Terms & Conditions of Sale

Standard Terms & Conditions of Sale

INTERPRETATION, THE DATA PROTECTION ACT AND RIGHTS OF THIRD PARTIES 
In these Conditions:- 
‘Business Hours’ means hours between 9.00am to 5.30pm, Monday to Friday excluding public holidays. 
‘Commencement Date’ means the date at which the Company starts providing the Telephone Service to the Customer. 
‘Company’ means KOG Systems Limited Company Reg No 08505585
‘Conditions’ means these conditions and any additional conditions agreed in writing between the Customer and the Company. 
‘Contract’ means the contract relating to the sale and/or lease of the Equipment and/or the provision of Maintenance Service and/or the supply of the Telephone Service. 
‘Customer’ means the person and/or corporate entity who enters into the Contract with the Company. 
‘Customer Equipment’ means equipment that is neither provided by the Company or the Service Provider which the Customer uses or plans to use with the Telephone Service. 
‘Equipment’ means the hardware and software sold and/or leased by the Company as detailed in the order form. 
‘Financer’ means a third party finance company which buys the Equipment from the Company and then leases the Equipment to the Customer whether or not leasing of the Equipment to the Customer by the Financer involves the provision of credit to the Customer by the Financer. 
‘Installation Address’ means the location the Equipment is to be installed at. 
‘Maintenance Service’ means a service to rectify a fault on the Equipment to be carried out by the Company, its employees or sub-contractors. 
‘Minimum Service Term’ means a period of 24 calendar months from the commencement date.
‘Premises’ means the place at which the Company agrees to provide the Equipment and/or Maintenance Service and/or Telephone Service. 
‘Service Failure’ means the continuous total loss of the Telephone Service provided by the Company to the Customer. 
‘Service Term’ means a minimum of 12 months and shall continue thereafter from year to year until terminated by the giving of at least one month’s written notice by either party to the other, such period of notice to end on the last day of the 12 month period or later, unless otherwise agreed in writing by the Customer and the Company. 
‘Service Provider’ means either British Telecommunications plc of 81 Newgate Street, London EC1A 7AJ or Gamma Telecom Ltd of 1 The Pentangle, Park Street, Newbury RG14 1EA 
‘Service Provider Equipment’ means any hardware or software provided and/or installed at the Premises by the Service Provider to provide the Telephone Service. 
‘Telephone Service’ means the provision of telephone line(s) and number(s) by the Company for the use of the Customer. 
Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re enacted or extended at the relevant time. 
The headings in these Conditions are for convenience only and shall not affect their interpretation. 
The Customer consents to the Company processing data provided by the Customer and relating to the Customer and its employees in accordance with The Data Protection Act 1998 and for this data to be held on computer files and/or paper, and used by The Company for the purposes of administration, accounting and marketing. 
Unless specifically provided for in these Conditions, no third party shall have any rights under or in connection with these Conditions. 
GENERAL 
1. Any notice to be given by the Company to the Customer under these Conditions shall be in writing addressed to the Customer at its registered office or principal place of business or such other address as may have been notified pursuant to this provision. Any notice to be given by the Customer to the Company under these Conditions shall be sent by registered post in writing addressed to the Company at its registered office or principal place of business or such other address as may have been notified pursuant to this provision. 
2. No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. If the Company delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver is limited to that particular breach. 
3. The Customer cannot transfer or assign or try to transfer or assign the Contract, or any part of it, to anyone else without the written permission of the Company. The Company may freely assign or transfer the Contract, or any part of it at its absolute discretion. 
4. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby. 
5. The Contract shall be governed by the laws of England and each party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales. 
6. Unless otherwise provided in this Contract no term in this Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Contract. 
7. Occasionally, for operational reasons, the Company may have to change the codes or numbers given to the Customer and/or interrupt the Service. Such changes to the codes or numbers will not be a breach of the Contract. Interruption of the Service will not be a breach of the Contract. In any event the Company will restore the interrupted Service as quickly as possible. 
8. The Customer accepts that occasionally and from time to time on reasonable notice the Company will provide written instructions regarding the Service. The Customer will follow these instructions. 
9. The Company may take instructions from a person who it reasonably thinks is acting with the Customer’s permission. 
10. The Customer consents to all calls it makes to the Company or receives from the Company being recorded and monitored. 
11. The Customer agrees that these Conditions shall also apply to any further transaction or course of dealings between the Company and the Customer in addition to this Contract.


BASIS OF THE SALE OR LEASE OF EQUIPMENT AND/OR THE PROVISION OF MANTENANCE SERVICE AND/OR THE TELEPHONE SERVICE
12. The Company shall sell and/or lease and the Customer shall purchase and/or lease the Equipment in accordance any written order of the Customer which is accepted by the Company, subject in any case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is accepted by the Company, or any such order is made or purported to be made, by the Customer. 
13. The Company shall provide the Maintenance Service and the Telephone Service to the Customer subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions. 
14. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company. 
15. In the event that the Company’s representative do grant the Customer a variation of these Conditions that allows the Customer a cooling off period in which to cancel the Contract (“The Right” ), the Right shall only be properly exercised if written notice is served on the Company in accordance with clause 1 hereof. 
16. The Company’s employees or agents are not authorised to make any representations concerning the Equipment and or the Maintenance Service and/or the Telephone Service unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. 
17. Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the application or use of the Equipment which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk, and the Company shall not be liable for any such advice or recommendation which is not so confirmed. 
18. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company. 
WARRANTIES 
19. Subject to the conditions set out below and the limitations upon its liability set out in clauses 31-47 the Company warrants that the Equipment will correspond with its specification at the time of delivery. 
20. The above warranty is given by the Company subject to the following conditions:-- 
20.a. the Company shall be under no liability in respect of any defect in the Equipment arising from any drawing, design or specification supplied by the Customer or from fair wear and tear, abnormal working conditions or willful damage or negligence by the Customer or a third party or the Customer’s failure to follow the Company’s instructions (whether oral or in writing), or the Customer’s misuse or alteration or repair of the Equipment without the Company’s approval in writing; 
20.b. the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Equipment has not been paid by the due date for payment; 
20.c. the Company does not warrant that the operation of the Equipment will be uninterrupted or error free; 
20.d. the Company does not warrant that the Equipment will be compatible with any of the Customer’s existing or future acquired telecommunications or computer equipment. 
21. Unless expressly agreed by the Company in writing, and without prejudice to any other provisions of these Conditions, the Company does not represent or warrant that the Customer’s operation, possession or use of the Equipment, whether alone or in association with any other goods supplied by the Company or any other person:-- 
21.a. will provide a reasonable or appropriate solution to the Customer’s telecommunications requirements; 
21.b. will provide a basis from which the Customer’s telecommunications requirements can be expanded or developed; 
21.c. will not result in the infringement of valid patents, copyrights or other intellectual property rights of any third parties. 
22. Subject and as expressly provided in these Conditions, and except where the Equipment is sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 
23. Where the Equipment is sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Conditions. 
LIMITATION OF LIABILITY 
24. The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees and sub contractors) to the Customer in respect of:-- 
24.a. any breach of its contractual obligations arising under the Contract; and 
24.b. any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract. 
25. Any act or omission on the part of the Company or its employees or sub contractors falling within clause 24 above shall for the purposes of clauses 26 to 36 be known as an ‘Event of Default’. 
26. The Company’s liability to the Customer shall not be limited in respect of:-- 
26.a. death or injury resulting from its own negligence or that of its employees or subcontractors; and 
26.b. all damage suffered by the Customer as a result of the implied statutory undertakings as to title, quiet possession and freedom from encumbrances. 
27. Subject to the limit set out in clause 28 below the Company shall accept liability to the Customer in respect of loss or damage to the tangible property of the Customer resulting from the negligence of the Company or its employees and sub contractors. 
28. Subject to the provisions of clause 26 above the Company’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the sum paid by the Customer to the Company for the particular goods or service in dispute in the case of any Event of Default. 
29. Subject to clause 26 above the Company shall not be liable to the Customer in respect of any Event of Default for loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same. 
30. If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under the Contract. 
31. The Customer shall afford the Company not less than 30 days in which to remedy any Event of Default. 
32. Any claim by the Customer which is based on any defect in the quality or condition of the Equipment or its failure to correspond with specification or as a result of damage in transit (where the Equipment was not delivered at the Company’s premises) shall (whether or not delivery is refused by the Customer) be notified to the Company within 7 days from the date of delivery or (where the defect damage or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect, damage or failure. If delivery is not refused by the Customer, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Equipment and the Company shall have no liability for such defect, damage or failure, and the Customer shall be bound to pay the price as if the Equipment had been delivered in accordance with the Contract. 
33. Where any valid claim in respect of any of the Equipment which is based on any defect in the quality or condition of the Equipment or its failure to meet specification or as a result of damage in transit is notified to the Company in accordance with these Conditions, the Company may replace the Equipment (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the Equipment (or a proportionate part of the price), but the Company shall have no further liability to the Customer. 
34. Except in the case of an Event of Default arising under clauses 26 or 32 above above the Company shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon the Company within 3 months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware. 
35. Nothing in clauses 24 to 36 shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled. 
36. Subject to the provisions of clause 26 above the Company’s entire liability other than for an Event of Default shall be limited to damages of an amount equal to £1,000.00. 
FORCE MAJEURE 
37. The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations hereunder, if the delay or failure was due to any cause beyond the Company’s reasonable control. 
TERMINATION 
38. The Company may suspend the Service or end the Contract (or both) at any time without notice in whole or in relation to part only of the Equipment and or the Maintenance Service and or the Telephone Service as the Company may in its absolute discretion elect, if one or more of the following applies: 
38.a. the Customer fails to pay any sum due hereunder on the due date or commits any material breach of the Contract which (in the case of a breach capable of remedy) shall not have been remedied within 10 days of a request in writing by the Company to remedy the same; 
38.b. the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or the Customer ceases, or threatens to cease, to carry on business; or the Company reasonably believes that any of the events mentioned above may occur in relation to the Customer; 
38.c. the Company or the Customer is sued for or threatened in connection with any infringement of valid patents, copyrights or other intellectual property rights of any third parties arising out of the Customer’s actual or proposed operation, possession or use of the Equipment. 
38.d. the Company’s licence expires or it is revoked; or 
38.e. a licence under which the Customer has the right to run its telecommunications system and connect it to the Company system is revoked, amended or otherwise ceases to be valid and is not immediately replaced by another valid licence; or 
38.f. the Customer breaches the Contract or any other Contract the Customer has with the Company; 
38.g. the Company reasonably believes that the Service is being used to make offensive, indecent, menacing, nuisance or hoax Calls or fraudulently or in connection with a criminal offence. This clause applies even if the Customer does not know that the Service is being used in such a way. 
