axisfirst Terms & Conditions |
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1. axisfirst general terms and conditions |
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Terms & ConditionsDefinitions1. The following definitions shall apply. “Company” means Systems AXIS Limited. “Contract” means the contract between the Company and the Customer to which on any particular occasion these terms and conditions relate. “Customer” means the customer of the Company under the Contract. “Goods” means the goods or services to which the Contract relates. “Software” means such (if any) of the Goods as are within the meaning of that term as currently used in the computer industry. “Special Software” means such items (if any) of Software as are not standard items supplied by the Company and are specially produced or obtained by it in accordance with the Customer's requirements. “Equipment” means such of the goods as are not Software. “Special Condition” means only a special condition or term which has been agreed by the Company and which is set out in the part of the Contract signed on behalf of the Company. “Standard Charges” means the charges normally made by the Company from time to time as certified in writing by the Company. General2. These terms and conditions shall apply to all contracts made between the Company and the Customer, whether written or oral, and whether expressly mentioned or not, save that contracts made after the Company has notified the Customer of the issue of a later edition shall be subject to such later edition. 3. These terms and conditions shall apply to the Contract save so far as varied by or inconsistent with any Special Condition. No other terms or conditions shall have any effect whatsoever and if after the existence of these terms and conditions has become known to the Customer, the Customer makes or gives to the Company any conditional offer order or acceptance, the Company shall have the right (but shall not be bound) to treat the same as unconditional either in whole or in part, as it shall in its absolute discretion think fit. 4. The Customer shall have no right to modify cancel or change the delivery date applicable to the Contract without prior written consent of the Company. 5. Neither the Contract nor any document forming part of the Contract shall be binding on the Company unless it has been accepted by the Company under the signature of one of its Directors or other authorised signatory save that the Company may at its discretion accept any order placed by the Customer by taking any step to fulfil such order in which case the taking of such step shall be deemed to be sufficient acceptance of the order by the Company but with the right of the Customer at any time after submitting its order to the Company to request the Company to give written acceptance of such order within fourteen days after such request and to treat the order as being refused by the Company if written confirmation of acceptance by the Company is not given within such time. 6. No quotation or estimate given by the Company shall be deemed to be an offer by the Company unless expressed to be a “fixed quotation” and valid until a given date in which case it shall be open to acceptance by the Customer but only by written acceptance delivered to the Company by such date. 7. The headings appearing in these terms and conditions are for guidance only and shall not in any way be deemed to affect or prejudice the interpretation or effect thereof save that those which appear under the heading “Special Software” shall only apply to the Special Software (if any) covered by the Contract and those which appear under the heading “Installation” shall only apply if the Contract provides for installation of the Goods by the Company. 8. It is intended that these terms and conditions and any Special Conditions shall be reasonable as between the Company and the Customer having regard to the nature of the Contract ;but if at any time any of them is either unenforceable or void at law it shall not adversely affect or prejudice the remainder of them or the Contract and it shall be deemed to be excluded from these terms and conditions and (where possible) to be replaced by such other enforceable and valid term or condition as shall be as near as may be to the original in both form and effect. Price 9. Unless the Customer accepts a “fixed quotation” as mentioned above or unless the part of the Contract signed on behalf of the Company states that the price is fixed, the Company reserves the right to increase any price in accordance with its Standard Charges at the date of delivery to the Customer. 10. A “fixed quotation” takes into account freight rates, currency exchange rates, import and other duties and taxes of whatsoever kind (other than VAT) deemed by the Company to be applicable at the date of the Contract. It may be adjusted in accordance with the amount of any charges beyond the control of the Company in such rates, duties or taxes payable or collectable by the Company including those payable by the Company in obtaining a supply from overseas but if so requested by the Customer the Company shall produce proof of such charges to the Customer. 11. The Customer shall pay VAT on any sum payable to the Company to which it applies at the prevailing rate at the appropriate time. 12. For the purposes of the remainder of these terms and conditions “the price” shall be deemed to be the basic price payable by the Customer plus the amount of any such charges as aforesaid and VAT. 13. Unless otherwise expressly agreed the price does not include installation, operator training, travelling or hotel expenses and if any such are provided or carried out by the Company the Customer shall pay the Company its Standard Charges for them. 14. Save where installation is to be carried out by the Company, the Customer will pay the Company any delivery charges incurred by the Company if the Company arranges for delivery to or on behalf of the Customer. Payment15. Save in respect of Special Software and Installation (as to which see paragraphs 42.5 and 43.9) the price (less any deposit paid) shall be paid within thirty days of the date marked on the invoice sent by the Company to the Customer or (if later) within thirty days of the date on which the Goods are ready for collection by or delivery to the Customer. 16. If any sum payable by the Customer to the Company is not paid within seven days of the due date the Company shall have the right to charge interest on the balance from time to time outstanding at such annual rate as shall be 5% above the base rate of Barclays Bank PLC from time to time in force calculated on a daily basis from the date on which such sum became due down to the actual date of payment. Delivery and Acceptance17. Delivery dates quoted are estimates only and the Company shall not be responsible for any delays due to causes beyond its control. 18. The Company reserves the right to make delivery by instalments. In that event these terms and conditions shall apply to each delivery as though it were the subject of a separate Contract. 19. Save as mentioned below the Customer shall take delivery at the Company's premises within seven days of the Company sending written notice to the Customer that the Goods are ready for collection. 20. If the Company agrees to make delivery to the Customer such delivery shall be effected to the address of the Customer as shown in the Contract, unless otherwise agreed. Even in such cases, the Company reserves the right to request the Customer to nominate and/or appoint its own carrier for the purposes of effecting such delivery and in that case if delivery charges are included in the price the Company will reimburse the Customer with the amount of such charges. 21. Delivery shall be deemed to be effected at the time when the Customer effects collection from the Company or in cases where collection is not effected by the Customer or on its behalf, when delivery is made to the address of the Customer. Unless the Customer shall delivery written notice to the Company within seven days of delivery to the effect that the Goods are damaged or subject to shortage and unless the Customer shall in all respects comply with the terms and conditions of the Contract with the carrier (if any) the Customer shall be deemed to accept that the Goods have been delivered in accordance with the terms of the Contract and shall not thereafter make any claim against the Company in respect of any such damage or shortage. 22. If the Company agrees to arrange for delivery of the Goods the Customer shall give verbal and written notice to the Company forthwith if the Goods are not received within three days of the expected delivery date or within such lesser period within which such notice is required to be given by the carrier (if any) and if the Customer fails so to do delivery shall be deemed to have been effected whether or not it has actually been effected. Property Risk and Insurance23. Until the price has been paid to the Company in full the Goods shall remain the property of the Company. Until title to the Goods passes: 23.1 The Customer will hold the goods as fiduciary agent and bailee for the Company; 23.2 The Goods shall be kept separate and distinct from all other property of the Customer and of Third Parties and in good and substantial repair and condition, and shall be stored in such a way as to be clearly identifiable as belonging to the Company: 23.3 The Customer is licensed by the Company to use the goods but so that the Company shall be entitled at any time after payment shall have become due to enter upon any premises of the Customer for the purpose of removing such goods. 24. Notwithstanding the aforegoing the Goods shall be entirely at the risk of the Customer in all respects from the time of leaving the premises of the Company whether collected by the Customer or not. 25. The Customer shall adequately insure the Goods with reputable insurers against all insurable risks from not later than the time of their leaving the premises of the Company and at the same time shall also insure them for the benefit of the Company and the Customer and all other persons in any way connected with the Goods against all known and insurable risks to persons and property which might in any way arise out of the Goods or their use and such insurance shall be for the sum of one hundred thousand pounds at least on terms whereby the insurers shall be precluded from any rights of subrogation or other rights whereby they would be capable of claiming against the Company or any of its employees or other persons in any way connected with it Copyright26. The Customer shall not be entitled to any rights of copyright or design or any similar rights in respect of any of the Goods and the Company shall be free to prepare and produce similar goods and sell them to other parties without any restriction whatsoever. 27. The Customer warrants that any specifications or plans which it produces to the Company are not in breach of any rights of copyright or design or other similar rights in favour of any other party and shall indemnify the Company against all liability whatsoever including expenses and legal costs reasonably incurred by the Company in respect of any claim which may be made against the Company for alleged breach of any such right. Force Majeure28. The Company shall be under no liability for any failure to perform all or any part of its obligations under the Contract if such failure shall be due to Act of God, strikes, lock outs, labour disturbances, statute, or of any regulation of any Government public or local or other Authority, delays or defaults of suppliers or sub-contractors, or (without prejudice to the generality of the aforegoing) any other causes beyond the reasonable control of the Company and the Condition shall apply notwithstanding that it may conflict with any Special Condition. Default of Customer29. The rights of the Company as set out in these conditions shall apply in addition and without prejudice to all rights that the Company may have by common law statute or otherwise in respect of any default by the Customer. 30. If the Customer fails to take delivery of any part of the Goods at the time or place required under the Contract the Company shall have the right (i) to charge the Customer with reasonable storage charges until such time as delivery is taken and/or (ii) at any time thereafter to give written notice to the Customer requiring the Customer to take delivery of the Goods in conformity with the Contract within a period of twenty eight days from the date of sending such notice and in the event of the Customer failing to take delivery within such period the Company may, by sending further written notice to the Customer treat the contract as being repudiated by the Customer and recover from the Customer all losses damages and costs occasioned to the Company by virtue of such repudiation. 31. If the Customer fails to pay any monies due under the Contract within sixty days of the due date the Company shall have the right (i) to treat the Contract as having been repudiated by the Customer on the same terms as set out in the aforegoing paragraph and/or (ii) to enter any premises of the Customer and recover any part of the Goods which have been delivered to the Customer. 32. The Company shall also have the right to treat the Contract as repudiated by the Customer forthwith and without notice should the Customer become bankrupt or insolvent or make any arrangement or compound with its creditors or should any receiver be appointed in respect of its undertaking or any of its assets or should a judgement be obtained against it and remain unpaid for a period in excess or twenty-eight days. Maintenance and Warranty33. With effect from the date of delivery, the Company is willing to arrange for provision of maintenance and support services for the Goods to include obligations for the repair of defects in the Goods for which the Company would be liable but for these terms and conditions. The customer is recommended to arrange accordingly and details of the terms and charges for such services have been provided to the Customer or are available on request. 34. The Company and the Customer have freely and openly negotiated the Contract in the knowledge that the liability of the Company is to be limited in accordance with these terms and conditions and the price has been calculated accordingly. The Customer acknowledges that a higher price would be payable but for such limitation. 35. Save as expressly stated in these terms and conditions the Company shall have no liability whatsoever in respect of any representation warranty undertaking or condition not expressly incorporated herein and any such as might be implied by statute or otherwise is hereby expressly excluded. 36. The Company shall not be liable for any loss of use of the Goods or any consequential loss arising out of any defect in the Goods or otherwise. 37. The Customer shall indemnify the Company against all liability whatsoever in respect of any claim which may be made against the Company by any third party for damage to person or property alleged to arise out of or in respect of the Goods or their use. 38. The only obligation of the Company in respect of the Goods will be to repair or replace them free of charge to the Customer if they are found to be defective within a period of thirty days from the date of delivery. 39. Under no circumstances shall the Company have any liability under the aforegoing obligation or otherwise for normal wear and tear or if other than by the Company any part of the Goods is modified or repaired, improperly stored or used, damaged by accident or neglect or maintained otherwise than, or not maintained, in accordance with the maintenance requirements specified by the Company to the Customer. All responsibilities of the Company arising from the supply of equipment or software shall be null and void in the event that (a) equipment supplied other than by the Company is connected to the equipment without prior written approval of the Company or (b) software is modified other than by the Company or without prior written approval of the Company or (c) the equipment is not maintained and serviced by the Company or the Company's approved sub-contractor. Any guarantees given under this agreement shall be cancelled in the event of defects not being reported to the Company in writing within seven days of discovery. 40. The company represents that to the best of its knowledge and belief, the information, contained in its published Specifications and Manuals is correct but any warranty, implied or otherwise, that the goods are suitable for the purposes of the Customer or may be integrated with other equipment or software is hereby expressly excluded. 41. These terms and conditions and the Special Conditions (if any) constitute the entire agreement between the Company and the Customer and may not be modified waived amended or supplemented except by written agreement between them signed on behalf of the Company as mentioned above. Special Software42.1 The Company shall as soon as reasonably practicable submit a specification of Special Software to the Customer. Such specification shall be written to the requirements of the Customer as notified to the Company. The Customer shall check that such specification is in accordance with its requirements and subject to any necessary amendments shall as soon as possible thereafter approve such specification in writing. The Customer shall not be entitled to withhold such approval unreasonably nor to vary the requirements which it notified to the Company before the specification was prepared. 42.2 As soon as the specification for Special Software has been approved as aforesaid the Customer shall pay the Company a non returnable deposit of 25% of such part of the price as relates to Special Software. 42.3 Following the date of delivery of Special Software to the Customer it shall be tested using samples and data (which shall be supplied by the Customer as being fully representative of the data to be encountered in operational use) and if such test is successful and the Special Software conforms with the specification mentioned above it shall be deemed to have been accepted by the customer. 42.4 On acceptance of Special Software as mentioned above the balance of the part of the price relative to Special Software shall immediately become due and payable in full. 42.5 Save as far as varied by or inconsistent with the aforegoing paragraphs relating to Special Software all other of these terms and conditions shall also apply to Special Software. Installation43.1 Where the Contract includes installation by the Company it shall be responsible for delivery of the Goods to be installed and shall notify the Customer when the Goods are ready for delivery and shall give at least seven days notice of the date on which it intends to effect delivery. 43.2 The Customer shall prepare and make available the installation site for each item of the Goods in accordance with the specifications previously furnished by the Company including the removal of doors and/or widening of entrances or any structural or other similar work of any kind and including the provision and use of mechanical handling devices if the Goods cannot reasonably be handled by normal hand trolleys used by the Company. The Customer shall in all such respects and otherwise ensure that delivery is capable of being made on the intended delivery date as notified by the Company although the Company gives no warranty that delivery will actually be made on such date. 43.3 The Company reserves the right to install the Goods in stages. 43.4 The Customer shall permit the Company to have access to the installation site at all reasonable times for the purposes of checking the suitability and ultimately for the purposes of delivering and installing the Goods. 43.5 Following delivery the Company shall carry out the installation but gives no warranty as to the time that will take or any inconvenience that may thereby be caused to the Customer. 43.6 After installation the Company will conduct tests to ensure that the Goods are in full working order and when such tests are satisfactory the Customer will be deemed to have accepted the Goods and their installation and will confirm acceptance in writing if so requested by the Company. 43.7 The balance of the price shall be payable by the Customer within seven days of such acceptance. 43.8 Unless otherwise agreed in the Special Conditions (if any) the obligation of the Company to install shall not imply any obligation on the part of the Company to train operators in the use of the Goods. 43.9 Save so far as varied by or inconsistent with the aforegoing paragraphs relating to installation all other of these terms and conditions shall also apply to installation. Assignment44. The benefits and obligations of the Contract shall not be assigned or sublet by the Customer without prior written consent of the Company. The benefits and obligations of the Contract may however be assigned or sublet by the Company providing that it shall remain primarily responsible to the Customer for its obligations hereunder. Law45. The Contract shall be governed by and interpreted in all respects in accordance with the Laws of England and any dispute or difference whatsoever in connection with or arising out of the Contract shall be referred to the Courts of that Country. |
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1. DEFINITIONS
'Company' means Systems AXIS Limited (trading as Axis First).
