other liabilities arising out of or in connection with any breach by the Customer of its obligations in this clause;
4.1.6 comply with all relevant legislation including, but not limited to the Data Protection Act 1998;
4.1.7 provide the Company with such co-operation and access to the Customer’s premises as the Company may reasonably require from time to time in order to perform its obligations under the Agreement and in the event that any representative of the Company attends at any premises of the Customer in connection with the provision of the Services the Customer will:
4.1.7.1 take all reasonable steps to ensure the health and safety of such representative(s);
4.1.7.2 ensure that an adequate policy of insurance is in place in respect of any injury to or death of such representative(s); and
4.1.7.3 indemnify the Company in respect of all loss or damage to the property of the Company or its representative(s) and all claims arising out of the personal injury or death of any representative of the Company, unless and to the extent that any such loss, damage, personal injury or death was caused by the negligence of the Company or any of its employees or agents.
4.2 The supply of the Third Party Software and the Customer’s use of the Third Party Software shall be conditional upon the Customer accepting and complying with the licence terms proposed by the author or publisher of that software.
5. Confidential Information
5.1 Each party shall safeguard and keep confidential the terms of this Agreement and any and all information it receives, acquires or produces which is marked as or is of a confidential nature (“Confidential Information”) that it may acquire in relation to the business or affairs of the other party. Neither party shall use or disclose the other party’s Confidential Information except to the extent that such use or disclosure is necessary for the purposes of performing its obligations or exercising its rights under this Agreement. Each party shall ensure that its officers and employees and any other persons to whom the other party’s Confidential Information is disclosed comply with the provisions of this Clause 5.1.
5.2 The obligations on a party set out in Clause 5.1 shall not apply to any information to the extent that such information:
5.2.1 is publicly available or becomes publicly available through no act or omission of that party; is required to be disclosed by law.
5.2.2 The provisions of this Clause 5 shall survive any termination of this Agreement.
6. Prices and Payment
6.1 The price of the Equipment, and for the supply of the Services, will be the prices stated in the Client Agreement, or otherwise expressly agreed in writing from time to time by an authorised representative of the Company.
6.2 All prices stated in any quotation given by the Company, but not yet agreed by the Customer, are valid for the following periods:
6.2.1 for 30 days from the date of the Quotation, except as provided for in clause 6.2.2,
6.2.2 for Equipment sourced outside the UK, for 7 days from the date of the Quotation, or less where the GBP fluctuates adversely by more than 1% against the relevant purchase currency,
6.2.3 after which time they may be altered by the Company without giving notice to the Customer.
6.3 Unless otherwise expressly agreed in writing between the Customer and the Company:
6.3.1 where the Company agrees to deliver the Equipment otherwise than at the Company’s premises, the Customer will reimburse the Company in respect of all costs incurred by the Company in relation to the transportation of the Equipment to their final destination (including, but not limited to, any haulage, freight, shipping or other carrier charges, the cost of packing, insuring and storing the Equipment whilst in transit, and all customs or other taxes and duties payable on the Equipment);
6.3.2 all prices for the Services include reasonable expenses incurred by the Company in providing the Services, and the Customer will reimburse the Company for all extraordinary expenses (including, but not limited to, travel and subsistence);
6.3.3 all prices and any other amounts payable by the Customer are expressed exclusive of any value added or other sales tax.
6.4 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Equipment and/or Services after the Contract Date to reflect any increase in the cost to the Company of supplying the Equipment and/or Services which is due to:
6.4.1 any factor beyond the control of the Company (such as, but without limitation, any foreign exchange fluctuation, significant increase in the costs of labour, raw materials or other costs of manufacture); and/or
6.4.2 any change in delivery dates, quantities or specifications for the Equipment and/or Services which is requested by the Customer; and/or
6.4.3 any failure of the Customer to comply with its obligations under the Agreement, including those under clause 4 above.
6.5 The Customer shall pay a deposit which is non-refundable, as set out in the Client Agreement, for the Equipment which shall be due on submission of the order. The Company will be entitled to receive further payments from the Customer for the balance of the price of the Equipment, together with any delivery charges and any applicable value added or other sales tax, as set out in Section 2 of the Client Agreement, unless the Customer wrongfully fails to take delivery of the Equipment, in which case the Company will be entitled to invoice the Customer for such sums at any time after the Company has tendered delivery of the Equipment.