39. Without prejudice to any other right or remedy available to it, the Company may in any of the circumstances mentioned above cancel the Contract in whole or in part or suspend any further deliveries under the Contract without any liability to the Customer, and if the Equipment has been delivered but not paid for all sums due under the Contract shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary. 
40. Any termination of the Contract shall be without prejudice to any other rights or remedies of the Company. 
41. In the event of termination by the Company under clause 38 the Company shall be entitled to recover from the Customer all costs, losses and expenses incurred by the Company including, but not limited to, the cost of removing the Service from the Customer’s premises. 
42. If the Service is suspended under clause 38.a above, the Company will send a notice to the Customer informing the Customer of the reason for the suspension and what action needs to be undertaken by the Customer before the Service can be re-instated. During the period of suspension of the Service the Customer will remain liable to pay all sums due under the Contract. 
43. If the Customer leases or hires the Equipment via a third party at the end of the term of the lease or hire Contract title to the Equipment reverts to the Company. The Customer may negotiate the purchase or further hire of the equipment from the Company.


THE SALE OR LEASE OF EQUIPMENT CONTRACT
The terms in this section only apply in respect of the sale and/or lease of Equipment 
ORDERS AND SPECIFICATIONS 
44. Save as set out in clause 45 below, the Customer’s order (“the Equipment Order”) for the purchase and/or leasing of the Equipment shall not be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative. 
45. In the event that the Customer withdraws and/or cancels the Equipment Order, or acts in a manner which indicates a clear wish to withdraw or cancel the Equipment Order, it shall be deemed for the purposes of clause 58 hereof that acceptance of the order has been given by the Company whether the Company or the Company’s authorised representative has provided written acceptance of the order or not. 
46. The quantity, quality and description of and any specification for the Equipment shall be those set out in the order form; if no specification is set out, the Equipment shall be supplied in accordance with the manufacturer’s standard specifications as these may be modified from time to time. 
47. The Company has the right without consulting the Customer, to change the Equipment after acceptance of the Equipment Order by the Company if the Equipment is no longer available with a like or improved product. 
SALE PRICE OF EQUIPMENT 
48. The price for the purchase of the Equipment (“The Full Purchase Price”) shall be the Company’s quoted price as set out in the order form, if no sum is set out in the order form, the sum previously quoted in writing to the Customer by the Company. In the event that the Customer requests a Full Purchase Price for the purchase of the Equipment after the Customer has agreed to lease the Equipment from the Company, and the Company agrees to provide one, the Full Purchase Price shall be the sum as quoted in writing by the Company at that stage. The quoted Full Purchase Price will only be valid for 30 days. 
49. The Full Purchase Price is based upon the Company’s standard scale of prices. The Company may by notice to the Customer increase the price of the Equipment by reference to any variation in its standard scale of prices at any time prior to delivery of the Equipment and the price (subject to clause 50) shall be deemed to be amended accordingly. 
50. Upon receipt of a notice pursuant to clause 49 above the Customer may on giving at least 10 days notice to the Company terminate the Contract in respect of those items of the Equipment to which the increase relates without incurring any liability to the Company in this respect. 
51. The Company may also by notice to the Customer at any time before delivery increase the price of the Equipment to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation to, any increase of duties, labour costs, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions. 
52. Except as otherwise stated by the Company or otherwise agreed in writing between the Customer and the Company, all prices are given by the Company on an ex works basis, and where the Company agrees to deliver the Equipment otherwise than at the Company’s premises, the Customer shall pay the Company’s charges for transport, packaging and insurance. 
53. The Full Purchase Price is exclusive of any applicable value added tax, which the Customer shall additionally pay. 
TERMS OF PAYMENT IN RESPECT OF SALE OF EQUIPMENT 
54. The Customer shall pay a deposit on acceptance of the order by the Company equal to 25% of the Full Purchase Price of the Equipment. The Company may allow the Customer additional time to pay the deposit or may waive the requirement for payment of a deposit at its discretion. The Company may allow the Customer to fund the Equipment Order under the terms of a third party finance Contract. The signing of a third party finance Contract in no way releases the Customer from its obligations under the terms of the Contract. 
55. The Company may invoice the Customer for the Full Purchase Price (less the amount paid as a deposit) of the Equipment on or at any time after delivery, unless the Equipment is to be collected by the Customer or the Customer wrongfully fails to take delivery of the Equipment, in which event the Company may invoice the Customer for the Full Purchase Price (less the amount paid as a deposit) at any time after the Equipment is ready for collection or (as the case may be) the Company has tendered delivery of the Equipment. 
56. The Customer shall pay the Full Purchase Price of the Equipment (less the amount paid as a deposit) within 30 days of the Company rendering the invoice unless the Company in its sole discretion allows the Customer a longer time to pay. Time for payment shall be of the essence of the Contract. 
FAILURE TO MAKE PAYMENT 
57. If the Customer fails to make any payment under clauses 54 to 56 above on the due date the Company may, without prejudice to any other right or remedy available to it:-- 
57.a. cancel the Contract or suspend any further deliveries; 
57.b. appropriate any payment made by the Customer to such of the Equipment (or the goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any appropriation by the Customer); and 
57.c. charge the Customer interest on a day to day basis (both before and after any Court Judgment) on the amount unpaid, at the rate of 1.5% per calendar month or part thereof until payment in full is made. 