'Customer' means the customer of the Company under the Contract.
The 'Contract' is the UserCare Contract between the Company and the Customer to which these terms and conditions relate.
The 'Supported Software' is any or all of the software packages listed at https://axistechnology.co.uk/media/1526/af_it_ucswlist_aw.pdf
The ‘Maintained Equipment' is any or all of the hardware items listed in the contract.
The 'Computer System' is the Customer's computer equipment, including, but not limited to, terminals, printers, workstations and connecting cables, on which the Supported Software is operated.
'Standard Charges' means the charges normally made by the Company from time to time as certified in writing by the Company.
2. TERM
(a) The Term shall commence on the date of this Contract.
(b) The Term shall be an initial period of three months from the date of commencement but continuing thereafter until determined by not less than one month’s prior written notice given by either the Company or the Customer.
3. SERVICES
(a) The Company will use its reasonable endeavours to provide solutions to queries or problems reported in the operation of the Supported Software including the provision of software updates where appropriate as determined by the Company.
(b) The Company will use its reasonable endeavours to respond to emergency maintenance calls to remedy malfunction of the Maintained Equipment.
(c) The Company will treat as strictly confidential any data or other information provided by the Customer so that the Company may carry out its obligations here under.
(d) Save as mentioned below the Company will not be liable to provide any services save between the hours of 8 a.m. and 6 p.m. from Monday to Friday (inclusive) in each week excluding statutory holidays.
(e) If at any time the Company, at the request of the Customer provides such services outside the said hours the Customer shall pay the Company's Standard Charges for such services.
4. PAYMENT
(a) Payments due under this contract shall be payable monthly in advance or by direct debit. If at any time any payment or part of it due under the contract or any other contract with the Company (including any increase as mentioned below) is overdue for more than 7 days the Company shall be entitled to suspend all services hereunder until payment has been made in full.
(b) Payments due under this contract shall be subject to increase or decrease by the Company from time to time as may be reasonably necessary to reflect changes in costs, taxes, duties and impositions of any kind whatsoever payable by the Company. The Company shall give the Customer thirty days prior written notice of any such increase or decrease in the payments due.
(c) The Customer shall also pay V.A.T. (where applicable) or any other similar tax levied in addition to or in substitution for V.A.T. in respect of any payment under this Contract.
5. CUSTOMERS OBLIGATIONS
(a) The Customer shall not maintain, service, repair, adjust or tamper with the Maintained Equipment in any way whatsoever.
(b) The Customer shall not use any software package or tool other than the Supported Software to maintain, alter, adjust or tamper with data or systems primarily maintained by the Supported Software.
(c) The Customer shall make all payments due here under on the due dates.
(d) The Customer shall be obliged to permit the Company to have reasonable physical and remote access to the Maintained Equipment and Supported Software at all times so that the Company may carry out its obligations hereunder.
(e) If at any time the Customer shall be in breach of any of its obligations under this Contract then in addition to all other rights it may have by law, the Company may treat the Customer as having repudiated the same and that upon notice in writing given by the Company to the Customer to that effect this Contract shall be regarded as being at an end but without prejudice to the rights of the Company to claim damages from the Customer in respect of such repudiation and any breach arising prior thereto.
(f) The right of the Company to treat the Contract as repudiated by the Customer shall also apply forthwith and without notice should the Customer become bankrupt or insolvent or make any arrangement or compound with its creditors or should any receiver be appointed in respect of its undertakings or any of its assets or should a judgement be obtained against it and remain unpaid for a period in excess of twenty-eight days.
(g) The Customer shall ensure that the environment and electrical supply conditions suitable for the Maintained Equipment and on which the Supported Software is operated is maintained in accordance with the recommendations of the Company and will keep the equipment clean and in good condition.
(h) The Customer shall keep at least three copies of all software and data on a grandfather father and son basis to minimise the risk of loss from any cause whatsoever.
(i) The Customer shall not move the Maintained Equipment Hardware nor make any addition, modification or adjustment to it without the prior written consent of the Company.
(j) The Customer shall not disclose to any third party, passwords or login credentials relating to any of the Maintained Equipment or Supported Software without the prior written consent of the Company.
6. EXCLUSIONS
(a) The following are specifically excluded from the obligations of the Company under this contract:-
(i) Defects in or an inadequate electrical supply.
(ii) Any hardware, software programs or other items not listed.
(iii) Provision of replacement parts or equipment.
(iv) Repair or recovery of hardware or of software programs or data resulting from accident, transportation, neglect or misuse, failure of electrical power, surge of electrical power, intervention by a third party or any use of the hardware or software which is not ordinary use.
(v) Supplying additional programs, chargeable updates or upgrades, supplies or accessories.
(vi) Making program changes or performing services connected with the entering of data or the installation or removal of programs or software updates.
(vii) Any work required as the result of any breach by the Customer of paragraph 5(h) above.
(viiii) Training of the use of the Maintained Equipment or Supported Software.
(ix) Advice or assistance occasioned by reconfiguration by the customer or by a third party.
(b) If at the request of the Customer the Company carries out or provides any work or item covered by the provisions of subparagraph (a) above, it shall be entitled to make an additional charge to the Customer in accordance with its Standard Charges.
7. LIABILITIES
(a) The Company shall be under no liability for any delay in or failure to perform all or any part if its obligations hereunder if such delay or failure shall be due to Act of God, strikes, lockouts, labour disturbances, statute, order or any regulation of any Government, public, local or other Authority, delays or defaults of suppliers and sub contractors or, without prejudice to the generality of the aforegoing, any other causes beyond the reasonable control of the Company.
(b) Under no circumstances shall the Company be liable for any loss of business or profit or for any consequential loss or damage arising either directly or indirectly as a result of any advice or recommendations made by the Company in pursuance of its obligations hereunder save that the Company will accept liability for direct physical damage to property on the premises where the Maintained Equipment or Supported Software is installed and for injury to persons where such damage or injury is caused by negligence of the Company or its employees.
8. CONTRACT
(a) This Contract embodies the entire agreement between the parties and may be waived amended or supplemented only in writing and executed jointly by the Company and the Customer.
(b) The headings appearing in these conditions are for guidance only and they shall not in any way be deemed to affect or prejudice the interpretation or effect of these conditions.
(c) It is intended that these conditions shall be reasonable as between the Company and the Customer having regard to the nature of the contract but if at any time any of them is either unenforceable or void in law it shall not adversely affect or prejudice the remainder of them or the Contract and it shall be deemed to be excluded from these terms and conditions and (where possible) to be replaced by such other enforceable valid term or condition as shall be as near as may be to the original in both form and effect.
9. ASSIGNMENT AND SUBCONTRACTING
The benefit and obligations of this Contract shall not be as signed or sublet by the Customer without the prior written consent of the Company. The benefit and obligations of this Contract may however be assigned or sublet by the Company providing that it shall remain primarily responsible to the Customer for its obligations here under.
10. LAW
This Contract shall be governed and interpreted in all respects in accordance with the Laws of England and any dispute or difference whatsoever in connection with or arising out of this Contract shall be referred to the Courts of that Country.
This Agreement is made up of four different sections:
• ‘Services’ that covers the Services We provide You with;
• ‘Equipment’ that covers any Equipment We provide You with;
• ‘General’ that relates to both the Services and the Equipment; and
• the Plan Price Guide and Non Standard/Standard Price Guide that together set out the Charges.
1. Definitions
When We use these words in any of the sections they have the following meanings:
‘Account’ together Your Monthly Account and any Pay as You Go Account that You may have with Us;
‘Additional Commitment Service’ an Additional Service for which You agree to pay Us a monthly Charge for a minimum period of time;
‘Additional Commitment Service Cancellation Charge’ the Charge which you may have to pay when You terminate an Additional Commitment Service before the end of its minimum term and which is calculated as set out at point 8.1.2 and on Our website;
‘Additional Service’ an optional/extra Service not part of Your Price Plan, including but not limited to, calls, texts and data used outside of any Allowance, premium rate services, additional products and services added to Your Price Plan (eg Add-ons), Content, directory enquiry services, Rest of World Roaming and international services and/or third party services, and the charges for a Service once any Allowance is used up;
“Add-on” an additional service which is either provided with no minimum term, or has a minimum term or notice period of 30 days or less (including add-ons with a 30 day or less notice period that renew automatically);
‘Age Restricted Services’ any Services which You need to be over a certain age to use;
‘Agreement’ this agreement, made up of (1) the Services section; (2) the Equipment section; (3) the General section; and (4) the Plan Price Guide and Non Standard/Standard Price Guide booklets of Charges referred to throughout;
‘Allowance’ the amount and type of Services comprised of Units and which Services may be provided as part of Your Price Plan Service, any Additional Service bundle or Additional Commitment Service;
‘Blacklist’ a list held in common by the UK mobile networks on which details of Equipment are placed with the effect that such Equipment can no longer be used on any UK mobile network, except for making emergency calls;
‘Cancellation Charge’ the Charge You may have to pay when You terminate this Agreement before the end of the Minimum Term and which is calculated as set out at point 8.1.2 and on Our website;
‘Charge’ the Price Plan Charge, a charge for an Additional Service or an Additional Commitment Service, a charge for any Services consumed outside Your Allowance and/or any other additional charge including by way of example the Cancellation Charge and the Additional Commitment Service Cancellation Charge;
‘Content’ apps and/or other digital services We offer whether textual, visual, audio or otherwise, appearing on or available through the internet and/or Services;
‘Disable’ to take steps remotely so that the Equipment can no longer be used (1) on any mobile network (except for making emergency calls); (2) to connect to WiFi; and (3) to access any digital content of any kind on the Equipment, for example apps, photos, contacts;
‘Disconnect’ or ‘Disconnection’ Us or the Network Operator stopping Your access to the Services;
‘End user’ the person using the Services or operating the Equipment (whether or not authorised by You).
‘Equipment’ any phone, tablet, dongle or other internet enabled device compatible with Our Network that You use to access the Services at any time;
‘EU Roaming’: Your SIM Card connecting to a mobile network in an EU Member State;
‘Finance Agreement’ credit provided under a credit agreement regulated under the Consumer Credit Act 1974, as amended;
‘GSM Gateway’ a device which uses one or more SIM Cards and allows the Services to route or re-route to or from a fixed line telephone through a wireless link onto a mobile network;
“Linked Agreement” means another agreement with us that is linked to this agreement (i.e. a “bundle”) in a way defined as a bundle in Ofcom’s General Conditions of Entitlement effective from 17th June 2022;
‘Minimum Term’ the minimum amount of time for which You have promised to pay Us the Monthly Charge;
‘Monthly Account’ the account for which You are billed each month;
‘Monthly Charge’ the amount that You pay each month in advance for Your Price Plan Service;
‘Network’ the communications infrastructure which is used to provide the Services and any other type of communications system;
‘Network Operator’ the operator of the mobile network You are using (including, but not limited to EE, 02, Three or Vodafone).