6.6 The Company will be entitled to invoice the Customer for the price of the Services, together with all expenses incurred by the Company in providing the Services and any applicable value added or other sales tax, on the dates specified in the Client Agreement, or where no such dates are specified, either on completion of the Services or at any time after the end of each calendar month in respect of Services provided during that month, whichever is the earlier.
6.7 During this Agreement but not more than once in any period of twelve months the Company may increase the annual charges due for the provision of the Services. Such increase as so determined may be applied from the first anniversary of the date of this Agreement and thereafter from each succeeding anniversary of the date of the previous such increase.
6.8 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company will be entitled to:
6.8.1 terminate the Agreement or (without prejudice to its right to terminate subsequently) suspend any further deliveries and/or provision of Services to the Customer; and/or
6.8.2 appropriate any payment made by the Customer to such of the Equipment (or any Equipment supplied under any other agreement between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and/or
6.8.3 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above the Barclays Bank base rate from time to time from the due date until the date of actual payment in cleared funds.
6.9 All sums payable by the Customer under the Agreement are to be paid without set-off, counterclaim or deduction of any description.
7. Delivery of Equipment
7.1 Delivery of the Equipment will be made:-
7.1.1 unless otherwise expressly agreed in writing by the Company, to the Customer’s delivery address, and for the purposes of the Agreement the Company will accordingly be treated as having tendered delivery at any time after the Company has notified the Customer that the Equipment is ready for delivery; or
7.1.2 if the Company has expressly agreed in writing to deliver the Equipment to some other place, by the Company delivering the Equipment to that place.
7.2 In relation to delivery time-scales:-
7.2.1 The Company will use its reasonable endeavours to meet any delivery dates specified in the Agreement, but subject to the Company having used such endeavours, it will not be liable to the Customer for any failure to meet such dates;
7.2.2 for the avoidance of doubt, time for delivery will not be of the essence;
7.2.3 any Equipment may be delivered by the Company in advance of the delivery date specified in the Agreement upon the Company giving reasonable notice to the Customer.
7.3 If the Customer fails to take delivery of any consignment of Equipment (except where the failure was the result of a default by the Company) then, without prejudice to any other right or remedy that the Company may have, the Company may:
7.3.1 store the Equipment until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; and/or
7.3.2 after more than 28 days, sell the Equipment at the best price readily obtainable and charge the Customer for any shortfall below the price referred to in clause 6 above.
Where the Equipment is to be delivered in instalments, each delivery will constitute a separate contractual obligation. Failure by the Company to deliver any one or more of the instalments in accordance with the Agreement, or any claim by the Customer in respect of any one or more instalments, will not give the Customer the right to treat the Agreement as a whole as repudiated.
8. Risk and Property in Equipment
8.1 Risk of damage to or loss of the Equipment shall pass to the Customer:
8.1.1 in the case of Equipment to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Equipment is available for collection; or
8.1.2 in the case of Equipment to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Equipment, the time when the Company has tendered delivery of the Equipment.
9. Retention of Title
9.1 Notwithstanding delivery and the passing of risk in the Equipment or any other provision of the Agreement, the legal title to the Equipment shall not pass to the Customer until the Company has received in cleared funds payment in full of the price of the Equipment from the Customer.
9.2 Until such time as the legal title to the Equipment passes to the Customer, the Customer shall hold the Equipment as the Company’s fiduciary agent and bailee, and shall keep the Equipment separate from that of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property, but the Customer shall be entitled to use the Equipment in the ordinary course of its business.
9.3 Until such time as the title in the Equipment passes to the Customer, the Company shall be entitled at any time to require the Customer to deliver up the Equipment to the Company and, if the Customer fails to do so immediately to enter upon any premises of the Customer or any third party where the Equipment is stored and repossess the Equipment. For the purposes of this Clause, the Customer hereby grants to the Company an irrevocable licence to enter on any premises or land in the ownership or possession of the Customer where the Equipment is stored in order to remove or inspect the Equipment and the Customer shall fully indemnify the Company against all loss, damage, costs or expenses incurred by the Company (including those arising out of any third party claims made against the Company) in relation to the exercise of its rights under such licence.
