And now, for the boring stuff...
Terms & Conditions
The following expressions have the following meanings:
“Agreement”: together these terms and conditions, the Schedule and the Order Form;
“Ancillary Device Support”: means the support service provided in respect of those ancillary devices listed in the Order Form, and as more specifically described in Paragraph 2.7 of the Schedule;
“BTU”: British Telecommunications plc and other members of the British Telecommunications plc group of companies from time to time, as the context shall require;
“CB”: Communicate Better Limited (Co. No. 04743770) of Brighton House, Trident Business Park, Daten Avenue, Birchwood, WA3 6BX;
“Charges”: the total charges payable by the Customer to CB under this Agreement including without limitation any Rental Payments;
“Commencement Date”: the date on which this Agreement is duly signed by the parties or such other date as may be stipulated on the Order Form;
“Customer”: the company, partnership, sole trader or other legal entity named in the Order Form;
“Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK;
“Equipment”: any and all equipment supplied by CB to the Customer including Rental Equipment (or procured by CB for the Customer under a rental arrangement with a third party) as set out in the Order Form whether telephony, telematics or IT equipment or all or any combination of any or all of them;
“Equipment Hire”: hire of Equipment identified in the Order Form to the Customer by CB on the terms of this Agreement including the Equipment Hire terms set out in paragraph 6 of the Schedule;
“Hosting Services”: the hosting or hosted services as further described in Paragraph 5 of the Schedule which may include the hosted software service solution, the hosted telephony solution, the pure hosting service, or any or all of them as prescribed in the Order Form;
“Installation”: the installation of Equipment by CB at the Customer's address as set out in the Order Form unless otherwise agreed in writing between the parties;
“Installation Date”: the date on which CB installs the Equipment;
“IT Support and Maintenance”: the support and maintenance of IT equipment as listed in the Order Form and as more particularly described in Paragraph 2.5 of the Schedule;
“Line Rental”: rental of ISDN, analogue or ADSL/broadband line(s) or any other line type or voice or data connectivity which may have been previously supplied by BTU or another network operator and as further prescribed at Paragraph 3.1 of the Schedule;
“Minimum Term”: the minimum term for each Service as set out in the Order Form;
“Network Services”: telephone call services and related call charges as further defined in Paragraph 4 of the Schedule;
“Normal Hours”: between 9:00am and 5:30pm Monday to Friday excluding public holidays;
“Order Form”: the order form containing the Customer and Service details either attached to or on the reverse of these Terms and which forms part of the Agreement;
“Rental Equipment”: the Equipment identified in the Order Form as being rented to the Customer as part of the Equipment Hire;
“Rental Payments”: the payments made by or on behalf of the Customer for hire of the Equipment.
“Rental Period”: the period of hire as set out in the Order Form or if not so set out, the term of the Agreement being the period from the Commencement Date for the Minimum Term and thereafter the Equipment hire shall continue on an annual rolling basis until terminated by either party giving not less than 90 (ninety) days written notice to the other party such notice to expire on an anniversary of the Commencement Date.
“Schedule”: the Schedule at the end of the core Terms and Conditions containing Service specific terms which apply where that Service is identified in the Order Form as being purchased by the Customer;
“Services”: the services provided by CB to the Customer which shall comprise Equipment, Installation, Equipment Hire, Support and Maintenance, Line Rental, Network Services, Hosting Services or any or all of them as set out on the Order Form and as further described in the Schedule;
“Site”: the Site at which the Services and Equipment are to be provided as set out in the Order Form;
“Software”: the computer program that is installed on the Equipment when supplied or which the Customer otherwise requires for use in conjunction with the Equipment or the Services in each case, including without limitation subscription software, whether sub-licensed by CB or licensed directly from a third party and such other proprietary software made available to the Customer as part of the Services;
“Support and Maintenance”: the support and maintenance service to be provided by CB to the Customer as further defined in Paragraph 2 of the Schedule and which may include IT Support and Maintenance, Ancillary Device Support, Telephony Support and Maintenance or any or all of them as prescribed in the Order Form;
“Telephony Support and Maintenance”: the support and maintenance provided in respect of Line Rental Services or Network Services or both and as more particularly described in Paragraphs 2.2 and 2.3 of the Schedule.
2.1 In consideration of the payment of the Charges, CB shall provide the Services to the Customer.
2.2 CB shall perform the Services with the reasonable skill and care of a competent telecoms and IT industry service provider. CB shall use reasonable efforts to correct failures in the Services as soon as is reasonably practicable taking account of all relevant circumstances and subject at all times to the provisions of this Agreement. For the avoidance of doubt, this shall not extend to any obligations otherwise dealt with under the Support and Maintenance Service.
2.3 CB reserves the right at any time and without prior notice to:
2.3.1 change the code, telephone number or the technical specification of the Service for operational reasons;
2.3.2 interrupt the Service for operational reasons including but not limited to where due to an emergency; and/or
2.3.3 give the Customer instructions that CB believes are necessary or desirable for health or safety reasons or for the quality of the Service.
2.4 CB shall use reasonable efforts to provide the Customer with the Services by such date as CB may advise but time for performance shall not be of the essence of the Agreement.
2.5 Additional terms shall apply to the relevant Services as set out in the Schedule.
2.6 CB shall not be responsible or liable for any delays in third party services or for any other third party failures. Any such delay will not give the Customer the right to refuse Installation, Services or payment due to CB.
2.7 Each Service shall be subject to the Minimum Term for that Service as set out in the Order Form. Renewal of a Service and termination thereof shall be in accordance with the Service specific provisions as set out in the Schedule.