‘Non Standard/Standard Price Guide’ is the booklet of Charges not part of Your Price Plan including, but not limited to, Charges for Additional Services, Additional Commitment Services and relevant terms and conditions which can be found on Our website;
‘Ofcom’ The Office of Communications that regulates the telecommunications industry;
‘PAC’ a Porting Authorisation Code that enables You to migrate Your telephone number to an alternative mobile network provider;
‘Pay As You Go Account’ the account in which We record Your credits and Charges for Services paid for in advance (for customers whose Price Plan allows) apart from the Monthly Charge;
‘Payment Terms’ the terms by which We manage Your Account and the ways You pay the Charges including any credit limit applied to Your Account;
‘Plan Price Guide’ the booklet of Charges which are part of Your Price Plan which can be found on Our website;
‘Price Plan’ the bundle of Services including any Allowance provided to You by Us each month in exchange for Your payment of the Price Plan Charge as detailed in Your Price Guide;
‘Price Plan Charge’ the charge for the Price Plan Service; ‘Price Plan Service’ the inclusive Services supplied with Your Price Plan, the charges, types of calls You can make, messages You can send, data You can use and details of any other Services and other terms and conditions for which are set out in the Plan Price Guide for that Price Plan;
‘Renewing’ or ‘Renewal’ entering into a new Minimum Term in return for a benefit other than the supply of new Equipment at or after the expiry of Your existing Minimum Term (or at any other time with Our express consent);
‘Rest of World Roaming’ Your SIM Card connecting to a mobile network other than in the UK or in an EU Member State;
‘Roaming’ Your SIM Card connecting to a non-UK network, including both EU Roaming and Rest of World Roaming;
‘Service’ a service provided to You by Us including the Price Plan Service, types of calls You can make, messages You can send and data You can use outside Your Price Plan, and any Additional Service and Additional Commitment Service;
‘SIM Card’ the card or cards, whether physical or embedded in a device (and then known as an eSIM Card) provided under this Agreement and used with Equipment to get Services;
‘STAC’ a Non-porting Authorisation Code that enables You to migrate to an alternative mobile network provider without migrating Your telephone number;
‘Suspend’ or ‘Suspension’ Us or the Network Operator temporarily stopping Your access to the Services;
‘UK’ the United Kingdom of Great Britain and Northern Ireland;
‘Unit’ a voice Unit, text Unit or data Unit. On use, each voice Unit may be automatically converted to one minute of a phone call, each text Unit may be automatically converted to one text sent, and each data Unit may be automatically converted to one Kilobyte;
‘Upgrading’ or ‘Upgrade’ entering into a new Minimum Term in return for the supply of new Equipment (whether free of charge or on payment by You) at or after the expiry of Your existing Minimum Term (or at any other time with Our express consent);
‘VAT’ value added tax at the prevailing rate;
‘Virus’ any manipulating program which modifies other programs and/or replicates itself;
‘We’, ‘Us’ and ‘Our’ Systems Axis Limited (company number 02370905) whose registered address is Axis House, 53-55 St. Mary Street, Bridgwater, TA6 3EQ. This registered address may change from time to time. Details of our registered address can be found on our website;
‘Wi-Fi’ the local area wireless technology, whether provided by the Network Operator or otherwise, that allows compatible Equipment to connect to a local network which may then enable You to gain access to the internet;
‘Written Notice’ sending You either: (1) an electronic message to Your SIM Card and/or Equipment which may contain a cross reference to Our website for further information; or (2) a letter to Your postal address; or (3) an email to the email address that You have registered with Us. Each will tell You that a change is going to happen and what that change is. Our website, letter or email will contain an explanation of why the change is happening and provide You with any relevant before and after information. For changes to Additional Services and Additional Commitment Services that are Content accessed through Our apps or other internet-based platforms, unless We send You anything, We’ll state clearly on the app or internet based platform what change will be made to Content available there;
‘You’ and ‘Your’ the customer who is a party to this Agreement.
A – Services
This section applies to the Services We provide You with.
2. Minimum Term
2.1 This Agreement starts when We accept Your request for Services. If We decide You need to pass a credit check as set out in point 5.13, this Agreement won’t start until You pass the credit check. We may use the information You provide Us to help Us make a credit decision before this Agreement starts. We will open an Account in Your name and apply Charges to it.
2.2 If We reject Your request but You incur Charges, We can recover those Charges from You.
2.3 We will connect You to the Services as soon as We can.
2.4 At the end of the Minimum Term this Agreement will continue until terminated as described either under point 6 or point 8 below.
2.5 If You are Renewing or Upgrading the following terms apply to You:
2.5.1 unless We agree otherwise, a new Minimum Term will apply. Once that Minimum Term is over this Agreement will continue until terminated as described either under point 6 or point 8 below;
2.5.2 Your new Minimum Term will start from the date that We process Your Upgrade or Renewal.
2.6 We don’t have to provide You with a Renewal or Upgrade.
2.7 We don’t have to allow You to change Price Plan. We may allow You to change Price Plan after the Minimum Term. We may move You at Our discretion to an equivalent or lower Price Plan at any time. We may do this as an alternative to Our right to Suspend and/or Disconnect the Services in accordance with points 6.1 or 6.2.
2.8 If You already have an Account with Us, any additional SIM Card that You request will be added to that Account. For the avoidance of doubt, if You have more than one SIM Card, each SIM Card may provide You with Services which are subject to a separate Minimum Term and therefore separate Agreement, with Us. As a result, the Minimum Term that applies to each SIM Card may not begin and end at the same time.
2.9 For the avoidance of doubt each Price Plan Service or product You take from Us is subject to a separate Agreement with Us.
3. SIM Cards
3.1 The following terms apply to SIM Cards:
3.1.1 if a SIM Card is lost, stolen or damaged, You should call customer services for a new one or to re-activate an eSIM Card (see point 5.8). We may charge for a replacement;
3.1.2 The Network Operator owns the SIM Card and license You to use the telephone (or “phone”) number associated with it. The phone number is licensed by Ofcom. You can only use a SIM Card to use the Services;
3.1.3 We or the Network Operator can change a SIM Card’s phone number(s) if We have a good reason, for instance, a legal reason or where We are required to do so by Ofcom or any other regulatory body. We will endeavour to give You 30 days’ Written Notice if We have to do this. The new phone number will apply to Your SIM Card once any notice period that We are able to give You has run out;
3.1.4 We reserve the right to recall any SIM Card from You at any time to enhance or maintain the quality of the Services or Equipment.
4. Our Services Network and access to Services
4.1 At any time Our Network comprises lots of different types of technologies. The Services are made available provided You are in range of base stations forming part of the relevant technological Network when trying to use any particular Service. For example, You can only use 3G Services when You are in range of a 3G base station, You can only use 4G Services when You are in range of a 4G base station (which may only be available in certain geographical areas) and so on as any new Network technology (eg 5G, 6G and so on) is made available to You. You may have to connect to a particular Price Plan and/or use particular Equipment to gain access to certain Services. You should check Your coverage using the coverage checker on the Network Operator’s web site before requesting the Services. Any coverage maps are Our best estimate of Our outdoor coverage but not a guarantee of service coverage which may vary from place to place.
4.2 You may use the Services to contact the emergency services for free by calling 999 or 112 (or by sending an SMS to 999 if You are registered to contact emergency services by SMS) provided You are in range of a base station forming part of the Network. If You are not within range of one of the Network Operator’s base stations, or if that base station is not transmitting for any reason, the Equipment may try to use another mobile network to connect Your call to the emergency services. Depending on the Equipment You use, Your approximate location (using Network, global positioning satellite network information and Wi-Fi data) may be provided to the emergency services via functionality built into the Equipment. See Your Price Plan terms and conditions for any other restrictions on access to emergency services.
4.3 We will always try to make the Services available to You, using the reasonable skill and care that would be expected of a competent mobile communications provider, but sometimes they may be unavailable as a result of, or be affected by:
4.3.1 things like the weather and faults in other networks;
4.3.2 the number of people using the Network or maintenance requirements of the Network including (but not only) re-positioning and/or decommissioning of base stations;
4.3.3 Your location when using the Services. For example, coverage is affected if You are indoors and/or by the thickness of the walls; or
4.3.4 the country You use the Services in. Some overseas networks do not provide the same coverage as in the UK. You also may not be able to use some of the Services when You are Roaming.
4.4 Where there is disruption to the Network, for example issues with Network coverage, speed or other aspects of Your Service (including disruption described at point 6.1.1) You must let Us know by calling Us. We’ll investigate and take steps to resolve the disruption reported.
4.5 We would pro-rate your Monthly Charges or other recurring Charges by up to 100% during a reported period of Network disruption where:
4.5.1 the disruption reported impacts the parts of the Network and the Services You most frequently use; and
4.5.2 the disruption is considered to be severe based on Your previous usage history and Our reasonable assessment of the impact of that disruption on You, using appropriate diagnostics tools; and
4.5.3 an alternative mode of accessing the disrupted Services is unavailable to You.
4.6 We reserve the right to manage Your use of Our Network in order to protect it for the use of all of Our customers. We may therefore apply traffic management controls from time to time.
Use of Services (things You must not do with the Services)
4.7 The Services are made available provided that You also comply with the following conditions, which are a fundamental part of this Agreement between You and Us:
4.7.1 the Services are not used for anything unlawful, immoral or improper. Without limiting the foregoing, We will decide that the Services are being used improperly if You call and/or text more than 300 different numbers in a month;
4.7.2 the Services are not used to make offensive or nuisance communications in whatever form, or to make or receive reverse charge calls;
4.7.3 the Services are only used with Equipment authorised for use with the Network and all relevant laws and rules are followed;
4.7.4 the Services are not used to send, receive, upload, download or otherwise facilitate any material which is: offensive; indecent; defamatory; of a menacing nature; a nuisance; a breach of privacy; an infringement of copyright or any other intellectual property right; or otherwise unlawful;
4.7.5 the Services are not used to access or use Content in a way that infringes the rights of others;
4.7.6 the Services are not used otherwise than in accordance with Our and any other networks’ policies for acceptable use, and (if appropriate) any relevant internet standards;
4.7.7 You give Us information We reasonably ask for;
4.7.8 all reasonable instructions We give You are followed;
4.7.9 You comply with any fair use policy applicable to Your use of the Services and if You are in breach of that policy You comply with any reasonable instructions that We issue to You to enable You to remedy that breach and to continue to use the Services;
4.7.10 Without obtaining prior written consent from Us, You must not operate, whether directly or through a third party, a GSM Gateway, commonly known as a ‘SIM box’.
4.7.11 You must not operate, whether directly or through a third party, any device to route or re-route voice, data or other Services on, from or to the Network including but not limited to:
4.7.11.1 a device used to forward or divert Services with the intention of reducing Your Charges for that call; or
4.7.11.2illegal repeaters (a device to boost coverage which is unlicensed and used without Our express prior written consent);
4.7.12 You must not use the Services for any fraudulent or other unlawful purpose, whether You’re acting alone or in collusion with anyone else. You are not permitted to use the Services, whether manually or automatically, for any direct financial gain, revenue share or benefit in kind, including where Your financial gain has derived from the termination charge payable by the Network Operator for calls on its Network;
4.7.13 You must not sell, or attempt to sell, or otherwise provide commercial services using the Network to any third party without Our express prior written consent;
4.7.14 You, or anyone who uses Your SIM Card, must not damage the Network or put the Network at risk, or abuse or threaten Our staff;
4.7.15 any information You give to Us, on which We may rely in making decisions concerning the provision of Services under this Agreement, must be true at the time You give it;
4.7.16 You must give Us any deposit or extra deposit that We ask for;
4.7.17 You comply with any requirement of Ours to set up an account for billing purposes (see point 5.6.3); and
4.7.18 You must not access any Age Restricted Services unless You are older than the required age. If You are allowed to access Age Restricted Services, You must not show or send content from the Age Restricted Services to anyone younger than the specified age.
4.8 By using the Services You consent to Us copying and/or modifying images or information You have created where such copying and/or modification is carried out for the purposes of transmission. This also applies where You use Our or the Network Operator’s apps or internet-based platforms.
Services near a border/outside UK
4.9 If You access the Services on or near the border of the Network and the network of any third party, You agree that You may not be able to access the Network but may instead be connected to the network of one of Our Roaming partners.
4.9.1 Services that You Use with Our EU Roaming partners will either come out of any Allowance You have (only where Your Allowance includes that Service) or will be subject to Charges (where Your Allowance does not include that Service or where You have no relevant Allowance remaining).
4.9.2 Services that You use with Our Rest of World Roaming partners will be subject to Charges (unless the relevant Plan Price Guide states otherwise).
4.10 Allowances which include (or Charges which are for) calling a UK mobile number will exclude calls to networks in the Isle of Man and the Channel Islands. Calls to customers of certain UK mobile networks may also be excluded. Please refer to Our Non Standard/Standard Price Guide for details.
4.11 We’ll use Our reasonable efforts to make commercial arrangements to enable You to access other networks so that You can use the Services whilst Roaming. We can’t guarantee the quality and coverage that any other network may provide. Additional Charges for Roaming are set out in Our Non Standard/Standard Price Guide. You may have to ask Us to set up Your Account for Roaming.