9.4 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Equipment which remains the property of the Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) become due and payable immediately.
9.5 The Company shall be entitled to maintain an action for the price of the Equipment, notwithstanding that the legal title to them has not passed to the Customer.
10. Variation of Services
10.1 The Customer may at any time prior to completion of the Services request in writing that the Company modify or extend the Services still to be performed and the Customer shall provide the Company with full particulars of any requested modification or extension and such further information as the Company may reasonably require (“the Variation Notice”).
10.2 As soon as reasonably practicable following receipt by the Company of the Variation Notice the Company shall inform the Customer whether such modification or extension is feasible and shall inform the Customer of any alterations to the fees payable, any completion dates and any other terms that it shall judge necessary to make as a result of such request.
10.3 The Customer may, within 14 days of receipt of the proposed alteration to the fees payable and any completion dates and any offered terms, accept such alterations whereupon the Agreement shall be deemed to be amended to incorporate the modified or extended Services requested in the Variation Notice and the altered fees, completion dates and other terms agreed by the parties.
11. Intellectual Property
11.1 Except as expressly stated in this Agreement, the Works, together with all Intellectual Property subsisting on, in or in relation to the Works, will belong (as between the Company and the Customer) to the Company absolutely, and no rights in the Works are granted to the Customer save for a non-exclusive licence to use such of the Works as are reasonably necessary for the purposes contemplated by the Agreement.
11.2 The licences referred to at clause 11.1 above are granted strictly subject to the condition that the Customer will not decompile, copy, adapt or modify any software comprised in the Equipment and/or the Works.
12. Maintenance Services
12.1 The Maintenance Services set out in the Client Agreement shall be provided for the duration of the Initial Term shown in Section 6 of the Client Agreement, with no provision for early termination, and shall continue to rollover automatically thereafter annually from year to year unless terminated in accordance with clause 12.2.
12.2 The Maintenance Services may be terminated by either party giving not less than 90 days written notice by Registered Mail, such notice to expire on the expiry of the Initial Term or an anniversary of the Commencement Date.
12.3 The annual maintenance charges may be increased from time to time to account for cost increases. If this increase exceeds the RPI by 10%, the Customer may by writing to the Company within 30 day of the notice of the price increase terminate the Agreement. Customers will not be allowed to terminate the Agreement if the increase has resulted from additions made to the system.
12.4 All system equipment add-ons are automatically added to this Maintenance Contract at the ruling maintenance fee for the remainder of the Initial Term and any term extensions covered by clause
12.5 The Company may from time to time vary all or part of the Maintenance Services by giving not less than one month’s written notice to the Customer.
12.6 The Company may in its discretion remedy any error or problem by providing to the Customer replacement goods, for which a charge will be made.
12.7 It is a condition of the provision of the Maintenance Services and of compliance with any response times referred to in the Client Agreement that the Customer:
12.7.1 Reports to the Company any suspected errors or problems with the Maintained Equipment promptly and with as much information as possible concerning the failure;
12.7.2 Maintains the Installation Address in such condition as the Company may advise and it would be reasonable to expect for the operation of computer equipment and programs;
12.7.3 Provides the Company with access to the Maintained Equipment and appropriate working space and facilities together with access to the information and facilities of the Customer which may be necessary to assist the Company in effecting the provision of the Maintenance Services;
12.7.4 Performs the routine preventative maintenance and cleaning referred to in any documentation supplied with the Maintained Equipment; and
12.7.5 Maintains procedures logging the time and information concerning any particular failure of the Maintained Equipment.
12.8 The Company will use all reasonable endeavours to respond to calls for the Maintenance Services promptly within the timescales set out in the Client Agreement, but no guarantee or warranty is given of any times for response or that the Company will be able to rectify a problem within a particular time scale.
12.9 The Company’s obligation to provide the Maintenance Services is conditional upon the proper use of the Maintained Equipment and the Company shall be under no obligation to provide the Company where failure is due to any of the following:
12.9.1 Improper use, neglect or accident in respect of the Maintained Equipment.
12.9.2 Modifications, alterations or repairs or error correction carried out with reference the Maintained Equipment other than by the Company or with the Company’s prior written approval.