2.8 If on an Order Form, a Service description is expressly included by reference to the quotation, then for the avoidance of doubt, the Service description set out in the quotation will be the only part of the quotation incorporated into this Agreement and all other parts of the quotation are specifically excluded.
3. CUSTOMER OBLIGATIONS TO CB
3.1 The Customer shall ensure that:
3.1.1 the Site(s) is prepared in accordance with CB instructions for the provision of the Services. The Customer will meet the costs of preparing the Site(s);
3.1.2 there is adequate electricity supply and suitable earth connection for the operation of any Equipment to be installed at the Site(s) and in case of multi-line unit access that there is a designated carrier network test and termination point;
3.1.3 assistance and co-operation is given to CB to enable CB to carry out its obligations under the Agreement including but not limited to giving full access to the Site(s) and all cabling and server rooms as may be required by CB; and
3.1.4 if the Equipment is to be connected to the BTU network or other outside services, arrangements are made for provision of all required circuits. The Customer shall pay all costs for circuit rentals, connection charges, inspections, commissioning and all other costs necessary for CB to provide the Services (as applicable).
3.2 The Customer agrees to hold harmless, indemnify and keep indemnified CB against any action, liability, penalties, costs, claims, losses, damages, proceedings and expenses (including legal costs), suffered or incurred by CB arising out of or relating to:
3.2.1 use of any third party or Customer equipment, software or services;
3.2.2 failure by the Customer to provide Site access and otherwise comply with its obligations under this Clause 3;
3.2.3 any improper, immoral or unlawful purpose;
3.2.4 any installation or modification of Equipment Software or Services by the Customer or a third party;
3.2.5 transportation or relocation of the Goods or Software or Services other than by CB; and
3.2.6 inaccurate or incomplete information provided by the Customer.
3.3 The Customer must advise CB in writing if it changes its address or the address of the Site and condition 8.4.4 shall apply.
3.4 The Customer must comply with all reasonable instructions given to it by CB and provide CB with all information relevant to the Services to be provided under this Agreement.
3.5 The Customer must not use the Equipment or Services unlawfully including but not limited to the operation of any telephone services which fail to comply with PhonePayPlus standards and guidance or other relevant regulations and legislation.
4. CHARGES AND PAYMENT
4.1 The Customer shall pay the Charges together with all value added tax and any other applicable taxes in respect of all the Services.
4.2 The Customer will pay interest at a rate of 10% (ten percent) on all overdue amounts from the date payment is due until the Customer has paid all outstanding sums in full.
4.3 Unless otherwise specified in this Agreement including, without limitation where payment is by Direct Debt regulations, plus standards and guidance payment shall be due in full within 30 (thirty) days of the date of the invoice.
4.4 In the event that the Customer fails to pay the Charges on the relevant due date, CB reserves the right at its option to:
4.4.1 suspend or cancel any or all of the Services until such time as it shall receive payment in full of the outstanding amount and CB reserves the right to levy an administration fee of £95 (ninety-five pounds) for lifting Service suspension and Charges shall continue to accrue during a period of suspension; or
4.4.2 in accordance with Clause 8.3, terminate this Agreement (whether a period of suspension has been imposed or not); and/or
4.4.3 [where the Customer is invoice monthly] charge a late payment fee of £15.
4.5 Any quotations provided by CB shall remain valid for the period stated in the quotation. If a Customer has not entered into a contract with CB before the lapse of the period specified in the quote, additional charges may be applicable.
4.6 If the Customer pays a deposit for any of the Services, all deposits shall be non-refundable and non-transferable such that they cannot be transferred to another entity.
4.7 If the Customer utilises any IT Cloud Services that attract additional costs from a third-party supplier, in particular cloud data ingress during a data restore or cloud disaster recovery service then these costs will be passed onto the Customer and the Customer indemnifies CB against all such costs.
4.8 CB may adjust the Charges annually in line with any percentage increase in the Retail Prices (All Items) Index (RPI) during the previous year. In addition, CB may increase the Charges at any time to reflect any increase in third party supplier charges. CB shall give the Customer not less than one month's prior notice in writing of the proposed changes.
4.9 All amounts payable under this Agreement by the Customer shall be paid in full without any set-off, counterclaim, deduction or withholding (other than as required by law).
5. LIMITATION OF LIABILITY
5.1 Under no circumstances whatsoever shall CB be liable whether in contract, tort or otherwise howsoever arising for any costs, claims, damages, liabilities or expenses in respect of;
5.1.1 any direct loss of profit or any direct loss of anticipated savings;
5.1.2 any indirect or consequential loss or damage howsoever arising including without limitation;
(a) indirect loss of profit;
(b) loss of use of money or loss of anticipated savings;
(c) loss of business or opportunity;
(d) loss of goodwill or damage to reputation; and/or
(e) loss of or damage to data.
For the avoidance of doubt the sub-clauses of this Clause 5.1.2 are intended by the parties to be distinct and severable.
5.1.3 inaccurate or incomplete information provided by the Customer;
5.1.4 failure by the Customer to properly maintain or operate the Equipment or Software or Services;
5.1.5 modification of the Equipment or Software or Services by anyone other than CB;
5.1.6 transportation or relocation of the Goods or Software or Services other than by CB;
5.1.7 Customer failure to allow CB proper access to the Goods or Software or Services.
5.2 Unless otherwise expressly stated, neither party’s liability in contract, tort or otherwise including any liability for negligence howsoever arising out of or in connection with this Agreement shall exceed:
5.2.1 £1,000,000 (one million pounds) for one event or series of related events; or
5.2.2 £2,000,000 (two million pounds) in total for all events arising in any twelve month period.