Other
4.12 We will allocate You a phone number to use with the Equipment on the Network. The phone number is licensed to Us by Ofcom. You may also use a phone number transferred to Us from another mobile network operator. You may be able to take the phone number with You when You leave Our Network. If so, We will transfer the phone number to or from Our Network.
5. What and how You pay - Information about Charges
5.1 Our Charges are set out in Our booklets of charges, called Plan Price Guide and Non Standard/Standard Price Guide. We update these booklets from time to time. You can obtain up to date copies by referring to Our website or calling customer services.
5.2 VAT is charged as set out in Our Plan Price Guide and Non Standard/Standard Price Guide.
5.3 You may pay Charges in two different ways. You will pay for certain Services as a Monthly Account and You may pay for other Services as a Pay As You Go Account.
5.4 We may set and change credit limits for Charges based on credit checks and information We hold about You. We can Suspend Your access to the Services if this limit is exceeded. Charges are not capped by any limit We set under this point 5.4, as some Charges, for example international and Roaming call charges, may not be recorded against Your Account immediately, and the Charges incurred could therefore exceed Your credit limit before Your Account is Suspended under point 6.1.2.
5.5 We may, in certain circumstances, allow You to set Your own limits for selected Charges on Your Account. We can and may Suspend Your access to the Services if a limit is exceeded. Where You are allowed to set such a limit, and You deliberately exceed it in Our reasonable opinion, We will be able to charge You for Services used beyond Your limit.
5.6 Monthly Account
5.6.1 We may make the bill for Your Monthly Account available to You every month by a method of Our choosing, currently post or electronic means. You must pay Your bill by the date set out on it, whether or not Your Allowance is consumed by You or by another person, with or without Your permission. Please see Our website for details of payment methods We accept. If You haven’t used all of the Allowance by the time We bill You, it will expire and Your Allowance will then start again on each monthly bill date. On Your bill, We may include the “per Unit” cost for Your Allowance to help You understand the value You’re getting from Your Price Plan. Additional Services and Additional Commitment Services may be charged in arrears or in advance, as set out in Our Non Standard/Standard Price Guide. Other Charges are for the month just passed and any earlier time if not previously charged for.
5.6.2 If You receive Your bill by post, We will make the bill available to You by sending the bill to the postal address that You registered with Us when You joined or, if You have notified Us of a change in postal address, to that new postal address.
5.6.3 If You receive Your bill electronically, We will make the bill available to You through an online account. It’s Your responsibility to set up Your online account. Your online account will tell You the date that Your bill is to be made available to You each month. In addition to this, You can ask Us to send You a monthly notification that Your bill is ready to be viewed.
5.6.4 If You have not paid all or part of Your bill by the date set out on it You may have to pay a late payment Charge. We won’t ask You to pay this Charge if You make a part payment as described in point 5.7.2 below. You will also have to pay the reasonable costs (including legal and/or debt collection agency costs) of collecting any late payment from You.
5.6.5 You may have to pay additional Charges, the amount of which is set out in Our Non Standard/Standard Price Guide, for example: the Charge to reconnect You to the Services (see point 6.5); or the Charge for a paper or paper itemised bill; or the Charge if You try to pay Your bill and that payment fails (see point 5.6.4).
5.6.6 Any discount on a Price Plan Charge, an Additional Charge or an Additional Commitment Service Charge We give You will end on the earlier of one of the following events:
5.6.6.1 when the period for which the discount was advertised comes to an end (e.g. a discount for the first 6 months of Your Price Plan only); or
5.6.6.2 when Your Minimum Term comes to an end; or
5.6.6.3 when We provide You with a Renewal or Upgrade; or
5.6.6.4 where You have a Price Plan Charge discount because You have another agreement with Us, You terminate either this Agreement or the agreement for that other service.
5.7 Pay As You Go Account
5.7.1 We may allow You to pay for some Services in advance on a pay as you go basis. When You top up with pay as you go credit, We will apply credits to Your Pay As You Go Account, and deduct Charges from that credit for those Services You pay for using this Account. We will deduct Charges from that credit at the rates set out in Your Price Plan Guide or the Non Standard/Standard Price Guide but in accordance with these Pay As You Go Account conditions.
5.7.2 We reserve the right to use credit balances from Your Pay As You Go Account to offset any amount You may owe Us for Services You pay in arrears. Pay As You Go Account balances will only be applied against Your Monthly Account where Your Monthly Account is put into Suspension for non-payment, or in accordance with point 5.11.
5.7.3 As Charges are incurred they will be deducted from amounts credited against Your Pay As You Go Account. Charges are deducted at the time that You use a Service for which there is a Charge. If You have selected Additional Services or Additional Commitment Services with a periodic service Charge, the Charge will be deducted at the time(s) and for the period(s) set out in Our Non Standard/Standard Price Guide. You are responsible for all Charges correctly deducted in accordance with this point 5.7.3.
5.7.4 If, at the time We attempt to deduct a periodic Charge from Your Pay As You Go Account, You do not have enough credit on Your Pay As You Go Account to pay that Charge, that Charge will fail and You will not be able to use the Service for which We were attempting to Charge You.
5.7.5 When all credits on Your Pay As You Go Account have been used You will not be able to make further use of those Services which You have chosen to pay for as you go until a further sufficient credit is made to Your Pay As You Go Account. In these circumstances You will still be able to use those Services for which unused Allowances apply. You will also be able to make calls to the emergency services and to Us whilst Your SIM Card is connected to the Network. You may still receive calls and text messages (except for any reverse billed Services) whilst Your SIM Card is connected to the Network.
5.7.6 You must also have sufficient credit on Your Pay As You Go Account to enable You to make a call of one minute’s duration, to send (or receive) the Service in question or to send or receive a minimum of 24 kilobytes of data. Minimum balances reserved for the first Service activated will not be available for any subsequently activated yet concurrently used Service. Services used simultaneously will be charged for simultaneously. We will not pay interest on top up credit held on Your Pay As You Go Account.
5.7.7 We will not refund credit from Your Pay As You Go Account in any circumstances.
Charges Generally
5.8 You are responsible for all Charges applied to Your Account, except Charges applied after You called customer services to advise Us that:
5.8.1 Your SIM Card has been lost or stolen (see point 3.1.1); or
5.8.2 the Equipment and/or Service has been used by an unauthorised third party (see point 9.5); or
5.8.3 the Equipment has been infiltrated by a Virus (see point 13.7).
5.9 We can change Payment Terms for any good reason, for instance, if You do not pay a bill by the date set out on it.
5.10 You shall be required to pay a deposit (or an extra deposit) as security for the Charges if We have a good reason to require it, for example, if We raise Your credit limit. We can keep the deposit until the Agreement ends. We will return it when You pay Us everything You owe. We will not pay interest on deposits. We can use Your deposit to pay what You owe except where You have followed the process for disputed Charges outlined at point 6.6 below. If You don’t pay the undisputed amount by the date of Your bill or tell Us not to use any deposit to pay the disputed amount, then We will use any deposit and/or any pay as You go credit balance to pay the disputed sum.
5.11 Charges for Services You have used may be applied against Your applicable Allowance(s) on the date that We process them, which may be later than the date that You used those Services, and may be applied against Your next periodic Allowance.
5.12 Charges for calls and messages to certain numbers outside of those permitted in Your Allowance, such as premium rate numbers or nongeographic numbers, are set out in the Non Standard/Standard Price Guide.
5.13 We may use credit reference agencies to help Us verify Your identity, make credit decisions or for fraud protection. You agree that We may register information about You and the conduct of Your Account with any credit reference agency or CIFAS (the UK’s fraud prevention service). For the purpose of fraud prevention and credit management, information about You and the conduct of Your Account may be disclosed to financial institutions and other companies. Such information may also be passed to debt collection agencies for debt collection purposes.
5.14 You may be able to use the Service to buy goods and/or services from third parties. You may be able to pay for that through Your Monthly Account or Your Pay As You Go Account, subject to any limits imposed on the amount You can add to Your Account in that way. It is Your decision whether or not to enter into a legal relationship with that third party, who You may not have heard of or bought from before. If You do buy from a third party, unless We say otherwise, You will have a direct relationship with that third party even if You pay for the goods and/or services with Your Account. As We will not be a party to that agreement between You and that third party, We won’t be in any way responsible for any loss or damage You may suffer because of Your contract with that third party.
5.15 If the SIM Card and/or the Equipment is lost, stolen or damaged You will be responsible for any Charges incurred until You have informed Us of the loss.
5.16 By entering into this Agreement You authorise the End Users on Your Account to incur Charges without prior permission from You. Please see Our Plan Price Guide and Non Standard/Standard Price Guide for a list of Charges and Services which end users can add to Your Account without prior permission from You.
6. When We may Suspend, Disconnect or terminate the Services
6.1 We may Suspend the Services without warning if:
6.1.1 the Network breaks down or needs maintenance. We will try to make sure this does not happen often; or
6.1.2 Your credit limit or other limit is exceeded (see points 5.4 and 5.5);
or
6.1.3 We reasonably believe there is fraudulent use of a payment card in relation to Your Account.
6.2 We may Suspend and/or Disconnect the Services and/or terminate the Agreement without warning if:
6.2.1 You or anyone who uses Your SIM Card and/or the Equipment does not keep to the conditions of this Agreement or any other Agreement with Us or the Network Operator;
6.2.2 You don’t pay any bill by the date set out on it;
6.2.3 You fail to comply with any of the points in point 4.7;
6.2.4 any step is taken to make any kind of arrangement that would compromise Your liability to pay Your debts and/or You become unable to pay Your debts (within the meaning of section 123 of the Insolvency Act 1986) or any step is taken to appoint an administrator, liquidator (for a reason other than solvent reorganisation), or receiver over You or any of Your assets. We can also terminate this Agreement if something similar (in any country) happens or if We think any of these things may happen;
6.2.5 any licence of the Network Operator to run the Network is ended;
6.2.6 We reasonably suspect fraudulent use of the Network and/or Services based on any and all data available to Us;
6.2.7 We or the Network Operator identify a calling pattern or patterns that are disproportionate to the overall type, amount, duration and/or extent of calls which We would expect from good faith usage of Our Network or Services;
6.2.8 We or the Network Operator have Disabled the Equipment as described at point 11.2.
6.3 If We terminate this Agreement for a reason given under point 6.2, except if We terminate under 6.2.5, You must pay Us everything that You owe, including any Cancellation Charge and/or Additional Commitment Service Cancellation Charge.
6.4 You are liable for all Charges during any period of Suspension or Disconnection unless We decide otherwise.
6.5 Following a period of Suspension or Disconnection We can charge to reconnect You to the Services except where the Suspension or Disconnection was the result of something in point 6.1.1 happening. We can change Your Payment Terms as a condition of reconnection. If Your Services are Suspended or Disconnected for more than 60 days, You may also have to pass a credit check to reconnect the Services.
6.6 We will not Suspend and/or Disconnect and/or terminate for nonpayment of a bill under point 6.2.2 if You have a genuine dispute with Us and before the date by which Your bill must be paid, You have written (see point 14.6) to Us setting out the details of Your dispute, including the amount of Your claim against Us and the amount You intend to withhold as disputed. If the amount You intend to withhold is less than the total amount You owe Us then You must pay the difference by the date set out on the bill. If You don’t, then We can terminate this Agreement immediately. Your right to withhold payment will end once We revert back to You with a response, which will be reasonable and take into account all relevant laws, regulations and circumstances.
6.7 Our rights set out in here are in addition to any other legal rights We may have against You under point 11.
7. Changing Charges and Services
7.1 We can lower any Charge at any time without telling You beforehand, although We will try to tell You if We can.
7.2 We can suspend, change, increase the price of or withdraw part or all of the Additional Services on giving relevant customers with those Additional Services Written Notice a minimum of 30 days before We do so. The change will then apply to You once that notice period has run out unless:
7.2.1 it is a change to an Add-on which is not exclusively to Your benefit, and You cancel the Add-on that is changing by giving Us notice to cancel within 30 days of Us notifying You of the change; or
7.2.2 it is a change to an Additional Service excluding Add-ons¸ which significantly disadvantages You such that You have a right to cancel the Agreement under point 8.4, and You give Us notice to cancel the Agreement within 30 days of Us notifying You of the change.
7.3 We can suspend, withdraw or increase the price of Your Price Plan or Price Plan Service or change the terms and conditions (other than as set out at point 12.3). We will give You Written Notice a minimum of 30 days before We do so. The change will then apply to You once that notice period has run out unless You (i) have a right to cancel the Agreement without paying a Cancellation Charge under point 8.4 and (ii) you exercise that right and cancel within 30 days of Us notifying You of the change.
7.4 We can change Your Price Plan or Price Plan Service or other Services (excluding Additional Services). We will give You Written Notice a minimum of 30 days before We do so. The change will then apply to You once that notice period has run out unless You (i) have a right to cancel the Agreement without paying a Cancellation Charge under point 8.4 and (ii) you exercise that right and cancel within 30 days of Us notifying You of the change.
7.5 We can change an Additional Commitment Service. We will give You Written Notice a minimum of 30 days before We do so. The change will then apply to You once that notice period has run out unless You have the right to cancel it without paying an Additional Commitment
Service Cancellation Charge (see point 8.4). You may have a right to terminate this Agreement without paying a Cancellation Charge if We do this, see point 8.5.