57.d. suspend the Service until such time as all outstanding invoices and interest are settled in full. 
58. If the Customer withdraws and/or cancels the Equipment Order after it has been accepted by the Company, or acts in a manner which indicates a clear wish to withdraw or cancel an the Equipment Order which has been accepted by the Company, the Customer shall forthwith pay to the Company by way of liquidated damages as compensation for loss of the Contract and loss of profit: a sum equal to 50% of the Full Purchase Price as defined in clause 48 above. 
59. If the Customer withdraws and/or cancel the Equipment Order after it has been accepted by the Company, or acts in a manner which indicates a clear wish to withdraw or cancel the Equipment Order which has been accepted by the Company has been completed the Customer shall be liable to pay the Company’s costs, fees, charges, disbursements and expenses (including without prejudice to the generality of the foregoing those payable to Solicitors, Counsel, Experts and Bailiffs) on an indemnity basis of and in relation to or incidental to the recovery or attempted recovery of damages pursuant to clause 58 hereof and any steps in contemplation thereof and the Customer hereby indemnifies the Company in this respect. 
60. The Contract shall be deemed to have been concluded at the Company‘s premises in 7 Oaksmead, Carterton, Oxon OX18 1JX (“the Company’s Premises”) and in the event that the Customer incurs liability to the Company in accordance with 58 and 59 hereof the court with the appropriate jurisdiction to hear the claim shall be the court local to the Company’s Premises. 
DELIVERY OF EQUIPMENT 
61. Delivery of the Equipment shall be made by the Customer collecting it at the Company’s Premises at any time after the Company has sent the Customer a notice that the Equipment is ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Equipment to that place. The Company may deliver the Equipment by installments. 
62. Any dates quoted for delivery of the Equipment are estimates only and the Company shall not be liable for any delay in delivery of the Equipment howsoever caused. Time for delivery shall not be of the essence. The Equipment may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer. 
63. The Company may, by giving notice to the Customer at any time before delivery, substitute any part of the Equipment with other goods provided that the other goods are designed to perform materially the same functions and meet a similar specification. The price for the substituted goods shall be the cost of the substituted goods or the Equipment ordered, whichever is lower. 
64. If the Equipment is delivered in installments, each delivery shall constitute a separate contract which may be invoiced separately and failure by the Company to deliver any one or more installments in accordance with these Conditions or any claim by the Customer in respect of any one or more installments shall not entitle the Customer to treat the Contract as a whole as repudiated. 
65. If the Company fails to deliver the Equipment for any reason other than any cause beyond the Company’s reasonable control or the Customer’s fault, and if the Company is accordingly liable to the Customer, its liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar replacement goods over the price of the Equipment. 
66. If the Customer fails to take delivery of the Equipment or fails to give the Company adequate delivery instructions at the time stated for delivery the Company may, without prejudice to any other right or remedy available to it:- 
66.a. store the Equipment until actual delivery and charge the Customer for storage and insurance costs; or 
66.b. at its discretion deem that the Customer has withdrawn the Equipment Order such that clauses 13.2 (13.2.1 and 13.2.2 inclusive) and 13.3 shall apply. 
INSTALLATION, ACCEPTANCE AND TRAINING 
67. If the Contract includes installation of the Equipment, or the Company otherwise agrees in writing to install it, the following provisions shall apply. 
68. Time for the installation of the Equipment by the Company shall not be of the essence to the Contract. 
69. At delivery of the Equipment the Customer shall make available to the Company free of charge such labour and equipment as shall be necessary for the purposes of installation. 
70. The Customer shall before delivery complete the preparation of the Premises specified in the Contract for the installation of the Equipment (“Place of Use”) in the manner specified by the Company or, in the absence of such specification, in the relevant manufacturer’s manuals.
71. If the Customer fails to comply with the provisions of clauses 69 and 70 in timely fashion the Customer shall be deemed to have failed to take delivery of the Equipment for the purposes of clause 66 and in addition to the remedies set out in that clause and all other remedies available to it, the Company may charge for each subsequent delivery or attempted delivery of the Equipment to the Place of Use at the Company’s prevailing rates of delivery. The Company shall have no liability to the Customer in respect of late or partial delivery which results from such failure by the Customer. 
72. The Company shall start installation of the Equipment at the Place of Use on the delivery date of the Equipment and continue installation during the Company’s normal working hours and shall inform the Customer when installation is completed; installation shall be deemed to have been completed when the Company has submitted the Equipment to its standard tests and these have been successfully completed. The Customer shall accept (and in default be deemed to have accepted) the Equipment upon the date that the Company informs it that the Equipment has been installed. 
73. Unless set out in the Equipment Order (if accepted by the Company) the Company shall not be obliged to train or instruct the Customer or any of its employees in the operation or use of the Equipment. 
RISK AND PROPERTY 
74. Risk of damage to or loss of the Equipment, whether the Equipment is being leased by the Company to the Customer or purchased by the Customer from the Company, shall pass to the Customer:- 
74.a. 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 
74.b. 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. 
75. Notwithstanding delivery and the passing of risk in the Equipment, or any other provision of these Conditions, where:- 
75.a. the Customer is purchasing the Equipment from the Company the property in the Equipment shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the Full Purchase Price of the Equipment and all other goods and services for which payment is due to the Company from the Customer. 