5.3 Nothing in this Agreement shall exclude or limit the liability of either party for fraudulent misrepresentation or for death or personal injury resulting from its own negligence or that of its employees, agents or sub-contractors.
5.4 The Customer shall provide to CB all data, records and other information as may be necessary for CB to provide the Services and otherwise perform its obligations under this Agreement. CB shall not under any circumstances be liable for any failure, delay or other default in the Services as a result of the Customer’s failure to comply with its obligations under this Clause 5.4.
5.5 CB does not guarantee that the Equipment , Software or Services will be continuous, uninterrupted or error free.
5.6 CB has given commitments as to compliance of the Services with relevant specifications in Clause 2.2 and the Equipment has the benefit of clause 1.9. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 or where the Agreement is for supply of Equipment only, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979, are to the fullest extent permitted by law excluded from the Agreement.
6.1 All proprietary rights including intellectual property rights in the Software vest in and shall remain vested in CB or the relevant third party owner as the case may be and nothing in this Agreement shall confer or be deemed to confer any such rights on the Customer. The Customer shall only use the Software subject to and in accordance with such licence terms as shall be stipulated for the use of the Software by CB or by the third party licensor as the case may be from time to time. The Customer shall be responsible for obtaining all rights, licences and warrants to use the Software including the right for CB to use the same for the purpose of this Agreement and further shall be responsible for compliance with all such licence terms.
6.2 The Customer shall not copy, decompile, modify, change, interfere with or reverse engineer the Software in any way, reveal its contents to a third party or grant a sub-licence. The Customer must ensure that the Software is only used in the permitted territories and for the permitted purpose as set out in the relevant licence terms.
7.1 CB may, without terminating this Agreement, suspend any or all of the Services if:
7.1.1 CB believes or is advised it is necessary because of technical problems or work on the network or for reasons of safety;
7.1.2 CB believes it is necessary to prevent fraud taking place;
7.1.3 CB is obliged to comply with an order, instruction or request of Government or persons purporting to act with Government authority, an emergency service organisation or other competent administrative authority;
7.1.4 CB needs to maintain or upgrade the CB designated carrier network at any site;
7.1.5 the Customer’s total Charges incurred are more than any credit limit which CB may impose on the Customer at CB’ discretion; or
7.1.6 in accordance with Clause 4.4 of this Agreement.
8. TERMINATION AND EFFECT OF TERMINATION
8.1 This Agreement shall come into force on the Commencement Date and shall continue in full force and effect unless and until terminated in accordance with the provisions contained herein or until the final Service is properly terminated in accordance with the Schedule. For the avoidance of doubt, termination of a Service element shall not operate to terminate this Agreement as a whole unless or until such time as all Services are terminated or the term expires. Neither a Service nor this Agreement may be terminated at will during a Minimum Term. Either party may terminate this Agreement as a whole at the end of the last Minimum Term for Services in the Agreement, by giving to the other not less than 90 (ninety) days written notice, such notice to expire on an anniversary of the Commencement Date on or after the end of the last Minimum Term.
8.2 Without prejudice to any other rights or remedies under this Agreement or at law, CB may terminate this Agreement or cancel a Service immediately by serving written notice on the Customer if any encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer or the Customer makes a voluntary arrangement with its creditors or becomes subject to an administration order or the Customer goes into liquidation (except for the purposes of amalgamation or reconstruction) or enters into a bankruptcy arrangement or anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Customer or the Customer ceases or threatens to cease to carry on its business.
8.3 Either party may terminate this Agreement or cancel a Service in the event that:
8.3.1 the other party commits a breach of any material obligation under this Agreement and (in the case of a remediable breach) fails to remedy the breach within 14 (fourteen) days of receiving written notice to do so. For the purposes of this Clause 8.3.1, a material breach shall include without limitation, a failure by the Customer to pay CB by the relevant due date.; or
8.3.2 the other party is in persistent breach of any obligation under this Agreement; or
8.4 CB may terminate this Agreement or cancel any or all Services in the event that:
8.4.1 the cancellation provisions under any leasing arrangement entered into by the Customer are invoked by the relevant leasing company; or
8.4.2 any licence, permission or other approval the Customer or CB requires from time to time to provide the Services expires, is revoked or otherwise ceases to be valid and is not immediately replaced by a further licence, permission or approval conferring on the Customer or CB the appropriate rights;
8.4.3 any contract between CB and a third party is terminated and such termination affects CB's ability to provide the Equipment or Services; or
8.4.4 the address of the Site changes.
8.5 Upon termination of this Agreement for any reason all amounts owed by the Customer to CB shall become immediately due and payable in full on demand, including without limitation, any Charges that would have been payable during any unexpired period of any Minimum Term and the Customer must:
8.5.1 immediately stop using the Services and any associated licences to the Customer shall terminate with immediate effect;
8.5.2 immediately stop using the Equipment and on CB's request and at the Customer's cost return it to CB (unless paid for by the Customer in full); and
8.5.3 permit CB to enter the Site(s) during normal business hours to remove the Equipment (unless paid for in full by the Customer);
8.6 The Customer’s obligations in respect of the Equipment will continue to apply until CB has removed the Equipment.
8.7 Upon termination of this Agreement CB will not be liable for any further or outstanding Services required by the Customer.