12.9.3 Any failure due to electrical power and adequate cooling, fire or flood or natural disasters.
12.9.4 Combination of the Maintained Equipment with any equipment or software or hardware programs not supplied or previously approved by the Company.
12.9.5 Failure to keep the Maintained Equipment to the release level recommended by the Company.
12.9.6 Failure of consumables not supplied under this Agreement or supplied on the basis that the Customer will replace these.
12.9.7 External electrical work.
13. Network Services
13.1 The Network Services set out in the Client Agreement shall be provided for the duration of the Initial Term shown in the Client Agreement, with no provision for early termination, and shall continue to rollover automatically thereafter annually from year to year unless terminated in accordance with clause 13.2.
13.2 The Network Services may be terminated by either party giving not less than 90 days written notice by Registered Mail, such notice to expire on the expiry of the Initial term or on an anniversary of the Commencement Date.
13.3 Where the Services for the Customer include line rental the Minimum Term for such line rental services shall be substituted for the Minimum Term for the telephony Services unless otherwise specifically agreed in writing with the Customer.
13.4 The Customer will use the Services in accordance with any reasonable operating or other instructions the Company may from time to time provide.
13.5 The Customer agrees that during the currency of this Agreement it will use the Services (and any associated Equipment) for the routing of all its outbound telephone calls, line rental and internet requirements to which this Agreement relates.
13.6 The Customer will be responsible for ensuring that the Services are not used: for the sending of any defamatory, offensive, abusive, obscene or menacing material; or in a manner which infringes the rights of any party (including without limitation rights of copyright or confidentiality); or in an unlawful manner; and if the Company incurs any liability or expense to any party in any way connected with any such use then the Customer shall indemnify the Company in respect of the same.
13.7 All rights in any telephone numbers (including without limitation any Non-Geographic Numbers) allocated by the Company to the Customer will remain vested in the Company who may change any telephone numbers given to the Customer for operational or technical reasons or if required to do so by the Company’s telecommunications service provider or may remove such numbers not used by the Customer provided that the Company shall give to the Customer reasonable notice of changing or removing any telephone number.
13.8 The Customer has no right to sell, sublicense or otherwise transfer or register any rights against any such telephone numbers allocated to the Customer.
13.9 The Customer shall ensure that the number of minutes of calls made to Non-Geographic Numbers allocated to the Customer shall not exceed 50,000 minutes in any one month without the prior written authority of the Company.
13.10 The Company may change from time to time the service provider used for the provision of any Services on behalf of the Company, and any access codes required to access the Services for operational or technical reasons or if required to do so by its service provider.
13.11 The Company may, without terminating the Agreement, immediately suspend part or all of the Services until further notice if:
a) The Company would be permitted to terminate the Agreement under Clause 15; or
b) The Company is obliged to comply with an order, instruction or request of Government, and emergency services organisation, or other competent administrative authority. The Company will give the Customer the maximum period of notice practicable in the circumstances if it needs to suspend the Services for this reason; or
c) The Company needs to carry out any maintenance or upgrade at the Site. The Company will give the Customer the maximum period of notice practicable in the circumstances if it needs to suspend the Services for this reason.
13.12 If it is necessary for the Company to suspend Services under Clause 13.11 (b) or Clause 13.11 (c), it will do so for as short a period as is practicable in the circumstances.
13.13 If the Company suspends part or all of the Services due to any event in Clause 13.11, this will not exclude its right to terminate the Agreement later in respect of that or any other event, nor will it prevent the Company from claiming damages from the Customer.
13.14 The Company will charge the Customer for installation and for the Services the prices specified in the Company Tariff from time to time. The Company will invoice the Customer and the Customer shall pay:
a) in respect of installation charges (which charges shall not be refundable unless otherwise agreed in writing by the Company) forthwith upon receipt of the invoice;
b) in respect of line rental, data circuits and services monthly in advance;
c) in respect of call and other charges monthly in arrears;
d) in respect of any other Services as set out in the Company Tariff AND the Customer must pay the recurring charges by direct debit unless otherwise agreed in writing and in any event by the fourteenth day after the date of invoice. If the Customer fails to make any payment within 14 days of the date of invoice The Company may require the Customer to pay all sums due under the Agreement on demand.
13.15 The Company may at any time change the charges and rebates specified in the Company Tariff by:
a) decreasing the charges or increasing the rebate without notice; or
b) increasing the charges or decreasing the rebate by giving the Customer (where practicable) 14 days written notice.