75.b. the Customer is leasing the Equipment from the Company the property in the Equipment shall not pass to the Customer at any time. 
76. Until the property in the Equipment passes to the Customer where the Customer is purchasing the Equipment from the Company or at all times where the Customer is leasing the Equipment from the Company:- 
76.a. the Customer shall hold the Equipment as the Company’s fiduciary agent and bailee, and 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; 
76.b. the Customer shall not be entitled to sell, transfer, lease, charge, or otherwise deal with or encumber the Equipment; 
76.c. the Customer shall, without prejudice to the foregoing, account to the Company for the proceeds of sale or otherwise of the Equipment, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured; and 
76.d. the Company may at any time require the Customer to deliver up the Equipment to the Company and, if the Customer fails to do so forthwith, enter upon any premises of the Customer where the Equipment is stored and repossess it. 
77. Property in any software supplied (including, without limitation copyright and all other intellectual property rights therein) shall not pass to the Customer under the Contract under any circumstances whatsoever, and the Customer shall:- 
77.a. if required by the Company or the person authorised to do so, enter into a licence to use any software; 
77.b. comply fully and punctually with all of the provisions of such licence; and 
77.c. indemnify the Company and hold it harmless against any and all loss, damages, costs and expenses awarded against or incurred or agreed to be paid by the Company to any third party in respect of any action or claim arising out of any failure or delay by the Customer to comply fully and punctually with all the provisions of such licence or out of any infringement of such third party’s property or rights in any software. 
TELECOMMUNICATIONS 
78. If the Customer intends to attach the Equipment to any existing or future telecommunications network (“the Customer’s Telecommunications Network”) the Customer shall be responsible for:- 
78.a. obtaining all necessary consents for connecting the Equipment to the Customer’s Telecommunications Network; 
78.b. paying all charges from time to time levied for connection to the Customer’s Telecommunications Network; 
78.c. at all times complying with all conditions and regulations that shall be imposed as a condition of connection to the Customer’s Telecommunications Network. 
79. Any data transmission speeds given by the Company in relation to the Equipment are estimates only and are in any event subject always to the capabilities of the Customer’s Telecommunications Network and all conditions and regulations imposed in relation to it. 
CUSTOMER OBLIGATIONS 
80. The Customer shall be responsible to the Company for ensuring the accuracy of the details in the Equipment Order and for giving the Company any necessary information within a sufficient time to enable the Company to provide the Equipment (if any) in accordance with this Contract. If the Customer has requested an additional service which requires Customer Information the Customer agrees to supply all such information, in a true and accurate and complete form to the Company and if the Customer fails to do so, the Company shall have no liability whatsoever to the Customer for any failure or delay in delivering such additional services. 
81. The Customer will allow the Company’s servants, agents and sub-contractors, full, free and safe access to the Equipment during Business Hours and outside Business Hours (if the Company require such continued access) to complete any repair to enable maintenance of the Equipment to be carried out. 
82. The Customer shall be liable for any and all damage to Equipment, which is caused by (i) the act or omission of the Customer or the Customer’s breach of the terms of this Contract; or (ii) malfunction or failure of any equipment or facility provided by the Customer or its agents, employees or suppliers. 
83. The Customer shall identify, monitor, remove and dispose of any hazardous materials prior to any work being performed by the Company at the Installation Address and the Customer shall indemnify, defend and hold the Company harmless from any liability incurred in the use of or in connection with hazardous materials at the Installation Address. 
84. The Customer warrants and undertakes that it shall:- 
84.a. house the Equipment required to be housed at the Installation Address in accordance with the Company’s reasonable instructions as may be given from time to time; 
84.b. not move, modify, relocate or in any way interfere with the Equipment; 
84.c. not cause the Equipment to be repaired, serviced or otherwise attended to except by an authorised representative of the Company; 
84.d. not remove, tamper with, or obliterate any words or labels on the Equipment; and 
84.e. permit the Company to inspect or test the Equipment at all reasonable times. 
85. The Customer warrants that if the telephone system is to be connected to the Customer’s data network in any way, the Customer’s data network, software, server and desk top computers are compatible. In the event of any inadequacy the Company accepts no responsibility for the consequences thereof (inclusive of any upgrading of the customer’s network and or its personal computers to enable the equipment to function properly). 
THE PURCHASE OF THE EQUIPMENT BY A THIRD PARTY FINANCER 
86. The Company may, at its sole discretion, allow the Customer to fund the purchase of the Equipment by a third party finance Contract between the Customer and the Financer. 
87. If, after the Equipment Order has been accepted by the Company, the Customer enters into an Contract with a Financer for the Financer to purchase the Equipment from the Company and to then lease the Equipment to the Customer the following terms shall apply. 
88. Until the Company receives cleared funds in payment in full for the Equipment from the Financer, the Customer and the Company shall remain fully bound by all of the terms and conditions of the Contract including, but not limited to, those contained within Section A of the Contract. This clause applies whether or not the Customer and the Financer have performed or are in breach of the Contract between them. 
89. If the Company receives cleared funds in payment in full for the Equipment from the Financer, save as set out in clause 90 below, clauses 44 to 60 and 74 to 77 of these conditions shall be discharged. All other clauses in these conditions shall remain of full force and effect including, but not limited to, the clauses relating to the Maintenance Contract and the Telephone Service. Property in the Equipment will pass at that time to the Financer. 