7.6 All Your Charges (including the Price Plan Charge) include an annual price increase (rounded up to the nearest whole pence), which will be calculated by multiplying the Charges individually by a percentage comprised of (i) the Consumer Price Index (CPI) rate figure published by the Office for National Statistics in January of that year (ignoring any negative figure), plus (ii) 3.9%. The increase will take effect on bills dated on or after 31st March of each year and use the CPI figure published in January of that year. If the CPI figure is negative in the relevant year. We will only increase the Charges by 3.9%. The change to Your Charges as a result of this annual increase will not give You the right to terminate this Agreement without paying a Cancellation Charge.
7.7 Where one or more of Our wholesale Roaming partners increases the cost of Services used when Roaming We will increase Your Roaming Charges by the same amount. We will provide Written Notice to active users of the Roaming Services that are changing. Any change to Roaming Charges under this point 7.7 will not give You the right to terminate this Agreement without paying a Cancellation Charge, unless it is of material detriment to You and You give Us notice to cancel this Agreement within 30 days of Us notifying You of the change. We will not increase Roaming Charges in this way more than once in any month.
7.8 Where one or more of Our international partners increases the cost of Services (calls and texts from the UK to other countries) We will increase Your Charges for international calls and texts by the same amount. We will provide Written Notice to active users of the particular services that are changing. Any change to Roaming Charges under this point 7.8 will not give You the right to terminate this Agreement without paying a Cancellation Charge, unless it is of material detriment to You and You give Us notice to cancel this Agreement within 30 days of Us notifying You of the change. We will not increase Roaming Charges in this way more than once in any month.
7.9 We can increase Your Price Plan Charge, or any other Charges, if We are required to do so as a result of any new legislation, statutory instrument, government regulation or any new taxation which We need to pass on to You as a matter of law. For the avoidance of doubt, any such increase will not give You the right to terminate this Agreement without paying a Cancellation Charge.
8. Your termination rights
8.1 You can give Us notice to terminate this Agreement by contacting Us and providing Us with 30 days’ or more notice, at any time.
8.1.1 If (except as set out in point 8.4) in Our total discretion, We accept notice from You to terminate this Agreement within the Minimum Term, You will have to pay Us a Cancellation Charge and, if applicable, the Additional Commitment Service Cancellation Charge, unless You have a right under point 8.4 or 8.5 not to pay a Cancellation Charge.
8.1.2 If a Cancellation Charge and/or an Additional Commitment Service Cancellation Charge is due, it is calculated as follows:
8.1.2.1 the sum of all outstanding Monthly Charges and/or Additional Commitment Service monthly Charges for the remainder of Your Minimum Term, factoring in any recurring monthly discount to which You are entitled, calculated at a daily rate;
8.1.2.2 minus VAT at the prevailing rate;
8.1.2.3 minus a further 4%; and
8.1.2.4 with VAT at the prevailing rate added onto that final amount.
8.1.3 You can terminate this Agreement without having to pay Us a Cancellation Charge after the Minimum Term has ended. You will have to pay Your Charges for Services during the notice period.
8.2 Subject to point 8.1, Your Agreement or the Additional Commitment Service will terminate in accordance with one of the following termination procedures:
8.2.1 Termination without a PAC or STAC. If You do not request a PAC or STAC Your Agreement will terminate at the end of the 30 day notice period. You are free to change Your mind and call Us to withdraw Your notice of termination at any time during the 30 day notice period.
8.2.2 Termination with a PAC or STAC. PACs or STACs are made available upon request and last 30 days from issue. If You request a PAC or STAC on or after the date You give Us notice to terminate this Agreement, Your Agreement will terminate once it has been used. If You don’t use the PAC or STAC within its validity period, it will expire and this Agreement will continue until You terminate again using the process described in this point 8.2.
8.3 You will be responsible for all Charges up to and including the date that this Agreement terminates. If the Agreement terminates before the expiry of the 30 day notice period, You may have to pay a Charge, as described in Our Non-Standard Price Guide. If Your Price Plan Service or the Agreement is terminated, the Additional Commitment Service will automatically terminate.
8.4 A Cancellation Charge won’t apply if You are within the Minimum Term and:
8.4.1 Our entitlement to operate the Network ends at any time; or
8.4.2 Your access to Our Network is permanently disrupted and in accordance with point 4.5 Your Monthly Charges are reduced by 100% for the remainder of Your Minimum Term; or
8.4.3
8.4.4 The change that We gave You Written Notice of in point 7.4 significantly disadvantages You and You give Us notice to cancel this Agreement within 30 days of Us notifying You of the change; or
8.4.5 We have given You Written Notice of an increase in a Price Plan Charge (other than an increase as a result of Our annual price increase as calculated in point 7.6); or
8.4.6 We have given You Written Notice of a change to an Additional Service (including a change to the charge), other than an Add-on, and other than as a result of (i) our annual price increase as described in point 7.6 or (ii) our changes to roaming and international charges in points 7.7 and 7.8, in a way that significantly disadvantages You; or
8.4.7 You have a right to cancel a Linked Agreement because of a change that We have made to that agreement; and
8.4.8 You give Us notice to cancel this Agreement with 30 days of Us notifying You about the change.
8.5 An Additional Commitment Service Cancellation Charge won’t apply if the change that We give You Written Notice of in point 7.5 is not exclusively to Your benefit.
8.6 You will not have a right to cancel this Agreement without having to pay a Cancellation Charge if:
8.6.1 Any change to the Charges is as a result of Our annual price increase (as described in point 7.6) or is an increase in Roaming or international charges and You are not significantly disadvantaged (as described in points 7.7 or 7.8); or
8.6.2 Any change is made to an Add-on, the charges for an Add-on or a one-off charge (for example a replacement SIM charge); or
8.6.3 The change falls within clause 12.3 but is of a purely administrative nature and has no negative effect on You, or is directly imposed by law.
9. Internet access
9.1 If You have Equipment which enables You to access the internet, this section applies to You.
9.2 We may have to change, suspend, withdraw or (if applicable) increase the price of Content without giving You any warning. The new nature of the Content will be clear before You buy the Content following any change and if You then purchase the Content following the change, We will take that as acceptance of the new Content and its price.
9.3 We may provide links to other third party websites which may include links to the websites of Our partners. Any such content or webpage that You access (directly or indirectly) is the responsibility of the third party who makes that content or webpage available to You. We don’t check (and so We don’t necessarily recommend) what is available on any third party website. We can’t make any promise to You about whether the content on any third party website is accurate, complete or reliable. We also cannot promise that the website will work for as long as You need it or whether it will even work at all.
9.4 You (and not Us in any way) are entirely responsible for anything that You upload, e-mail, post or otherwise transmit via internet access. You agree that You will obey any acceptable use policy or fair use policy that We may have. If You fail to do so, points 4.7.9 and 5.8 will apply.
9.5 Your ability to access a secure internet environment will be dependent on the Equipment and the third party supplier of any Content. You are responsible for any Charges incurred by any unauthorised third party who uses the Equipment and/or the Service as a result of any breach of that security, whether You use any security tools at Your disposal, or not.
9.6 This point 9 will apply even after this Agreement has been terminated.
B – Equipment
10. Equipment
10.1 You may get Equipment from Us directly when You take out a Price Plan, whether for free or for an upfront cost. Unless We tell You otherwise, or You get Equipment under a Finance Agreement, We will own any Equipment provided to You by Us for the first six months of the Minimum Term.
10.2 If You take out a Price Plan via a third party who is not Us and get Equipment from that third party when You take out the Price Plan, that third party may own any Equipment provided to You by them. If this is the case, that third party may tell You that terms equivalent to this point 10 will apply between You and that third party.
10.3 During the six month period, You:
10.3.1 must not sell or otherwise permanently give the Equipment to anyone else without prior written consent from Us or the third party who provided the Equipment, which is not to be unreasonably withheld;
10.3.2 must take all reasonable care of the Equipment and keep it in reasonable condition (subject to usual wear and tear) as if You owned it. The risk of damage to the Equipment shall pass to You on its delivery so You are responsible for paying for any repair or insurance policy; and
10.3.3 cannot change or alter the Equipment, other than standard software updates and app purchases.
10.4 After six months of the Minimum Term, and provided You have not broken any condition of this Agreement according to point 11.3 below, You will automatically own the Equipment.
10.5 In very limited circumstances Equipment that We provide to You may be locked to a single Network Operator and it may not be possible to unlock such Equipment so that it can be used on the network of another mobile provider. If the Equipment can be unlocked, We may make a charge to do so. Please see Our Non Standard/Standard Price Guide.
10.6 By using the Services and the Equipment provided to You, You consent to Our collection of Equipment details and network data from the Equipment (using software embedded on the Equipment) which may include:
10.6.1 Your IMEI (information which identifies the Equipment);
10.6.2 Your IMSI (a SIM card’s unique identification);
10.6.3 the operating system You are using; and
10.6.4 Your IP (Internet Protocol) address, in order to Disable the Equipment under point 11.2.
10.7 If You give Equipment provided to You to someone else to use on Our Network (for example, an employee), You agree that You have told that person about the software and collection of data as explained in point 10.6 above and obtained their consent to this.
10.8 You will need compatible Equipment and/or a compatible Price Plan to access some Services, for example 4G Services. Unless We supplied any Equipment, You are responsible for ensuring that it is compatible with the Services, and has the necessary software updates and installations required in order to access the Services. You must follow any instructions that We give You about accessing the Services through the Equipment.
11. When We may Blacklist and Disable the Equipment
11.1 In order to protect the Network and the Services for the use of all Our customers and in accordance with point 10 above, We will identify fraudulent use of Equipment based on any and all data available to Us and will then take steps if We know or have reasonable grounds to suspect that fraud has taken place.
11.2 Where We reasonably conclude fraud has taken place We will:
11.2.1 Disable the Equipment where:
11.2.1.1 We own it pursuant to point 10.1 above; or
11.2.1.2 A third party owns it pursuant to point 10.2 above and that third party has given Us the right to Disable it; and/or
11.2.2 place the Equipment on a Blacklist.
11.3 The following situations are indicative of where We will assume fraud has taken place. However, We may use Our rights to Blacklist and/or Disable the Equipment in other situations where We reasonably believe fraud has occurred:
11.3.1 You do not pay any bill within the first six months of this Agreement;
11.3.2 We detect that the Equipment has never been used in the UK and is being used outside the UK without Our knowledge or consent and with a SIM card that has not been supplied by Us;
11.3.3 You tell Us that Equipment has been lost or stolen;
11.3.4 We suspect on reasonable grounds that information has been supplied to Us without the knowledge of the person named or that an application is unauthorised or contains false particulars, including fraudulently obtained financial details.
1.4 We will try to send You reasonable Written Notice before We take any of the steps above, but We do not have to as We may have to act quickly to prevent the damage from any potential fraud increasing.
11.5 We will restore services and remove any Blacklist or Disable once We are satisfied that there is in fact no fraudulent use of the Equipment by You or any third party. That may include You paying any sums that are owed to Us under this Agreement, including the Cancellation Charge. We may charge You the cost of enabling the Equipment except where there has been a genuine error or dispute (see point 6.6 above). We can change Your Payment Terms as a condition of this.
11.6 Point 11.3.1 will not apply if You have a genuine dispute with Us and before the date by which Your bill must be paid, You have written (see point 14.6) to Us setting out the details of Your dispute, including the amount of Your claim against Us and the amount You intend to withhold as disputed. If the amount You intend to withhold is less than the total amount You owe Us then You must pay the difference by the date set out on the bill. If You don’t, then We can terminate this Agreement immediately. Your right to withhold payment will end once We revert back to You with a response, which will be reasonable and take into account all relevant regulations and circumstances.
11.7 The rights in this point 11 are in addition to Our rights to suspend and or disconnect the Services and/or terminate the Agreement under point 6.
C – General
12. Changes to Our Agreement
12.1 We will make a copy of Our current version of these terms and conditions available on Our website. We can change this Agreement for any good reason, for instance, where it is necessary to make administrative changes to Our registered name, address or customer service contact details or if We want all customers on the same conditions. We will tell You about the change beforehand, as explained here.
12.2 We will send You Written Notice a minimum of 30 days before the terms and conditions are due to change. The new terms and conditions will automatically apply to You once that notice has run out.
12.3 We can change these terms and conditions if new laws or rules make it necessary or where We are required to do so by Ofcom or any other regulatory body. We will endeavour to give You 30 days’ Written Notice if We have to do this. The new terms and conditions will automatically apply to You once any notice period that We are able to give You has run out unless You have a right to cancel under point 8.6.3.
13. Our Liability to You
13.1 We are only liable to You as set out in this Agreement. We have no other duty or liability to You.
13.2 Nothing in this Agreement removes or limits Our liability for death or personal injury caused by something We have done or failed to do or for any fraudulent misrepresentation We may have made to You.
13.3 Except as set out in points 13.1 and 13.2, Our total liability to You for something We or anyone who works for Us does or does not do will be limited to a maximum of £1,000 for all incidents under this Agreement.
13.4 We are not liable to You in any way for any loss or damage that was not reasonably foreseeable at the time You entered this Agreement. This includes but is not limited to loss of income; business; anticipated savings (meaning costs You expected to avoid by using the Equipment or Services) or anticipated profits, loss of property or loss of use of property.