13.16.1 The Company may, on 7 days’ written notice to the Customer, stipulate a reasonable monetary limit that will apply to all charges due or which may become due to the Company from the Customer, whether or not they have been billed by the Company. If at any time the amount of charges payable to the Company (whether or not billed) exceeds the stipulated monetary limit, the Company will immediately notify the Customer and any amounts incurred in excess of the stipulated monetary limit will immediately become due and payable.
13.16.2 The Company may on seven days written notice to the Customer require a deposit up to the amount of such monetary limit to be paid by the Customer to the Company as security for the payment of the Customer’s invoices.
13.17 If the Customer is entitled to a rebate in respect of calls made to Non-Geographic Numbers:
a) to the extent that the Company is not paid rebate in full by its telecommunications service provider in respect of calls made to Non-Geographic Numbers, the Company shall have no liability to make any payment or allow any rebate otherwise due to the Customer;
b) if there is a change in the rate of rebate allowed to the Company, the Company may make a corresponding reduction in the rebate allowed to the Customer; and
c) the Company may offset any overpayment made to the Customer as a result of the
circumstances referred to in sub-clauses 13.16.1 and 13.16.2 above against any future
payment due to the Customer or may issue an invoice to the Customer for the amount of the overpayment.
13.18 All call charges and rebates under the Agreement shall be calculated by reference to the data recorded or logged by or on behalf of the Company and not by reference to data recorded or logged by the Customer.
13.19 The Customer is liable for and shall pay for any charges incurred through the use of the Services by any third party.
13.20 On cancellation of any part of the Network Services in the Client Agreement, termination of the Agreement or cancellation of the Services at a Site under Clause 15, all amounts owed by the Customer to the Company shall become immediately due and payable in full on demand and the Customer must:
13.20.1 immediately make all necessary arrangements to stop using the Services including
where there is a new supplier ensuring that they transfer line rental ADSL and telephone
calls to them from The Company to the extent that they have been cancelled or the Agreement has been terminated; and
13.20.2 immediately stop using any relevant Equipment; and
13.20.3 allow the Company to enter the Sites during normal business hours to remove the Equipment or for any other purpose that may be necessary to secure the disconnection or cessation of the Services. The Customer’s obligations in respect of the Equipment will continue to apply until the Company has removed the Equipment; and
13.20.4 pay to the Company liquidated damages to compensate it for its lost revenue:
i) in respect of line rental at a monthly rate equal to the Minimum Month’s Line Rental
for the period from such termination to the earliest date that the Agreement could have
been terminated by the Customer in accordance with its terms; and
ii) in respect of call and other non-periodic charges (subject as mentioned below in this clause) at a monthly rate equal to the Minimum Month’s Call Charges for the period from such termination to the earliest date that the Agreement could have been terminated by the Customer in accordance with its terms;
iii) in respect of ADSL and all other Services at a monthly rate equal to100% of the amount which would have been charged by the Company for the period from such
termination to the earliest date that the Agreement could have been terminated by the
Customer in accordance with its terms.
13.20.5 pay on demand to the Company the reasonable costs of reprogramming any
telecommunications apparatus used by the Customer and removing the Equipment;
13.20.6 pay on demand to the Company such reasonable charges as the Company may make in respect of any equipment that is missing or the Company is unable to remove from the Customer’s premises;
13.20.7 continue to pay to the Company for all calls and line rental invoiced to The Company by its telecommunications service provider if the Customer fails to comply with clause 13.20.2 above;
13.20.8 when the installation costs in respect of any of the Services have not been paid by the Customer in full to pay to the Company the difference between the standard rate applying at the time of the installation for such installation and the amount (if any) paid by the Customer.
14. Warranties & Liability
14.1 The Company gives no warranties as to the use, performance, functionality or quality of the Equipment and the Customer will only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
14.2 The Company warrants that it will provide the Services using all reasonable care and skill and, as far as reasonably possible, in accordance with any specification or service levels set out in the Client Agreement.
14.3 Subject as expressly provided in the Agreement, all warranties, conditions or other terms implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.