8.8 The provisions of Clauses 4, 5, 6, 8.4 to 8.7, 9 and 11 remain in force despite the termination or expiry of this Agreement together with any provisions which to give proper effect to their meaning, survive termination or expiry.
8.9 In the event that either party terminates a Service in accordance with the Service specific provisions in the Schedule then the remainder of the Services and the whole of this Agreement shall remain in full force and effect unless otherwise stated.
9.1 Each party shall treat as confidential and will only use for the purposes of this Agreement, the confidential information (“Confidential Information”) of the other party, which includes but is not limited to all information:
9.1.1 supplied to or obtained by it for the purposes of the Agreement including all know-how, designs, drawings, specifications, data sheets, sales and technical bulletins, service manuals, mechanical diagrams and contracts (including this Agreement);
9.1.2 all other information whether or not reduced to writing relating to the design, manufacture, use and service of the Equipment and Services; and
9.1.3 any other information relating to the parties, their businesses, customers, prices, services, software, development concept (including any technical specifications therefor), marketing, employees or suppliers, that may be divulged by either party in the course of its performance of this Agreement that is not in the public domain.
9.2 Confidential Information shall only be disclosed to those employees of the recipient party who need to know the same and to the extent necessary for the proper performance of this Agreement.
9.3 The recipient party undertakes to ensure that such employees are made aware of its confidential nature prior to such disclosure and that such employees are bound by obligations of confidentiality no less onerous than this Clause 9 in respect of the Confidential Information.
9.4 Nothing in this Clause 9 shall prevent CB from disclosing such information to the providers of any Software or a third party service provider (including but not limited to a network provider and any entity hiring out the Equipment) as shall be necessary from time to time to allow CB to comply with its obligations to such party or parties.
10. DATA PROTECTION
10.1 In this Clause 10, Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
10.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
10.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Provider is the Processor.
10.4 Without prejudice to the generality of Clause 10.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to CB and/or lawful collection of the Personal Data by CB on behalf of the Customer for the duration and purposes of this Agreement.
10.5 Without prejudice to the generality of Clause 10.2, CB shall, in relation to any Personal Data processed in connection with the performance by CB of its obligations under this agreement:
10.5.1 process that Personal Data only on the documented written instructions of the Customer which shall include the performance of the Services under this Agreement unless CB is required by law to otherwise process that Personal Data in which case CB shall promptly notify the Customer of this before performing the processing required unless the applicable law prohibits CB from so notifying the Customer;
10.5.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
10.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
10.5.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained;
10.5.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
10.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by law to store the Personal Data; and
10.5.8 maintain complete and accurate records and information to demonstrate its compliance with this Clause 10.
10.5.9 The Customer consents to CB appointing BTU as a third-party processor of Personal Data under this agreement. CB confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business. As between the Customer and CB, CB shall remain fully liable for all acts or omissions of any third-party processor appointed by it.
10.6 Either party may, at any time on not less than 30 days’ notice, revise this Clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
11. FORCE MAJEURE
11.1 Neither party shall be liable for any delay or failure in performing its obligations under this Agreement resulting from causes beyond its reasonable control including but not limited to fire, flood, strike or other form of industrial action (of its own or other employees), embargos, terrorist activity, war, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority or failure to provide service by any telecommunications provider (“Force Majeure Event”).
11.2 The affected party shall be entitled to a reasonable extension of time for the performance of such obligations. Such delay will not constitute a breach of this Agreement. If a default due to a Force Majeure Event shall continue for more than thirty (30) days then the party not in default shall be entitled to terminate this Agreement. Nothing in this Clause 11 shall preclude the Customer’s obligations to pay the Charges in accordance with Clause 4.
12.1 No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement shall operate as a waiver of them. The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by law.
12.2 CB shall be entitled to perform any of its obligations undertaken by it and to exercise any of the rights granted to it under this Agreement through any other company which at the relevant time is its associated company or subsidiary or subsidiary of any such associated company (Group Company) and any act or omission of any such company shall for the purposes of this Agreement be deemed to be the act or omission of CB. Further, CB may at its discretion, sub-contract any aspect of the Services to any third party as it may from time to time see fit.
12.3 This Agreement is personal to the Customer who may not without the written consent of CB assign, mortgage, charge or dispose of any of its rights under it or sub-contract or otherwise delegate any of its obligations under it. CB may at any time assign, transfer or deal in any other manner with any or all of its rights and obligations under this Agreement.
12.4 Nothing in this Agreement shall create or be deemed to create a partnership or a relationship of employment between the parties.
12.5 This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements and understandings between the parties with respect to its subject matter.
12.6 In entering into this Agreement each party acknowledges that it does not do so on the basis of and does not rely on any representation, warranty or other provision except as expressly provided in this Agreement and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Further, the Customer is hereby notified that CB’s employees and other representatives are not authorised to make any representations concerning the Services unless confirmed by a director of CB in writing.
12.7 This Agreement shall be governed by and construed in accordance with English Law and the parties hereby submit to the exclusive jurisdiction of the English Courts except with regard to enforcement in which case jurisdiction shall be non-exclusive.
12.8 Any notice to be given under this Agreement shall either be delivered personally or sent by pre-paid recorded delivery or registered post or by facsimile. The address for service of each party shall be its address stated on the Order Form or any other address for service subsequently notified by one party to the other. The notice shall be deemed to have been served if personally delivered at the time of delivery, if posted at the expiry of 3 days after posting and if sent by facsimile on receipt of a confirmation that the fax has been correctly transmitted. Service of notice by e-mail is not permitted.