13.5 You must tell Us about any claim as soon as reasonably possible.
13.6 We will not be liable to You if We cannot carry out Our duties or provide Services because of something beyond Our control.
13.7 We will not be responsible for any harm You suffer from a Virus which infiltrates the Equipment, whether it was transmitted via the Services or otherwise. You remain responsible for all Charges applied to Your Accounts for the use of any Services activated by such a Virus.
13.8 We will not be responsible for any harm incurred as a result of unauthorised third party use of the Equipment and/or Services (see point 10.7). Subject to point 5.8 above, You remain responsible for all Charges applied to Your Accounts arising from the use of any Services by that third party.
13.9 This point 13 will apply even after this Agreement has been terminated.
14. General
14.1 You need to get Our explicit prior consent before You can transfer or try to transfer any of Your rights and responsibilities under this Agreement. We may transfer any of Ours without Your permission, provided the level of service You currently experience is not reduced as a result.
14.2 We may monitor or record any conversations between You and Our staff for authentication, security, quality and training purposes.
14.3 We may send notices to either Your postal address, Your online account, Your email address or Your SIM Card and/or the Equipment You use regardless of how Your bill is made available to You. We may also send You ‘over the air’ updates to Your Equipment which may make some minor adjustments to the functionality or display on the Equipment. You’ll need to accept these changes which may include doing anything reasonable We request. You will not be able to opt out of receiving these notices.
14.4 You must phone customer services straightaway about any change in Your postal address or email address. It’s Your responsibility to make sure that the email address that You give Us is correct, current and works at all times. If You change Your email address or it stops working for any reason, You must notify Us immediately. If You fail to inform Us of any change, We will continue to make Your bill available to You by either (depending on how You receive Your bills) sending it to the last postal address that You gave Us or making Your bill available in Your online account and sending any notification to the last email address that You gave Us. Those bills will be payable in accordance with point 5.6.
14.5 We aren’t responsible for messages that don’t get to You because the Equipment is turned off or not connected to the Network.
14.6 Unless otherwise stated in this Agreement, any notices from You to Us must be sent to Our registered address, details of which may be found on Our website. It is currently: Axis House, 53-55 St. Mary Street, Bridgwater TA6 3EQ.
14.7 Any concession or extra time that We allow You only applies to the specific circumstances in which We give it. It does not affect Our rights under this Agreement in any other way.
14.8 This Agreement shall not confer any benefit on a third party under the Contracts (Rights of Third Parties) Act 1999.
14.9 English law will apply to this Agreement and any disputes will be settled in the Courts of England and Wales, Scotland or Northern Ireland (as applicable).
14.10 If a point or condition of this Agreement is not legally effective, the remainder of this Agreement shall be effective. We can replace any point or condition that is not legally effective with a point or condition of similar meaning that is.
14.11 This Agreement is the whole agreement between You and Us. Any other information that You may have seen or heard before You entered into this Agreement isn’t included.
14.12 If You have any questions or require help or support You can contact Us by calling customer services. In addition, You can go to the help and support pages of Our website.
15. Your Information
15.1 You confirm that the information that You provide to Us, including Your registration details, is true, accurate and complete. You agree to inform Us immediately of any changes to Your details by contacting Our customer services.
15.2 We will use Your personal information in accordance with the terms of this Agreement and Our privacy policy which You can find on Our website at www.axisfirst.co.uk/privacy. Our privacy policy explains what personal information we use and how we use it to deliver our products and services to you, including sharing with third parties. It includes how we contact you (including marketing), how we share your personal information, what else we use it for (such as for analytics and to tailor our offers to you) and how to contact us if you have any concerns about how we use your personal information.
15.3 In the event of a personal data security breach that affects You, We will notify the relevant authorities, and if appropriate, We will notify the subscriber or user of Our Services who is affected by the breach in writing. A personal data security breach that affects You (or the user) does not give You the right to terminate this Agreement.
Version 2, Date 1 June 2022
Your agreement with us (this “agreement”) is made up of the following documents:
i. The Service Contract;
ii. The relevant tariff(s) for the services we agree to provide to you; iii. Supplementary conditions relating to specific services, where applicable;
iv. The relevant service descriptions relating to specific services; and
v. These Terms & Conditions for Communications Services.
In the event of any discrepancy between documents listed above, the document listed first will take precedence.
The Services and Use of The Services
1. Provision of the Services
1.1. The Services we supply to you are those Services which (a) you have ordered in writing, by email or by telephone and we have subsequently confirmed in writing, or (b) you have elected to receive as set out in a Service Agreement signed by you provided that it has been subsequently confirmed by us in writing or by delivering the Services, or (c) have been ordered via our website or portal and we have subsequently confirmed such order.
Services may be subject to a third party service supplier accepting an order from us for such services and where such third party service supplier does not accept such order we reserve the right to cancel the ordered Services provided that we will use all commercial reasonable efforts to mitigate such cancellation. Services may be subject to survey and any changes will be agreed between the parties in writing.
1.2. We will supply you with the services in accordance with our conditions and the accompanying signed Service Contract. The combination of which will form a service contract between the parties.
1.3. We will use reasonable endeavours to provide you with the Services by the date(s) we agree with you and to continue to provide the Services until this Agreement is terminated. However, we will not be liable for any loss or damages should the Services not commence or restart on the agreed date.
1.4. In providing the Services we shall use the reasonable skill and care that may be expected from a competent communications service provider.
1.5. We will activate or install the Service and will perform a series of commissioning tests to ensure that the configured Service is functioning correctly. On successful conclusion of the tests the Service will be deemed to be ready for use and we shall be entitled to invoice you for such Service from this date.
1.6. During testing, you may notify us by email or telephone of any material non-conformity of the Service. To the extent that such non-conformities will have, in our opinion, a material detrimental effect on the Service, we will use reasonable endeavours to remedy such non conformities.
1.7. Where an appointment is made for us to visit your Site, including for the purposes of a site survey or for installation and the visit cannot be successfully completed for any reason where we are not at fault we will charge you with our standard aborted visit charge which may be applicable at the time. Rescheduled appointments following an aborted visit will be subject to new lead-times.
1.8. You agree to not unreasonably delay installation of any Service for any reason, any delay to the installation will not invalidate the agreement and we reserve the right to invoice you for the Minimum Spend after giving you written notice and you will remain liable for all Service Charges for the Initial Term.
1.9. All Services
1.9.1. Services may be subject to Acceptable Use Policies and, where any fair usage is exceeded, additional charges will apply.
1.9.2. You agree and acknowledge that your use of a Service must comply with all relevant legislation, regulations, guidelines and codes of practice and that we will not be liable where your use of this Service fails to comply. Should we reasonably suspect that your use of a Service is in breach of any applicable legislation, regulation, guidelines or codes of practice or any other reasonably suspected abuse or bad practice then we reserve the right to suspend or terminate such Service with immediate effect.
1.9.3. You agree that some Services variants may be subject to availability and where an ordered Service is not available for any reason we reserve the right to provide an alternative Service variant for which you may incur different Service Charges. Where a Service variant is not available we will make best endeavours to advise you of this before progressing with your order. In addition should there be a change in any international regulation which would prevent us providing international Services we reserve to cancel the ordered international Service.
1.9.4. For the avoidance of doubt, you may not resell the Services although they may be utilised by an Associated Company of yours for which use you shall remain fully liable.
2. Changes and interruptions to the Services
2.1. We may have to do some things that could affect the Services. Some of these things are listed in this paragraph. If we have to interrupt the Services we will restore them as quickly as we reasonably can.
2.2. Occasionally we may have to:
2.2.1. change the code or phone number or the technical specification of the Services for operational reasons;
2.2.2. interrupt the Services for operational reasons or because of an emergency;
2.2.3. give you instructions that we believe are necessary for health or safety or to maintain the quality of the Services that we supply to you or to our other customers.
2.3. Should the change we make have a material adverse effect on you or the Services we provide then you have the right to terminate the Agreement under the terms of paragraph 17.3.
2.4. We cannot guarantee and do not warrant that the Services will be free of interruptions or will be fault-free and we will not be liable for any loss or damages should the Services be interrupted from time to time. You accept that there may also be degradations of the quality of the Service from time to time due to matters beyond our control, and that we will not be liable for any loss or damages should the quality of the Service we provide be affected by such matters.
Equipment
3. Equipment
3.1. To the extent possible, we shall use reasonable endeavours to pass on to you the benefit of any manufacturers’ warranties in relation to equipment supplied by us in connection with the Services.
3.2. On delivery of the Equipment to you full risk of damage to, or loss of, such equipment shall pass to you. For a minimum period of thirty (30) days from delivery, if any Equipment materially fails to comply with the manufacturer’s specifications (a “defect”), you will immediately notify us of such defect, and we will investigate such defect. If we agree that the Equipment has a defect, we will replace the Equipment.
3.3. Where a fault reported is deemed to be caused by a router provided by us, we will replace this as long as the current router is within its warranty period. We will despatch a new router to you as soon as possible, pre-configured with the username and password and any IP Addressing requested on the original order. At this point a charge for the new router will be raised and only credited back on receipt of the original faulty router. If the router is outside of the warranty period, we will provide a new router and the new router will be chargeable in accordance with the tariff applicable at the time.
3.4. Where we agree you may provide your own router at the outset or as a replacement, you will, at your own cost, be responsible for repairing, maintaining, and replacing any equipment that no longer operates in accordance with its manufacturer’s specifications. Where you replace the Equipment, the replacement shall be (i) equivalent to the original’s functionality and performance, and (ii) approved by us in writing. You will be responsible, at your own cost, for (i) reconfiguring any replacement of the Equipment to the same or equivalent configuration as the original (if agreed by the parties, such reconfiguration work may be provided by us as a professional services at our then current standard rates), and (ii) installing such reconfigured replacement in place of the original. Any impact on the Service caused by substandard performance or non-availability of any equipment provided by you shall be excluded from our service level obligations under the Agreement.
3.5. All handsets for Horizon Services provided by Us are provided with the Horizon settings pre-configured. We do not offer a service to unlock handsets or remove these settings during or at the end of your contract. Notwithstanding this paragraph 3.5, where we do agree to unlock handsets a charge shall be applied per handset.
4. Sale Equipment
4.1. The quantity, quality, and description of and any specification for the Sale Equipment shall be those set out in the Service Agreement, Order Form or product service descriptions as may be amended from time to time.
4.2. We shall deliver the Sale Equipment to your address, and time shall not be of the essence for delivery.
4.3. Risk in the Sale Equipment will pass to you on delivery of the Sale Equipment. Therefore, it is your responsibility to look after the Sale Equipment and you will have to pay if you wish to replace or repair the Sale Equipment if it is lost, stolen or damaged.
4.4. You will not own the Sale Equipment until you have paid us in full for the Sale Equipment and we reserve the right to require you to return to us, or for us to collect (at your cost), the Sale Equipment if you do not pay us in full for the Sale Equipment by the due date for payment (in accordance with paragraph 8 below). Subject to the foregoing, you will be entitled to continue to use the Sale Equipment after expiry or termination of this Agreement.
4.5. Unless otherwise agreed, you will be responsible for installing the Sale Equipment. We will not be liable for any loss, costs, damages or faults caused by, or repairs required as a result of, installation or misuse of, or damage to, any Sale Equipment. You agree to indemnify us for all claims, losses, damages and expenses that are brought against us, incurred by us, or arising as a result of the same.
5. Rental Equipment
5.1. We will at all times own all Rental Equipment supplied to you. You will not let, sell, charge, assign, sub-license or allow a third party to use the Rental Equipment nor remove any labels, and shall not prejudice our rights in the Rental Equipment in any way. We may replace the Rental Equipment from time to time either with your prior consent or provided that the replacement Rental Equipment is of a specification that is at least equal to the Rental Equipment originally supplied and such change does not materially disrupt the provision of the Services.
5.2. Subject to the other terms of this paragraph 5, we (or our authorised representative) shall, during our usual working hours: 5.2.1. where necessary install the Rental Equipment at your premises at a time and date agreed with you; and
5.2.2. use our reasonable endeavours to repair any faults to the Rental Equipment in accordance with our standard procedures (which are available on request).
5.3. It is your responsibility to look after the Rental Equipment that is in your possession or custody and you agree to pay for the Rental Equipment to be replaced or repaired if it is lost, stolen or damaged.
5.4. You will notify us promptly of any faults which occur, any repairs which become necessary, and of any loss, theft or damage to the Rental Equipment.
5.5. You agree that you will only use the Rental Equipment in conjunction with the relevant Services and shall comply with our reasonable instructions in relation to its use.
5.6. You shall be responsible for maintaining adequate cover in place to insure the Rental Equipment while it remains in your possession and custody. You will also be responsible for obtaining and, where appropriate, paying for all necessary licenses, consents and approvals required for the installation and use of the Rental Equipment.
5.7. You will not (and you will ensure that no-one else will) repair, alter, modify or maintain, or make any additions or attachments to, or otherwise alter, the Rental Equipment without our prior written consent. We will not be liable for any costs or charges incurred, faults caused by, or repairs required as a result of, installation or programming of Rental Equipment that is carried out by any other person (other than our employees or agents). You agree to indemnify us for all losses, damages and expenses that are brought against or incurred by us, arising as a result of the same.