14.4 The Customer will notify any damage, defect or shortage in respect of the Equipment to the Company in writing:-
14.4.1 in the case of any shortage, or any damage or defect which should have been apparent on delivery, promptly and in any event within 5 days of delivery;
14.4.2 in the case of any damage or defect which was not reasonably apparent on delivery, promptly and in any event within 5 days of that damage or defect becoming apparent or 12 months from the date of delivery, whichever is the shorter period;
14.4.3 failing which all liability on the Company’s part in respect of such shortage, damage or defect is excluded.
14.5 The Company makes no warranties as to the compatibility of the Equipment with the Customer’s existing equipment and systems.
14.6 In respect of any claim by the Customer alleging that the Company has failed to provide certain Services in accordance with the Agreement or any other duty owed by the Company to the Customer, or has failed to provide them at all:-
14.6.1 that claim is to be notified in writing to the Company within 12 months of the date on which the Services in question were provided; and
14.6.2 the Company is to be given a reasonable opportunity to remedy the failure in question;
14.6.3 failing which all liability on the Company’s part in respect of such failure is excluded.
14.7 The Company shall not be liable to the Customer (whether by reason of any negligence by the Company or any of its employees or agents, any non-fraudulent misrepresentation, any breach of contract or otherwise) for any indirect loss, damage, cost, expense, claim or other liability whatsoever nor for any loss of business, opportunities, contracts, goodwill, revenue, profit, time or anticipated savings, loss or damage to reputation and any loss/or corruption of any data or from wasted time, which arises out of or in connection with this Agreement.
14.8 The aggregate liability (inclusive of interest and legal and other costs) of the Company to the Customer in respect of all claims arising under or in connection with this Agreement (whether by reason of any negligence by the Company or any of its employees or agents, any non-fraudulent misrepresentation, any breach of contract or otherwise) shall not in any event exceed the lesser of £250,000 or the sums paid by the Company to the Customer for the relevant Equipment and Services in the year during which the relevant liability arises.
14.9 The Company will not be liable to the Customer or be deemed to be in breach of the Agreement as a result of any delay in performing, or failure to perform, any of its obligations under the Agreement where the delay or failure was caused by circumstances beyond the Company’s reasonable control, including (but not limited to) any governmental restriction, machinery breakdown, power failure, industrial action or shortage of raw materials.
14.10 The Company shall not be liable for the quality of input data received from the Customers’ host system, or for the quality of any data provided by the Customer, or by third parties on behalf of the Customer or on behalf of the Company, or for any failure in the Equipment caused by such data.
14.11 Nothing in the Agreement shall operate to limit or exclude the liability of either party for death or personal injury caused by the negligence of that party, or for fraudulent misrepresentation or for any other matter in respect of which liability cannot lawfully be limited or excluded.
14.12 Each provision excluding or limiting liability operates separately. If any provision or part of a provision is held by a Court to be unreasonable, the other provisions or parts shall continue to apply.
15. Termination, Breach & Insolvency
15.1 This clause 15 applies if any one or more of the following events occurs, or has occurred prior to the date of the Agreement and is continuing:
15.1.1 either Party commits a material breach of any of the provisions of the Agreement and in the case of a breach capable of remedy fails to remedy the same within 30 days (or such other period as the Parties reasonably think fit) after being served with a written notice specifying the breach and requiring it to be remedied; and/or
15.1.2 either Party makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a firm) has one of its partners become bankrupt or (being a body corporate) enters administration or goes into liquidation; and/or
15.1.3 a security holder takes possession, or a receiver or administrative receiver is appointed, overall or any of the property or assets of the Party; and/or
15.1.4 anything analogous to any of the foregoing occurs to either Party under the laws of any jurisdiction; and/or
15.1.5 either Party becomes insolvent; and/or
15.1.6 either Party ceases, or threatens to cease, to carry on business; and/or
15.1.7 the Customer fails to make any payment when it is due under the Agreement; and/or
15.1.8 either Party reasonably believes that any of the events described above is about to occur.
15.2 In this Clause “Insolvent” means the appointment of or the application to a court for the appointment of a liquidator, provisional liquidator, administrator, administrative receiver or receiver, the entering into a scheme of arrangement or composition with or for the benefit of creditors generally, any reorganisation, moratorium or other administration involving its creditors or any class of its creditors, a resolution or proposed resolution to wind it up, or becoming unable to pay its debts as and when they fall due or becoming deemed to become unable to pay its debts as and when they fall due within the meaning of Section 123 of the Insolvency Act 1986.