12.9 No change to this Agreement shall be effective unless in writing and duly executed by a director of CB.
12.10 This Agreement is made for the benefit of each of CB's Group Companies and the Customer's undertakings and obligations in this agreement shall be enforceable by each of them to the fullest extent permitted by law as if they were a party to this Agreement. Except as expressly provided in this Clause 12.10, a person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce it. Any remedy which exists or is available apart from the Act is not affected.
12.11 If any provision of this Agreement is held by a Court of competent jurisdiction to be invalid or unenforceable then such provision shall be severed from the Agreement and all other provisions shall continue in full force and effect.
12.12 In the event of any conflict between the clauses of these Terms and Conditions and any Service specific provisions in the Schedule then the latter shall prevail.
12.13 Any order or request for an order which is sent to CB will constitute an offer to CB to purchase Services in accordance with this Agreement. No Order Form or other request for Services, whether sent to CB by electronic means (which shall include but is not limited to via e-mail or through a website link) or other means, shall be deemed accepted until confirmation of acceptance of an order has been issued by CB in writing by way of a signed Order Form Accordingly, there shall be no binding agreement until such time.
12.14 By placing an order and signing the Order Form, the Customer confirms that (by its authorised representative) it has read the Agreement in full and has given due consideration to its terms. All contracts between the Customer and CB shall be on the basis of the terms set out in this Agreement to the exclusion of any other terms which the Customer may seek to impose. The Customer shall be responsible for ensuring that the individual signing on behalf of the Customer organisation has appropriate authority and CB shall not make any investigation into whether such person has appropriate authority. Further, the person signing the Agreement warrants that he/she has due authority to sign on behalf of the Customer.
12.15 This Agreement may be signed electronically.
Service Specific Terms
The following Service specific terms shall apply in addition to the core Terms and Conditions where the relevant Services are purchased by the Customer as shown on the Order Form.
1.1 The Equipment shall either be purchased by the Customer, rented from CB or shall be hired to the Customer by a third party provider under the terms of a separate rental arrangement. The relevant option shall be as set out on the Order Form.
1.2 In the event that the Customer purchases the Equipment, the Customer shall pay 50% (fifty percent) of the Equipment Charges set out in the Order Form on signing the Agreement and 50% (fifty percent) on the Installation Date.
1.3 In the event that the Customer purchases the Equipment, risk shall pass on delivery and the ownership of the Equipment shall remain with CB unless and until the Customer pays for all Equipment in full and in respect of all deliveries of Equipment. Until that time the Customer will hold the Equipment as fiduciary agent and bailee for CB. The Customer must keep the Equipment separate from other equipment and it must be properly stored, protected, insured and identified as CB property. The Customer is not permitted to sell the Equipment and CB can insist on its return. Until such time as title shall pass in the Equipment, the Customer shall take good care of the Equipment and apply the same standards of care as if title had passed (including insurance cover) and if the Customer does not pay for the Equipment in accordance with this Agreement or if an event referred to at Clause 8.2 occurs in respect of the Customer, CB may enter on the Customer’s premises at a reasonable time, in order to recover the Equipment.
1.4 In the event that the Customer elects to rent the Equipment then the Customer shall comply in full with such terms and conditions as shall apply as between the Customer and the third party owner of the Equipment or if hiring from CB, paragraph 6 below. Compliance with such contract is entirely the responsibility of the Customer. The Customer shall in relation to such Equipment do all things as are necessary in order to enable CB to perform its obligations under this Agreement.
1.5 In the event of changes made to the Equipment, either by the Customer or by another third party which causes a fault, CB reserves the right to charge the Customer a call out charge and an appropriate fee to rectify the problem.
1.6 CB will test the Equipment at the Site upon installation in accordance with its acceptance test procedure as applicable from time to time. Upon satisfactory completion of such tests CB shall confirm to the Customer that the Equipment is correctly installed at which time the Customer will be deemed to have accepted the Equipment.
1.7 CB shall ensure that the performance of the Equipment meets the approved standard of the manufacturers as at the date of installation where Equipment is provided by CB.
1.8 CB will normally carry out Equipment installation and Maintenance during Normal Hours but may on reasonable notice require the Customer to provide access at other times. CB may work outside Normal Hours but shall not be obliged to do so and the Customer shall be liable for paying to CB any overtime charges for the relevant staff.
1.9 The Equipment is sold with the benefit of any manufacturers’ warranty (if any) that applies to such Equipment (subject to the terms and conditions of such manufacturer's warranty).
2. SUPPORT AND MAINTENANCE
Telephony Support and Maintenance
2.1 Paragraphs 2.2 and 2.3 below apply only to Telephony Support and Maintenance.
2.2 Telephony Support and Maintenance will be provided if indicated on the Order Form. Telephony Support and Maintenance includes the provision of parts and labour, site call out for investigation and diagnostics (if CB deems the same to be relevant), replacement of kit, remote diagnostics and dial in for fault rectification (only where agreed) together with access to a telephone helpdesk (available during Normal Hours).
2.3 Telephony Support and Maintenance is provided during Normal Hours. CB will use reasonable endeavours to respond to reported faults within 8 (eight) working hours but shall not be liable for a failure to do so and at no time will a failure by CB to respond within these guidelines be construed as a material breach of this Agreement.