90. If the Financer seeks to recover the payment in full it has made to the Company by reason of any breach of the Contract between the Customer and the Financer clauses 44 to 60 and 74 to 77 of these conditions shall be immediately reinstated.

 
THE MAINTENANCE CONTRACT 
The terms in this section only apply in respect of the Maintenance Service 
ORDERS AND SPECIFICATIONS 
91. Save as set out in clause 92 below, the Customer’s order for the Maintenance Service (“the Maintenance Order”) shall not be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative. 
92. In the event that the Customer withdraws and/or cancels the Maintenance Order, or acts in a manner which indicates a clear wish to withdraw or cancel the Maintenance Order, it shall be deemed for the purposes of clauses 94 and 110 hereof that acceptance of the Maintenance Order has been given by the Company whether the Company or the Company’s authorised representative has provided written acceptance of the Maintenance Order or not. 
93. Subject to the Customer paying to the Company the Annual Maintenance Charge, the Company will provide and the Customer will accept the Maintenance Service for the Equipment. The Maintenance Service will be provided during the Business Hours. The Company reserves the right to charge at its relevant overtime rates (current from time to time) in relation to Maintenance Service to be provided outside these hours. 
94. The Maintenance Service shall commence upon completion of the installation of the Equipment within the meaning of clause 72 or in the case of Customers existing equipment the Commencement Date of the Maintenance Order. 
95. Unless agreed in writing and signed by both the Customer and the Company, the Annual Maintenance Charge for the first year after the commencement of the Maintenance Service is included in the Full Purchase Price of the Equipment. 
96. Thereafter, the Customer shall pay the Annual Maintenance Charge promptly and in advance on the anniversary of the commencement date of the Maintenance Service. 
97. The Annual Maintenance Charge is exclusive of any applicable value added tax, which the Customer shall additionally pay. Time for payment of the Annual Maintenance Charge is of the essence. 
98. In providing the Maintenance Service, the Company will rectify any faults in the Equipment, which have been notified to the Company. On any items of the Equipment which are other than the main control unit the Company may choose to have a return to base and repair facility or it may choose to have repairs carried out under the manufacturer’s warranty, to be at the Company’s discretion. Once received by the Company the item will be returned to the Company’s supplier for repair or replacement without undue delay. All items of Equipment not specifically manufactured for the Siemens HiPath product range are not covered by the Maintenance Service, and the Customer shall be wholly responsible for the maintenance of such items. Unless prevented by circumstances beyond the Company’s control, response times will not be more than:- 
98.a. where in opinion of the Company there is a total failure of the Equipment - 4 working hours 
98.b. where in opinion of the Company there is a partial failure of the Equipment - 8 working hours 
99. The Company reserves the right to make a charge in accordance with its rates from time to time if it is requested to respond in circumstances where there is no fault with the Equipment or where the fault is directly due to the negligence of the Customer or its servants, agents or sub-contractors. 
100. The Customer must not alter or extend the system to which the Equipment is linked without prior written approval from the Company. If the Customer does alter or extend the system the Company has the right to charge the Customer for the verification of the altered or extended system and to make an additional charge for the maintenance of the same whether within the first year of the Service Term or in subsequent years. 
101. If the Company does provide prior written approval under clause 100 above for the extension or alteration of the system, the Customer must provide the Company with details of the installer of the changes or alterations or extension of the system to which the Equipment is linked and, if demanded by the Company, a copy of its relevant Pre-Connection Inspection Certificate from and access to all relevant records at the Installation Address. 
102. If the Equipment is not to be installed by the Company under the Contract, the Customer must provide the Company with details of the installer of the Equipment and, if demanded by the Company, a copy of its relevant Pre-Connection Inspection Certificate and access to all relevant records at the Installation Address 
103. The Annual Maintenance Charge shall be reviewed each year and may be increased on an anniversary of the commencement date of the Maintenance Service. If the Customer shall during the Service Term, order equipment in addition to the Equipment, the Company shall have a right to increase its charges accordingly for the maintenance of such additional equipment. The charge may also be altered in accordance with any alteration in the manufacturers Recommended Retail Price for the cost of replacement units, or in accordance with the Retail Price Index. 
104. The Maintenance Service will comprise of the Company’s reasonable efforts to correct any errors in the Equipment notified to it by the Customer which prevent the Equipment functioning in accordance with the Equipment Order. The Company cannot guarantee that corrections will be provided within any specific timescale. Equipment which is not manufactured by Siemens and cabling is not included in the Maintenance Service unless the Company at its own discretion agrees to replace it. 
105. Notification of errors will be made by the Customer by email, fax or post. 
106. The Customer will promptly provide the Company with all information and materials required by it for the purpose of investigation, diagnosis and correction of any reported error. The Company will not be liable for failure to provide, or any delay or error in providing, the Maintenance Service resulting from the Customer’s failure or delay in complying with this provision. 
107. The Customer shall, at its own expense, insure the Equipment for any loss and damage and maintain such insurance during the term of the Contract. 
108. In the event that the manufacturer of the maintained equipment discontinues manufacture of spare parts or withdraws support to the company, the company will use its reasonable endeavours to resolve any fault, however, the customer acknowledges that if a repair is not possible without upgrading the equipment, the customer will pay the RRP of the upgrade. 