5.8. On expiry or termination of the Agreement or the relevant Service, all Rental Equipment must be returned to us in reasonable condition, subject to reasonable wear and tear. If you fail to return the Rental Equipment in a reasonable condition or at all we may invoice you for a sum equal to the original cost of the Rental Equipment less any depreciation together with any costs reasonably incurred by us.
5.9. In the event that you return Rental Equipment to us and it is not received by us, in the absence of reasonable evidence that the Rental Equipment has been delivered to us you accept that you shall remain liable for the Rental Equipment.
6. Call monitoring
6.1. We may occasionally monitor and record calls made to or by us relating to customer services and telemarketing calls, for the purpose of training and improving customer care services, including complaint handling. We and/or our suppliers may also record Emergency Calls.
7. Data protection and use of your information
7.1. Each party shall comply at all times with its respective obligations under the provisions of the Applicable Data Protection Legislation and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Applicable Data Protection Legislation.
7.2. In the event we provide a service where we process Personal Data on your behalf, we are the Data Processor and you are the Data Controller. In connection with such processing we shall:
7.2.1. process the Personal Data only on documented instructions from you and in accordance with this Agreement;
7.2.2. ensure that persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and take steps to ensure that such persons only act on our instructions in relation to the processing;
7.2.3. implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected (and you shall notify us immediately if the nature of such Personal Data changes in a material way);
7.2.4. remain entitled to appoint third party sub-processors. Where we appoint a third party sub-processor, we shall, with respect to data protection obligations (a) ensure that the third party is subject to, and contractually bound by, at least the same obligations as we are, and (b) remain fully liable to you for all acts and omissions of the third party;
7.2.5. in addition to the sub-processors engaged pursuant to paragraph 7.2.4 above, be entitled to engage additional or replacement sub-processors, subject to (a) the provisions of paragraph 7.2.4 above being applied, and (b) we notifying you of the additional or replacement subprocessor, and where you object to the additional or replacement sub-processor, the parties shall discuss the objection in good faith;
7.2.6. not transfer Personal Data outside of the UK / European Economic Area except where such transfer is made in such a way as to ensure that the level of protection offered to natural persons by the Applicable Data Protection Legislation is not undermined; 7.2.7. assist you to respond to requests from Data Subjects who are exercising their rights under the Applicable Data Protection Legislation;
7.2.8. notify you without undue delay after becoming aware that we have suffered a Personal Data breach and shall not inform any third party of the Personal Data breach without first obtaining your prior written consent, except when law or regulation requires it; 7.2.9. on your reasonable request, assist you to comply with your obligations pursuant to Articles 32-36 of the GDPR (or such corresponding provisions of the Applicable Data Protection Legislation), comprising (if applicable): (a) notifying a supervisory authority that we have suffered a Personal Data breach; (b) communicating a Personal Data breach to an affected individual; (c) carrying out an impact assessment; and (d) where required under an impact assessment, engaging in prior consultation with a supervisory authority;
7.2.10. unless applicable law requires otherwise, upon termination of the Agreement, at your option, comply or procure compliance with the following (i) delete all personal data provided by you to us and/or (ii) return to you all Personal Data provided by you to us; and
7.2.11. not more than once in any 12 month period and on reasonable notice, of at least twenty (20) Business Days, permit you (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit our data processing activities to enable you to verify and/or procure that we are complying with our obligations under this paragraph 7.2.
7.2.12. Each party may collect, store and process contact Personal Data (such as name, work email address, telephone/mobile work number, and work address) of the other party and/or its employees for the purposes of the performance of this Agreement, and such collection and/or processing shall be carried out in accordance with such party’s privacy policy.
Your Obligations
8. Paying our Service Charges for the Services
8.1. Service Charges
8.1.1. You must pay the Service Charges for the Services as agreed in the Service Contract and any applicable pricing table. This applies whether you or someone else use the Services and whether the Services are used with your full knowledge and consent or otherwise. We may vary the Service Charges as explained in paragraph 17.2.
8.1.2. All pricing will be indicative only and is not binding until confirmed by us. The pricing given is valid at the point of quote, but it can only be confirmed at the point of order.
8.1.3. You acknowledge and agree that we have agreed to supply the Services to you at the agreed Services Charges on the basis that you have committed to the Minimum Spend and Initial Term. You agree that you shall only be entitled to the agreed Service Charges if you achieve those commitments. In addition, unless otherwise agreed by us in writing, any discount to the Service Charges as may be specified on the Service Contract shall only apply during the Initial Term, and shall not apply to subsequent periods, and if agreed is again subject to you continuing to meet the Minimum Spend and Initial Term.
8.1.4. You accept there may be charges for elements of a Service (such as additional features, regrades, moves or ceases) that you may incur which may not be detailed in your Service Contract but you accept responsibility for these charges should they occur. 8.1.5. We will commence invoicing for each Service once it is delivered to you.
8.1.6. We may require you to pay a deposit and / or require you to procure that your parent company or related company guarantees the payment of any charges under the Agreement. You agree to enter into (and / or procure the execution of) any agreement or deed reasonably required for any such purpose.
8.1.7. After the Initial Term, we shall be entitled to revise any charges under the Service Contract with effect from any anniversary of the Contract Commencement Date to reflect our then current standard rates by giving you not less than thirty (30) days’ written notice.
8.1.8. We shall be entitled to increase the Service Charges at any time with immediate effect where we can reasonably demonstrate that such an increase is due to an increased cost of providing the Service caused by a third party supplier, or legal or regulatory change. Any such increase in the Service Charges will not exceed the increased cost incurred by us in providing the Service.
8.1.9. Should we or anyone we have instructed to carry out work on our behalf at your premises be unable to access your premises we reserve the right to charge abortive visit charges.
8.1.10. Where applicable, travel and subsistence costs may be recovered by us in addition to the Service Charges, such costs shall only be recoverable to the extent that they are not already covered elsewhere in this Agreement and that they have been reasonably incurred exclusively in connection with providing you with the Service.
8.1.11. Where the ability to self-provision any Services on an online portal is available to you and you order any Services using this self-provision functionality, you agree that we will automatically bill you for these Services without the need for further signed orders from you.
8.2. Installation and Connection Charges
8.2.1. The Service Contract sets out such costs payable for the Services we have agreed to supply to you. However, we may be unable (due to third party constraints) to tell you when you place, or we confirm, your order for the Services how much these costs will be. If this is the case, we will give you an estimate of how much the installation costs will be prior to commencement of the installation work, but there may be supplementary excess construction charges. You will have ten (10) days to refuse any excess construction charges In the event of an installation being cancelled before being completed you agree to pay all of the installation costs actually incurred to the point of cancellation which will be notified to you at the time.
8.3. Equipment
8.3.1. You must pay the price for any Sale Equipment that we supply to you. We will invoice you for the Sale Equipment in the next invoice that we send to you following the date on which we dispatch the Sale Equipment to you. You shall also pay the Service Charges for any Rental Equipment that we supply to you, and we shall invoice you for this monthly.
8.4. Invoices
8.4.1. We will send you your first invoice at the beginning of the month after the Services commence and thereafter on a monthly basis, but we shall be entitled to send you an invoice at a different time, which you shall pay in each case in accordance with paragraph 8.7. We will send all invoices and other correspondence to the address set out in the Service Contract or otherwise the address you ask us to. We will show on the invoice which Service Charges are payable in advance or in arrears. We will include all Service Charges on the next invoice where possible, and in any event as soon as we can. Invoices shall be deemed to have been accepted by you if you do not present a written objection, identifying clearly the disputed invoice and the reasons why it is challenged, to us within six (6) months of the date of the invoice. If such objection is made, we shall both make all reasonable efforts to resolve such dispute promptly. Provided you comply with these requirements in presenting your objection, if we fail to respond to that objection within thirty (30) days after its receipt by us, the objection will be deemed to have been accepted by us. We will accordingly amend the relevant invoice either with an appropriate credit to you or you shall be liable to pay the balance (if any) of the amended invoice within seven (7) days of its receipt by you.
8.5. Periodic Services Charges
8.5.1. You will incur Service Charges from the time any part of a Service is used or received except in the case of Services subject to a periodic Service Charge, in which case you will incur Service Charges from the date the Service is made available for use. We will usually ask you to pay the Service Charges in advance and your first invoice will include both one month’s Service Charge in advance and a Service Charge for a part month’s Service Charge from the Contract Commencement Date up to the beginning of the first complete month, where appropriate, and then monthly in advance thereafter.
8.6. Payments in advance and deposits
8.6.1. We may ask you for a payment in advance before payment would normally be due, which you shall pay in accordance with paragraph 8.7. This advance payment will not be more than our best estimate of your following month’s invoice. Should your advance payment exceed your actual invoice then any surplus will be credited to your account to be offset against subsequent invoices, should there be no further invoices and your account is not in debit then we will refund to you any surplus after deducting any cancellation or termination charges.
8.6.2. We may ask for a deposit at any time, as security for payment of your invoices if it is reasonable for us to do so, which you shall pay in accordance with paragraph 8.7. Our procedures for deposits will be explained to you at the relevant time.
8.7. Terms of payment
8.7.1. Our standard credit terms are payment within fourteen (14) days of date of invoice by direct debit and these are the credit terms which will apply to this Agreement unless we have agreed otherwise in writing. You must pay all Service Charges within the credit terms which we have agreed and any advance payments and deposits when we ask for them. We reserve the right to apply a nominal monthly charge for non direct debit payment methods, such charge may be varied by us and notified to you from time to time. Where payment is arranged through a finance provider payment shall be in accordance with the terms of the finance agreement. Unless otherwise stated all Service Charges and invoices are in pounds sterling and exclude VAT which is chargeable at the applicable rate. If you pay us from a non UK bank account which means we incur costs for receiving international payments, then we shall pass these costs on to you. 8.8. Finance and Credit
8.8.1. You consent to and shall procure that your owners, directors, officers and assigns consent to, us carrying out searches with credit reference agencies relating to the credit worthiness of your Company and/or your owners, directors, officers and assigns and you undertake to supply or procure the supply of all information requested for a credit search with a credit reference agency, who will add to your records and/or those records of your directors, officers and assigns details of the searches and these will be seen by other organisations that make searches. It is agreed that where we approach a finance provider to arrange finance for the purchase of Equipment then we are acting as an agent for the Customer and not for the finance provider.
8.8.2. In the event that we are unable to obtain finance on the terms originally proposed or on other terms acceptable to you then we shall return any deposit received from you without further liability to you. Where third party indemnities are required by the finance provider failure to provide such indemnities shall constitute a breach of these Conditions and shall entitle us to retain any deposit paid by you.
8.8.3. After delivery and installation (where applicable) is completed any failure by you to complete the finance agreement documentation and/or commence payment in accordance with the terms of the finance agreement shall render you liable to pay to us the full value of the order (plus VAT) within seven (7) days of presentation of an invoice.
8.9. Online Orders and Payment
8.9.1. Where you place an order and make a payment online for that order and we accept your order, we will confirm your order and receipt of payment by email at which point your contract will be binding. You may also get a payment confirmation from the third party payment processing company. Where we do not accept your order we reserve the right to return a payment to you. You should contact us immediately if you have any concerns regarding the order or payment. Where you fail to advise us of any issues regarding your online payment we are not liable for any consequences of any such payment but will make reasonable endeavours to rectify any of your concerns.
8.10. Trial Periods
8.10.1. Where you take a product or service on a trial basis for a full, discounted or zero charge for a fixed period, unless otherwise advised to you in writing, you need to give us notice in writing if you wish to cancel the Service at the end of the trial. If you fail to give us notice then we will automatically invoice you for the product or service at the end of the trial for the remainder of the agreed contract term (or where there is no agreed term, for a minimum of twelve months). For the avoidance of doubt, unless otherwise agreed in writing you will be liable for all usage Service Charges during the trial period. Should you wish to cancel after the trial then you agree to return, at your own cost, any equipment to us in full working order.
8.11. Other Charges
8.11.1. We reserve the right to make a nominal monthly charge for paper itemised billing; our online billing is provided as standard to all customers free of charge.
8.11.2. Where we owe you any monies, you agree that we may offset this against any monies you may owe us before we make any payment to you.
8.12. Credit Limit
8.12.1. We may apply a credit limit to your account and if you exceed this credit limit we reserve the right to suspend Services until you have paid a deposit.
9. Your other responsibilities
9.1. You agree to:
9.1.1. prepare the Sites and your networks in accordance with our instructions. You are responsible, at your own cost, for the power supply and arranging alternative power supplies if any temporary supply fails. Installing engineers may refuse to install equipment if they perceive a hazard or risk,
9.1.2. provide us with full access to your Sites and networks and make available such office and technology facilities as may be necessary for us to provide the Service,
9.1.3. provide a suitable operating environment for the equipment in accordance with the manufacturer’s operating instructions, promptly furnish us with such information and documents as we may reasonably require for the proper performance of the Services,
9.1.4. obtain at your own cost all third party consents, licences and rights reasonably required in order to allow us or our subcontractor to provide the Service and be responsible for complying with any applicable laws, statutes, regulations and codes of practice, in relation to the Services,
9.1.5. put in place adequate security and virus checking procedures in relation to any computer facilities to which you provide us with access,
9.1.6. take necessary steps to manage your network and internal infrastructure to prevent conflicts with the Service that may result in fault or failure of the Service,
9.1.7. supply on an ongoing basis, at your cost, all space, power supply access points, cables, trunking, electricity, air conditioning and any other facility as may be defined following the site survey required to receive the Installation Service and the Service,
9.1.8. keep full and up-to-date secure backup copies of the data on the Network in accordance with good industry practice,
9.1.9. comply with and maintain compliance with all such laws and regulations that relate to their provision of telecommunications and other products or services supplied by us.