IT Support and Maintenance
2.4 Paragraph 2.5 below applies only to IT Support and Maintenance.
2.5 IT Support and Maintenance will be provided if indicated on the Order Form and in accordance with the standard level, as also indicated on the Order Form. The standard level as appropriate is described in the Customer quotation and sets out the entitlement of what each standard includes.
Ancillary Device Support
2.6 Paragraph 2.7 below applies only to the Ancillary Device Support Service.
2.7 Ancillary Device Support will be provided if indicated on the Order Form. Ancillary Device Support shall include the provision of support services in respect of those ancillary devices as set out in the Order Form and shall include remote diagnostics and a telephone helpdesk (available during Normal Hours), dial in and to the extent that CB determines it to be necessary, may also involve attendance of an engineer. Ancillary Device Support shall be provided in accordance with the service description set out in the Order Form but will (unless otherwise stated in writing) include ancillary device resetting and reprogramming. Ancillary Device Support shall only include maintenance of hardware where expressly referred to in the Order Form.
Telephony Support and Maintenance and IT Support and Maintenance and Ancillary Device Support and Product Subscriptions.
2.8 Paragraphs 2.9 to 2.16 below apply to IT Support and Maintenance, Telephony Support and Maintenance, Ancillary Device Support and Product Subscriptions.
2.9 CB reserves the right to use remote diagnostics as it shall in its sole discretion determine and shall not be required to send out a site engineer unless it determines that that is necessary.
2.10 The Customer must notify CB as soon as it becomes aware of any fault in the Services and CB shall attempt to correct the fault as soon as is reasonably possible.
2.11 If CB provides assistance to the Customer for the resolution of the fault but it is subsequently discovered that the fault lies with neither the Equipment nor the Service provided by CB, then the Customer shall pay CB for the resolution of the fault on a time and materials basis at CB then current rates.
2.12 Support and Maintenance will start on the Commencement Date except where otherwise stated.
2.13 Support and Maintenance and Product Subscriptions will continue for the Minimum Term stated for each type of support service as shown in the Order Form. Following the Minimum Term, it will continue on an annual rolling basis until terminated by either party, giving the other not less 90 (ninety) days written notice such notice to expire on an anniversary of the Commencement Date.
2.14 The Customer shall pay all invoices for Support and Maintenance Services and Product Subscriptions in advance by monthly Direct Debit. If not paid by direct debit, a monthly charge of £4.50 will be charged and known as “Non Direct Debit Charge”.
2.15 CB may from time to time increase the charge for Support and Maintenance Services and Product Subscriptions to account for cost increases and/or additional Equipment being installed and supported. If this increase exceeds 10% (ten percent) the Customer will be informed in writing before the renewal date as set out in Paragraph 2.13 above.
2.16 Support and Maintenance will not cover the following:
2.16.1 failure due to changes or to disconnection from such system and equipment by the Customer unless approved by CB;
2.16.2 failure caused by alterations to the system or any equipment by a third party which have not been prior approved by CB;
2.16.3 failure of any third party supplier or connected services;
2.16.4 changes in the environment, including but not limited to making good defects in or caused by electricity supply;
2.16.5 ancillary items including but not limited to answer phones, call loggers, payphones, public address systems, printers, external music on hold sources, system cabling and consumables together with all other ancillary and external items unless otherwise agreed in writing; or
2.16.6 damage to any equipment or kit on the system cause by the Customer;
2.16.7 a force majeure event as defined in Clause 10.
2.16.8 failure due to any form of virus infection no matter how and when the infection was contracted in the first instance. Although all endeavours and diligence will be taken to retrieve lost and encrypted data, the data and its perceived value is in no way the responsibility of CB.
2.17 In the event that the Customer fails to provide CB with the required notice period in order to terminate a Support and Maintenance Service or Subscription or in the event that it purports to terminate a Service or Subscription within the Minimum Term then CB reserves the right to charge a fee to the Customer comprising the remaining Charges which would otherwise have been payable up to the end of the Minimum Term or the end of the subsequent period had the correct notice been given as the case may be.
3. LINE RENTAL
3.1 CB will provide the Customer with either analogue PSTN lines, ISDN II or ISDN30 Digital Circuits or ADSL or broadband lines or such other line type or voice or data connectivity as may be agreed, between the Site and the telephone network. Line type is shown on the Order Form.
3.2 The Line Rental Service is invoiced monthly in advance. The amount of rental and classification of lines are detailed in the “CB Telephone Line Products and Services Pricelist” available on request.
3.3 The Customer shall terminate all prior line rental agreements with BTU or any other network provider immediately prior to the commencement of the Line Rental Service in accordance with this Agreement. The Customer authorises CB to use all information the Customer provides in order to liaise directly with BTU.
3.4 The Customer agrees to take the Line Rental Services specified in this Agreement for the Minimum Term. Following the Minimum Term the Line Rental Services shall continue on an annual rolling basis until terminated by either party giving not less than 90 (ninety) days written notice to the other party such notice to expire on an anniversary of the Commencement Date.
3.5 In the event that the Customer fails to provide CB with the required notice period in order to terminate the Line Rental Service or in the event that it purports to terminate the Line Rental Service within the Minimum Term then CB reserves the right to charge a fee to the Customer comprising the remaining Line Rental charges which would otherwise have been payable up to the end of the Minimum Term or the end of the subsequent period had the correct notice been given as the case may be.
4. NETWORK SERVICES
4.1 CB will provide the Network Services to the Customer being the ability to make or receive telephone calls over the public network.