15.3 If this clause 15 applies then, without prejudice to any other right or remedy available:
15.3.1 both parties will be entitled to terminate the Agreement or (without prejudice to its right to terminate subsequently) the Company will be entitled to suspend any further deliveries of Equipment and/or further provision of Services without any liability to the Customer; and/or
15.3.2 if any of the Equipment has been delivered and/or any of the Services provided, but not paid for, the price applicable to that Equipment and/or Services and any other sums payable by the Customer under the Agreement will become immediately due and payable.
16. General
16.1 The Agreement may only be amended in writing by a document signed by an authorised representative of each party which is expressly stated to amend the Agreement.
16.2 Any delay or failure by either party in exercising any right or remedy arising under the Agreement shall not constitute a waiver of such right or remedy.
16.3 The Customer shall not be entitled to assign, sub-contract, sub-let, pledge or otherwise deal with the Agreement in whole or in part without the prior written consent of the Company. For the avoidance of doubt the Customer shall not sub-licence (or purport to sub-licence) the Works. The Company may sub-contract or assign its rights or obligations under this Agreement at any time without the consent of the Customer.
16.4 If any provision of the Agreement should be declared invalid by a court of law or other competent tribunal or governmental body then the remainder of the Agreement shall continue in full force and effect provided that it is capable of so doing.
16.5 Any notice to be given under the Agreement by either party to the other must be in writing and delivered by hand, first class letter or facsimile transmission to the address shown in the Client Agreement (or such other address as may from time to time be designated in writing by the relevant party for this purpose) and in the case of post will be deemed to have been given 2 working days after the date of posting, in the case of hand delivered notices, notice will be deemed to have been given on delivery and in the case of facsimile transmission, notice will be deemed to have been given 24 hours after despatch.
16.6 No term of the Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to the Agreement.
16.7 This Agreement shall be governed by and construed in accordance with the law of England and Wales and any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales, to which each of the parties irrevocably submits.
16.8 The Customer acknowledges that the Company may, and permits the Company to, use information about the Customer’s traffic including but not limited to origin, destination, duration, route and time, so that the Company:
16.8.1 can perform its obligations under the Agreement and maintain or upgrade the quality of the Services; and
16.8.2 can collate the information and other customers’ information to produce non-customer-specific statistics to assist the Company in its business planning.
16.9 Both parties must comply with the Data Protection Act 1998 when dealing with information given by the other party under the Agreement.
16.10 The Customer acknowledges and agrees that The Company may co-operate with and disclose information about the Customer and its use of the Services to the police and any other relevant authorities or organisations in connection with any misuse, or suspected misuse, of the Services, or other telecommunications services or with any suspected failure to comply with the law.
16.11 The Company may from time to time record telephone calls between the Customer and The Company in order to monitor such calls and with a view to improving the quality of the Services.
17. Force Majeure
17.1 Without prejudice to the Customer’s obligations to pay The Company for the charges for the supply of the Services neither party will be obliged to carry out any obligation under this Agreement where performance of such obligation is prevented due to any cause beyond the first party’s reasonable control, including but not limited to any act of God, lightning, flood, exceptionally severe weather, subsidence, fire, explosion, war, civil disorder, terrorism, national or local emergency, statutory obligation, labour shortage or labour dispute (including that party’s own employees provided that such party has taken reasonable steps to prevent and resolve such dispute) acts or omissions of local or central government or of other competent authorities or of persons for whom such party is
not responsible or any other cause whether similar or dissimilar outside its reasonable control
(“force majeure”), the party affected shall have no liability to the other for such delay or failure to perform.
17.2 If The Company is prevented from performing its obligations under this Agreement as a result of force majeure the Customer shall be released to the equivalent extent from its obligations to make payment for such services or complying with its obligations in relation thereto.
17.3 If any force majeure event described in 17.1 lasts for more than three months from the date of its commencement and that event prevents either party from performing all or a material part of its obligations during that period either party may, by giving 14 days written notice to the other party terminate the Agreement without prejudice to the rights of either party in respect of any antecedent breach of the terms of the Agreement.
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