TERMS OF PAYMENT 
109. If the Customer fails to make any payment on the due date the Company may, without prejudice to any other right or remedy available to it:- 
109.a. cancel the Contract or suspend any further service and 
109.b. charge the Customer interest on a day to day basis (both before and after any Court Judgment) on the amount unpaid, at the rate of 1.5% per calendar month or part thereof until payment in full is made. 
110. If the Customer withdraws and/or cancels the Maintenance Order after it has been accepted by the Company, or acts in a manner which indicates a clear wish to withdraw or cancel the Maintenance Order which has been accepted by the Company, the Customer shall forthwith pay to the Company by way of liquidated damages as compensation for loss of the Contract and loss of profit a sum equal to 75% of the total of the Annual Maintenance Charge. 
111. If (other than by the Customer giving at least 1 months notice to the Company with such notice to expire on the last day of the Minimum Service Term) the Customer terminates the Contract, or the Company terminates the Contract under clause 38 hereof, within the Minimum Service Term; the Customer shall forthwith pay to the Company by way of liquidated damages as compensation for loss of the Contract and loss of profit a sum equal to 75% of the total of the Annual Maintenance Charge. 
CUSTOMER OBLIGATIONS 
112. The Customer shall be responsible to the Company for ensuring the accuracy of the details in the Equipment Order and/or Maintenance Order and for giving the Company any necessary information within a sufficient time to enable the Company to provide the Maintenance Service (if any) in accordance with this Contract. If the Customer has requested an additional service which requires Customer Information the Customer agrees to supply all such information, in a true and accurate and complete form to the Company and if the Customer fails to do so, the Company shall have no liability whatsoever to the Customer for any failure or delay in delivering such additional services. 
113. The Customer will allow the Company’s employees and sub-contractors, full, free and safe access to the Equipment during Business Hours and outside Business Hours (if the Company require such continued access) to complete any repair to enable maintenance of the Equipment to be carried out. 
114. The Customer shall be liable for any and all damage to Equipment which is caused by (i) the act or omission of the Customer of the Customer’s breach of the terms of this Contract; or (ii) malfunction or failure of any equipment or facility provided by the Customer or its agents, employees or suppliers. 
115. The Customer shall identify, monitor, remove and dispose of any hazardous materials prior to any work being performed by the Company at the Installation Address and the Customer shall indemnify, defend and hold the Company harmless from any liability incurred in the use of or in connection with hazardous materials at the Installation Address. 
116. The Customer warrants and undertakes that it shall:- 
116.a. house the Equipment required to be housed at the Installation Address in accordance with the Company’s reasonable instructions as may be given from time to time; 
116.b. not move, modify, relocate or in any way interfere with the Equipment; 
116.c. not cause the Equipment to be repaired, serviced or otherwise attended to except by an authorised representative of the Company; 
116.d. not remove, tamper with, or obliterate any words or labels on the Equipment; 
116.e. permit the Company to inspect or test the Equipment at all reasonable times. 
   
The terms in this section only apply in respect of the supply of telephone services 
ORDERS AND SPECIFICATIONS 
117. Save as set out in clause 118 below, the Customer’s order for the Telephone Service (“the Telephone Service Order”) shall not be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative. 
118. In the event that the Customer withdraws and/or cancels the Telephone Service Order, or acts in a manner which indicates a clear wish to withdraw or cancel the Telephone Service Order, it shall be deemed that acceptance of the Telephone Service Order has been given by the Company whether the Company or the Company’s authorised representative has provided written acceptance of the Telephone Service Order or not. 
PAYMENT 
119. Pricing for the Telephone Call Service shall be as stated in the Company’s tariff as current from time to time. All prices are exclusive of any applicable Value Added Tax, which the Customer shall additionally pay. All prices are subject to change upon the Company giving not less than thirty days prior written notice to the Customer. 
120. All sums due to the Company under this Contract shall be paid in full by the Customer without any off-set whatsoever. 
121. The Company will invoice the Customer for the Telephone Service charges monthly. 
122. The Customer shall pay all charges for the Telephone Service by Direct Debit on the 1st day of each month or as soon after as the Direct Debit can reasonably be collected. The Company will send out the invoice not less than 7 days before the Telephone Service charges are due to be collected by Direct Debit. If the Customer pays any Telephone Service charges by any method other than Direct Debit, the Company may make an addition administration charge of £10 for each transaction and/or payment not made by Direct Debit. 
123. The time of payment of all sums due to the Company under this Telephone Service Contract shall be of the essence of the Contract. 
124. If the Customer fails to make any payment on the due date the Company may, without prejudice to any other right or remedy available to it, charge the Customer interest on a day to day basis (both before and after any judgment) on the amount unpaid, at the rate of 1.5% per calendar month or part thereof until payment in full is made. 
125. All charges payable under this Contract shall be calculated by reference to data recorded or logged by the Company and not by reference to data recorded or logged by the Customer. 
USE OF THE SERVICE 
126. The Customer undertakes to use the Telephone Service in accordance with such conditions as may be notified in writing to the Customer by the Company from time to time. 
PROVISION OF INFORMATION 
127. The Customer undertakes to promptly provide the Company, free of charge, with all information and co-operation that the Company may reasonably require to enable it to proceed without interruption with the performance of its obligations under this Contract. 
AVAILABILITY 
128. The Company will use all reasonable endeavours to ensure that the Telephone Service is available for the use by the Customer in accordance with the standards for the time being set out in the Company’s literature. The Company may from time to time introduce compensation schemes should the Company fail to achieve the standard set out in its literature. 