4.2 CB will charge the Customer at the current stated tariff as stipulated in CB’s list from time to time. CB will invoice the Customer monthly in arrears and the Customer shall pay the charges by the fourteenth day after the date of the invoice by Direct Debit. All charges payable under this Agreement shall be calculated by reference to data recorded and logged at the telephone exchange by CB, and not by reference to data recorded or logged by the Customer. Customers who do not pay the monthly invoice by Direct Debit will have a £4.50 (four pounds and fitty pence) levy applied to their account every month. All tariffs are exclusive of VAT and subject to change from time to time. CB shall inform the Customer of any increases in tariff in writing 30 (thirty) days prior to any change.
4.3 CB may on 7 (seven) days written notice to the Customer, stipulate a reasonable monetary limit that will apply to all call charges due or which will become due to CB from the Customer. If at any time the amount of charges payable to CB exceeds the stipulated monetary limit, CB will immediately notify the Customer and any amounts incurred in excess of the stipulated monetary limit will immediately become due and payable.
4.4 The Customer agrees to take the Network Services specified in this Agreement for the Minimum Term. Following the Minimum Term the Network Services shall continue on an annual rolling basis until terminated by either party giving to the other not less than 90 (ninety) days written notice to the other party such notice to expire on an anniversary of the Commencement Date.
4.5 In the event that the Customer fails to provide CB with the required notice period in order to terminate the Network Service or in the event that it purports to terminate the Network Services within the Minimum Term then CB reserves the right to charge a fee to the Customer comprising a sum equal to the average of a full month’s Network Service (call) charges calculated over the previous three month’s billing period.
5.1 The Hosting Service means as indicated on the Order Form:
5.1.1 a hosted software service solution whereby the Customer is granted a non-transferable, non-exclusive licence by CB to use hosted software (whether CB proprietary software or third party software or both); or
5.1.2 a hosted telephony service solution whereby the Customer is granted a non-transferable, non-exclusive licence by CB to use a centrally hosted VOIP telephone system with extensions rented and accessed over the Internet; or
5.1.3 a separate, standalone service in respect of Customer software but CB shall not be liable to host any Customer licensed or proprietary software unless it expressly agrees to do and subject to compliance with and implementation of such security measures by the Customer as CB shall in its absolute discretion determine; or
5.1.4 or any or all of the above.
5.2 Access to the Hosting Service solution shall be limited to the number of authorised users and shall be for a period not less than the Minimum Term for hosting as each set out in the Order Form or otherwise as may be agreed between the parties in writing from time to time. Accordingly, CB grants a licence to the Customer to use the Hosting Service in accordance with the terms of this Agreement.
5.3 Access to the Hosting Service shall at all times be limited strictly to the Customer (to include its employees and independent contractors but shall not include any third party whatsoever). Further, access rights to the Hosting Service shall not extend to any other entities within the Customer group of companies.
5.4 CB shall monitor the Customer’s compliance with the terms of this Agreement in its use of the Hosting Service. If CB finds that the Customer has exceeded the rights granted to it in accordance with the terms of the licence as referred to at Paragraphs 5.2 and 5.3 above, CB reserves the right to raise additional charges to reflect any increase in the number of users or other unauthorised access in accordance with its standard charges for the Hosting Service in force at the time of the discovery of the breach and such charges shall be applied in respect of the full period during which the breach occurred.
5.5 Access rights to the Hosting Service shall be treated at all times securely by the Customer who shall ensure that it and all its authorised users to whom passwords are issued, keep the same secure and confidential.
5.6 A breach by the Customer of any of its obligations under Paragraphs 5.1 to 5.5 as well as any failure to pay any and all sums due for any of the Services shall entitle CB to suspend (for as long as the breach continues) or terminate the Hosting Service at its option (or both). For the avoidance of doubt, nothing in this Paragraph 5.6 is intended to affect CB’s termination rights and other remedies as otherwise set out in this Agreement.
5.7 In the event that separate hosting is to be provided in respect of Customer licensed or proprietary software as referred to at Paragraph 5.1.3, the Customer shall be responsible for obtaining all necessary consents, permissions and licences as may be required in order to access and use such software and to allow CB to host the same.
5.8 The Customer shall not use the Hosting Services to provide services to third parties nor sub-contract the Hosting Services in any way.
5.9 The Customer shall remain responsible for all data used in connection with the Hosting Service and the software and in the event of any loss or damage to Customer data, the Customer’s sole and exclusive remedy shall be for CB to use reasonable commercial endeavours to restore the lost or damaged Customer data from its backup system. The Customer is referred to the exclusions of liability set out at Clause 5 of this Agreement. CB reserves the right to sub-contract the Hosting Services and the Customer hereby acknowledges such arrangement and the limitation on CB’s liability in respect of loss or damage to data is acknowledged by the Customer in the context of this arrangement and is further limited by CB’s ability to recover from its sub-contractor.
5.10 The Customer agrees to take the Hosting Service for the Minimum Term. Following the Minimum Term, the Hosting Service shall continue on an annual rolling basis until terminated by either party giving to the other not less than 90 days written notice such notice to expire on an anniversary of the Commencement Date.
5.11 In the event that the Customer fails to provide CB with the required notice period to terminate the hosted service, or if it purports to terminate the Hosting Service within the Minimum Term CB reserves the right to charge a fee to the Customer, comprising a sum equal to the average of a full month’s Hosting Service charges calculated over the previous three month period.
5.12 The fee set out in the Order Form is based on the stated number of authorised users. In the event that the Customer wants to increase the number of authorised users, the fee shall increase by the additional per user charge as set out on the Order Form, beginning in the month during which the additional rights are granted.
5.13 The Customer shall indemnify CB against any and all liabilities, claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with CB's use as part of the Hosting Services, of any Customer proprietary software or third party software procured by the Customer including but not limited to any claim or allegation of a claim of infringement of third party intellectual property rights and/or any damage to CB's equipment, system or services occasioned by the same. In dealing with such matters, CB shall give the Customer prompt notice of any such claim and provide reasonable co-operation to the Customer in dealing with such claim, at the Customer's expense.
5.14 CB does not warrant that the Hosting Service will be uninterrupted or error free.
6. EQUIPMENT HIRE
6.1 CB shall hire the Equipment identified in the Schedule as Rental Equipment to the Customer for use at the Site subject to the terms and conditions of this Agreement.
6.2 CB shall not, other than in the exercise of its rights under this Agreement or applicable law, interfere with the Customer's quiet possession of the Rental Equipment.
6.3 The Rental Period starts on the Commencement Date and shall continue for the period set out in the Order Form or if none, the term of this Agreement unless and until this Agreement is terminated earlier in accordance with its terms.
6.4 The Rental Equipment shall at all times remain the property of CB, and the Customer shall have no right, title or interest in or to the Rental Equipment (save the right to possession and use subject to the terms and conditions of this Agreement).
6.5 Risk in the Rental Equipment shall pass to the Customer on delivery and shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Rental Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Rental Equipment is redelivered to CB. During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the adequate insurances of the Rental Equipment which shall be subject to CB's approval and shall upon CB's request name CB on the policies as a loss payee in relation to any claim relating to the Rental Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies. The Customer shall provide proof of such insurances and payment of premiums on request from CB. If the Customer fails to effect or maintain any of the insurances required under this agreement, CB shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
6.6 The Customer shall give immediate written notice to CB in the event of any loss, accident or damage to the Rental Equipment during the Customer's possession of the Rental Equipment.
6.7 The Customer shall during the term of this Agreement:
6.7.1 ensure that the Rental Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
6.7.2 take such steps (including compliance with all safety and usage instructions provided by CB) as may be necessary to ensure, so far as is reasonably practicable, that the Rental Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
6.7.3 maintain at its own expense the Rental Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Rental Equipment, subject to the terms of any Support and Maintenance Agreement;
6.7.4 make no alteration to the Rental Equipment and shall not remove any existing component(s) from the Rental Equipment without the prior written consent of CB Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in CB immediately upon installation;
6.7.5 keep CB fully informed of all material matters relating to the Rental Equipment;
6.7.6 keep the Rental Equipment at all times at the Site and shall not move or attempt to move any part of the Rental Equipment to any other location without CB's prior written consent;
6.7.7 permit CB or its duly authorised representative to inspect the Rental Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Rental Equipment may be located, and shall grant reasonable access and facilities for such inspection;
6.7.8 maintain operating and maintenance records of the Rental Equipment and make copies of such records readily available to CB, together with such additional information as CB may reasonably require;
6.7.9 not, without CB's prior written consent, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Rental Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
6.7.10 not without CB's prior written consent, attach the Rental Equipment to any land or building so as to cause the Rental Equipment to become a permanent or immovable fixture on such land or building. If the Rental Equipment does become affixed to any land or building then the Rental Equipment must be capable of being removed without material injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Rental Equipment from any land or building and indemnify the Customer against all losses, costs or expenses incurred as a result of such affixation or removal;
6.7.11 not do or permit to be done any act or thing which will or may jeopardise CB's right, title and/or interest in the Rental Equipment and, where the Rental Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that CB may enter such land or building and recover the Rental Equipment both during the term of this agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of CB of any rights such person may have or acquire in the Rental Equipment and a right for CB to enter onto such land or building to remove the Rental Equipment;
6.7.12 not suffer or permit the Rental Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Rental Equipment is so confiscated, seized or taken, the Customer shall notify CB and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Rental Equipment and shall indemnify CB on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
6.7.13 not use the Rental Equipment for any unlawful purpose;
6.7.14 ensure that at all times the Rental Equipment remains identifiable as being CB's property and wherever possible shall ensure that a visible sign to that effect is attached to the Rental Equipment;
6.7.15 deliver up the Rental Equipment at the end of the Rental Period or on earlier termination of this Agreement at such address as CB requires, or if necessary allow CB or its representatives access to the Site or any premises where the Rental Equipment is located for the purpose of removing the Rental Equipment; and
6.7.16 not do or permit to be done anything which could invalidate the insurances referred to in paragraph 6.5.
6.8 The Customer acknowledges that CB shall not be responsible for any loss of or damage to the Rental Equipment arising out of or in connection with any negligence, misuse, mishandling of the Rental Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer undertakes to indemnify CB on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with the terms of this Agreement.
6.9 Upon termination of this Agreement, however caused:
6.9.1 CB's consent to the Customer's possession of the Rental Equipment shall terminate and CB may, by its authorised representatives, without notice and at the Customer's expense, retake possession of the Rental Equipment and for this purpose may enter the Site or any premises at which the Rental Equipment is located; and
6.9.2 without prejudice to any other rights or remedies of CB, the Customer shall pay to CB on demand:
(a) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued;
(b) any costs and expenses incurred by CB in recovering the Rental Equipment and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
6.10 Upon termination of this Agreement by CB pursuant to paragraphs 8.2, 8.3 or 8.4, any other repudiation of this agreement by the Customer which is accepted by CB, without prejudice to any other rights or remedies of CB, the Customer shall pay to CB on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period.