SUSPENSION OR TERMINATION OF TELEPHONE SERVICE 
129. The Company may at its sole discretion elect to suspend forthwith the provision of the Telephone Service until further notice, or terminate the Telephone Service Contract, without liability to the Customer on notifying the Customer in writing in the event that; (i) the Customer is in breach of any term of this Contract, or (ii) the Customer prevents or delays prearranged maintenance from being carried out, or (iii) the Customer is suspected in the Company’s reasonable opinion, of involvement with fraud or attempted fraud in connection with the use of the Service, or (iv) the Customer’s insolvency. 
130. Immediately upon suspension of the Telephone Service or termination of the Contract the Company may reallocate the Customer’s telephone number(s) at its discretion. 
PHONE BOOK AND DIRECTORY ENTRIES 
131. The Telephone Service includes the supply of the telephone number(s). The telephone number(s) will be put in the appropriate Service Providers Phone Books, together with the Customer’s details, and made available from Directory Enquiries Services unless the Customer requests otherwise. 
132. The Company may agree to a special entry in the Service Providers Phone Books at an additional charge. 
133. The Customer does not own any telephone number nor has any right to sell or to agree to transfer any telephone number provided to it by the Company. 
MANAGING THE SERVICE 
134. If the Customer reports a fault in the Telephone Service, the Company will respond in accordance with the level of repair service the Customer has chosen. 
135. If the Service Provider and/or the Company agrees to work outside the hours covered by the repair service the Customer has chosen, the Customer must pay the Company additional charges for doing so. 
136. If the Customer reports a fault and The Company and/or Service Provider finds that there is none, or that the Customer has caused the fault, The Company may charge the Customer for any work at the Company’s standard hourly rate. 
ACCESS TO AND PREPARING THE PREMISES 
137. The Customer agrees to prepare the Premises according to any instructions the Company and/or Service Provider may give, and provide the Company and/or Service Provider with reasonable access to the Premises. 
138. Upon notification from the Company that the work has been completed, the Customer will also, at its own expense, be responsible for putting items back and for any carrying out any necessary repairs or re-decoration to the Premises and the Customer agrees to indemnify the Company for any loss or damage caused to the Premises as a result of any work carried out at the Premises by the Company or Service Provider. 
139. If the Company or Service Provider needs to cross or gain access to land or property owned by a third party (for example a neighbour or landlord), or put the Equipment or Service Provider Equipment on the property of the third party, the Customer agrees at its own expense, to obtain the third party’s written permission. The Customer agrees to provide the written permission to the Company and/or Service Provider on demand. The Customer further agrees to indemnify the Company and/or Service Provider for any loss or damage caused to any property (real or personal) owned by the third party. 
140. The Service Provider will meet the Customer’s reasonable safety and security requirements when on the Premises and the Customer agrees to do the same for the Service Provider. 
141. The Customer agrees to provide, at its expense, a suitable place and conditions for Service Provider Equipment and where required a continuous mains electricity supply and connection points. 
142. The Customer agrees to look after any Service Provider Equipment and to pay for any repair or replacement needed if it is damaged, unless it is due to fair wear and tear, or is caused by Service Provider or anyone acting on the Service Provider’s behalf. 
CUSTOMER EQUIPMENT 
143. If the Customer wishes to connect Customer Equipment to the Service Provider’s network other than by using a Service Providers main telephone socket, the Customer must obtain the Company’s permission and also indemnify the Company for any loss or damage caused to the Equipment or any claim brought against the Company by reason of the use by the Customer of the Customer Equipment. 
144. Any Customer Equipment must be technically compatible with the Telephone Service and not harm the Service Provider’s network or another customer’s equipment; and connected and used in line with any relevant instructions, standards or laws. 
MISUSING THE SERVICE 
145. Nobody must use the Telephone Service to make offensive, indecent, menacing, nuisance or hoax calls; or fraudulently or in connection with a criminal offence. 
146. The Customer agrees to take all reasonable steps to make sure that this does not happen. The action the Company can take if this happens is specified in clause 7 hereof. If a claim is made against the Service Provider and/or the Company because the Telephone Service is misused in this way, the Customer must reimburse the Company in respect of any sums the Company is obliged to pay. 
147. The Customer accepts that nobody must advertise the telephone number(s) for the Telephone Service in or on a phone box without the Service Providers written consent. If this happens, the Company may suspend the Telephone Service or end this Contract, but the Company and/or the Service Provider will write to the Customer before taking this action. 
TERMINATION OF CONTRACT 
148. If the Customer withdraws and/or cancels the Telephone Service Order after it has been accepted by the Company, or acts in a manner which indicates a clear wish to withdraw or cancel the Telephone Service Order which has been accepted by the Company, the Customer shall forthwith pay to the Company by way of liquidated damages as compensation for loss of the Contract and loss of profit a sum equal to 3 months Line Rental for all lines detailed in the Telephone Service Order. 
149. If the Customer terminates the Telephone Service within the Minimum Service Term, or the Company terminates the Telephone Service under clause 38 hereof, within the Minimum Service Term; the Customer shall forthwith pay to the Company by way of liquidated damages as compensation for loss of the Contract and loss of profit a sum equal to the Line Rental for all lines for the remaining Minimum Service Term. 
150. If this Contract ends, the Company will refund any money owed to the Customer, after first deducting any money the Customer owes to the Company under this Contract or any other Contract the Company has with the Customer. 
 

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