9.1.10. not allow any unauthorised user or any third party to access or use the Equipment or the Service, and shall take all reasonable security precautions to avoid such unauthorised access, use, add to, modify or interfere with in any way, the Equipment or the Service, and
9.1.11. follow any other reasonable instruction we may give you. 9.1.12. You agree to comply with our reasonable instructions relating to the Services and any equipment we supply to you in connection with the Services.
9.1.13. Any failure to do any of the things detailed in this clause may result in the need to reschedule your Installation Service and you may incur aborted visit charges and new appointment times and charges which will be subject to new lead times. Any failure to do any of the things detailed in this clause which results in configuration issues on the Equipment may result in you being charged for any reconfiguration work or for replacement Equipment.
9.1.14. If we have to enter your premises you agree to let us do so within normal working hours (Monday to Friday, 9am to 5pm) or otherwise if agreed with you in advance. We will meet your reasonable requirements regarding the safety of people on your premises and you must do the same for us.
9.1.15. If we need someone else's permission to cross, or put our equipment in, or make an installation on their premises, you must get that permission for us and make any necessary arrangements. We will not be liable for any loss or damage where this permission is not obtained by you and you agree to pay any costs actually incurred.
9.1.16. When our work is completed, you will be responsible for putting items back and for any necessary re-decorating.
9.2. Misuse of the Services
9.2.1. You will not use the Service in any way that would constitute or contribute to the commission of a crime, tort, fraud, or other unlawful activity (including activities deemed unlawful under a complainant’s legal jurisdiction) (“Laws”). You will indemnify, and keep us fully indemnified, against all costs, claims, demands, expenses, and liabilities arising out of, or in connection with, any claim that the Service (or its use) infringes any Laws.
9.2.2. You warrant that any material and / or communication received, transmitted, hosted, or otherwise processed using the Service will not be menacing, of a junk mail or spam like nature, illegal, obscene, threatening, defamatory, discriminatory, promote illegal or unlawful activity, or be otherwise actionable or in violation of any rules, regulations, or laws to which the Service is subject, and will not infringe our intellectual property rights or that of any third party. You will indemnify and keep us fully indemnified against all costs, claims, demands, expenses and liabilities arising out of or in connection with any breach or reasonably suspected breach of this Clause.
9.2.3. You agree not to send and receive data in such a way or in such amount so as to adversely affect the network (or any part of it) which underpins any Service or to adversely affect our other customers or customers of our suppliers.
9.2.4. You also agree not to use the Service in a way which (in our reasonable opinion) brings our name into disrepute, or which places us in breach of our legal or regulatory obligations, and you must make sure that this does not happen. The action we can take if this happens is explained in paragraph 13. If a claim is made against us because the Services are misused in these ways, you must indemnify us in respect of any sums we are obliged to pay and/or costs we incur.
9.3. Indemnity
9.3.1. If you use the Services for business purposes, you must indemnify us against any claims that anyone (other than you) threatens or makes against us because the Services are faulty or cannot be used by them.
9.4. Existing Contractual Obligations
9.4.1. It is your responsibility to ensure that signing a contract with us does not breach any existing contractual obligations you may have with any other suppliers and you should give any other suppliers notice as may be required by them. We are not responsible or liable for any costs, financial losses or disputes that may arise from any such breach of contract or your failure to give the correct notice. We recommend that you review these commitments before transferring any Services to us so that you understand the impact such transfer may have prior to transferring any such services. Any existing contractual obligations you may have will not invalidate any agreement you have entered into with us.
9.5. Resilience
9.5.1. It is your responsibility to ensure you have adequate resilience in place to protect against any loss of data, service or connectivity; this includes a separate power supply for IPT phones. In accordance with paragraph 11.2, we will not be liable for any loss or damage (financial or otherwise) where you fail to do so.
9.6. User Names, Passwords and Pin Codes
9.6.1. It is your responsibility to keep private any user names, passwords or pin codes that we may provide you with to use any of our Services. You are liable for all charges associated with the use of such user names, passwords and pin codes to access our Services unless you advise us that the security of any of the user names, passwords or pin codes may have been compromised and we confirm back to you that we have disabled the access. Should you fail to notify us of any such compromise in security then you will remain liable for all Service Charges incurred in accessing the Services. Where we disable any access following a compromise in security, we shall provide you with new user names, passwords or pin codes as appropriate.
9.7. Your Details
9.7.1. It is your responsibility to inform us of any changes to any of your personal details including but not limited to contact names, telephone numbers, email addresses, site addresses or billing addresses. We shall not be liable for any consequence of us having any incorrect details unless due to our negligence.
Repairing Faults
10. Repairing faults
10.1. We will investigate any fault that is reported to us according to our standard procedures for the Service in question (which are available on request). We will use all reasonable endeavours to repair any fault that is reported to us and which is directly caused by us or our employees or agents according to our standard procedures for the Service in question and the Service Level Agreement.
10.2. When we agree to work on a fault outside the hours covered by our standard procedures, you will be liable to pay us an extra charge at the applicable rate set out by us and in force at the time.
10.3. If you tell us there is a fault in a Service and we find either that there is not or that you, someone at your premises or a third party (including, without limitation, another network operator or communications supplier) has caused the fault or the interruption in service, we may charge you for any work we have done to try to find the fault or to repair it. We are not liable for any loss or damages arising from a fault or interruption in service caused by someone other than us, and we are not responsible for fixing any faults not caused by us.
10.4. During any fault investigations, we may require you to carry out tests and we will require you to feedback any results of these tests to allow us to follow our standard procedures and conclude our investigations.
10.5. Where a fault reported is deemed to be caused by a router provided by us, we will replace this as long as the current router is within its warranty period. We will ship a new router to you as soon as possible, pre-configured with the username and password and any IP Addressing requested on the original order. At this point a charge for the new router will be raised and only credited back on receipt of the original faulty router. If the router is outside of the 12 month warranty period, the new router is chargeable and will show on the next invoice.
Limitation of Liability
11. Liability
11.1. Neither party excludes or limits its liability for personal injury or death as a result of its negligence, fraud or fraudulent misrepresentation, or wilful misconduct.
11.2. Subject to paragraph 11.1, neither party has any liability (howsoever caused including (without limitation) by negligence) for any loss of business, profits, revenue or savings the other party expected to make, wasted expense, financial loss, data being lost or damaged, damage to reputation, for any liability for any loss that is not reasonably foreseeable or for any indirect or consequential loss.
11.3. The liability of a party in contract, tort (including negligence) or otherwise arising under or in connection with a Service Agreement in any twelve (12) month period starting on the Contract Commencement Date or any anniversary thereof shall be limited to the aggregate Service Charges paid or payable by you to us in such twelve (12) month period in relation to such Service Agreement, provided that such limit shall not apply to any Service Charges duly owed by you to us.
11.4. Except as expressly set out in this Agreement, all conditions, warranties, terms, undertakings and obligations implied by statute, common law, custom, trade usage or otherwise are hereby excluded to the maximum extent permitted by law.
11.5. Each part of this Agreement that excludes or limits our liability operates separately. If any part is disallowed or is not effective, the other parts will continue to apply.
11.6. The provisions of this paragraph 11 shall continue to apply notwithstanding termination of this Agreement.
12. Matters beyond our reasonable control
12.1. If we cannot fulfil, or are delayed in fulfilling, or are interrupted in continuing to fulfil, our obligations under this Agreement because of something beyond our reasonable control such as, without limitation, lightning, flood, or exceptionally severe weather, fire or explosion, civil disorder, war, or military operations, national or local emergency, anything done by government or other competent authority, acts or omissions of other communications suppliers or network operators, or industrial disputes of any kind, (including those involving our employees or suppliers), we will not be liable for this.
Changing and Terminating The Agreement
13. Breach of the Agreement
13.1. Each party may suspend any or all of the Services or terminate the Agreement immediately at any time by notifying you in writing if:
13.1.1. the other party commits a material breach of this Agreement and fails to remedy the breach within a reasonable time of being asked to do so;
13.1.2. the Service(s) are being used in a way forbidden by this agreement;
13.1.3. the other party has a receiver or manager appointed over the whole or any substantial part of its assets, it becomes insolvent, goes into liquidation, becomes subject to an administration order or makes any composition or arrangement with its creditors (other than for the purposes of amalgamation or reconstruction), or it threatens to cease to carry on business.
13.2. If you fail to pay any Service Charges due to us by the due date we may (without losing or reducing any other right or remedy) suspend any Service (in whole or in part) or terminate the Agreement without notice if;
13.2.1. you fail to make any payment requested within fourteen (14) days of the date of a letter, e-mail or other appropriate correspondence requesting such payment;
13.2.2. two (2) consecutive direct debit requests are rejected; and/or
13.2.3. you fail to pay any payment on the due date where there have been two (2) preceding failures which were remedied within the fourteen (14) day period.
13.3. We reserve the right to charge interest at the rate of five percent (5%) above the bank of England base rate per annum on any charges not paid by the due date for payment until the date when they are received by us.
13.4. If we suspend any Services, we will not provide them again until you rectify the situation that caused us to suspend the Services or you have satisfied us that you will do so or that the Services will not be used in a way that is forbidden by this agreement.
13.5. If we suspend any Services because you breach this Agreement, the Agreement will still continue and you must still pay us any Service Charges as and when they arise unless and until the Agreement is terminated.
13.6. If this Agreement or any of the Services are terminated in accordance with this paragraph 13 during the Initial Term or any agreed term applicable to each of the Services, we will levy a cancellation charge in relation to each relevant Service calculated in accordance with the following:-
13.6.1. Each Service for which a monthly Service Charge is payable - number of months remaining of Initial Term for that Service multiplied by the monthly Service Charge;
13.6.2. Call Spend – number of months remaining on Initial Term multiplied by the monthly Minimum Spend (or the average of your last three months call spend where there is no Minimum Spend);
13.6.3. Repayment of any subsidised charges or any other contribution we may have made towards any other costs, as described in paragraph 16.2;
13.6.4. Repayment of any discount or other benefit you may have received which was based on a minimum contract term commitment; and/or
13.6.5. Any applicable cease charges as may be detailed in the Service Charges.
13.7. Following a suspension of services, we will only reactivate your services after you have paid the reactivation charges as may be advised at the time.
14. Cancelling the Services before they are provided
14.1. For the avoidance of doubt, this cancellation right does not apply to business users. We do not provide services to domestic users.
15. Terminating the Agreement after the Services are provided 15.1. Termination at end of Initial Term
Either party may terminate this Agreement in respect of a Service by giving the other party not less than thirty (30) days notice in writing to take effect at the end of the current Initial Term for the relevant Service. Where a Service has a notice period of greater than thirty (30) days then this amount of notice must be provided on that Service.
15.1.2. If we give you notice to terminate under paragraph 15.1.1, you must pay Service Charges for Calls made up to the end of the relevant Initial Term. If you give us notice to terminate under paragraph 15.1.1, you must pay Service charges for Calls made up to the end of the relevant Initial Term.
15.1.3. If you fail to give us notice you must pay Service Charges until thirty (30) days, or longer where a service has a greater notice period, after you have ceased to use our Service.
15.1.4. Some Services may incur cease charges as detailed in the Service Charges and these will be chargeable on termination unless otherwise agreed in writing.
15.2. Termination before end of Initial Term
15.2.1. If you want to terminate this Agreement after the date on the Signed Service Agreement in respect of a Service prior to the end of any Initial Term for the relevant Service (other than because we have materially altered the conditions of this Agreement under paragraph 17.3) you must give us at least thirty (30) days notice in writing and we will levy a cancellation charge calculated in accordance with the following:-
15.2.1.1. Each Service for which a monthly Service Charge is payable - number of months remaining of Initial Term for that Service multiplied by the monthly Service Charge; and/or
15.2.1.2. Call Spend – number of months remaining on Initial Term multiplied by the monthly Minimum Spend less any monthly Service Charges (or the average of your last three months call spend where there is no Minimum Spend), whichever is the greater; and/or
15.2.1.3. Pro-rata or full repayment of any subsidised installation or any other contribution to upfront or ongoing costs paid by us as described in paragraph 16.3 and in accordance with the terms of the subsidised installation, and/or
15.2.1.4. The appropriate notice period charge for each Service, and/or
15.2.1.5. Repayment of any discount or other benefit you may have received which was based on a minimum contract term commitment, and/or
15.2.1.6. Any applicable cease charges as may be detailed in the Service Charges.
15.2.2. Should you fail to pay the early termination cancellation charges with 10 days (or 5 days for non direct debit payment) of the date of invoice we reserve the right to suspend your Services.
15.2.3. If you have paid any Service Charge in respect of a Service for a period after this Agreement has ended in respect of that Service, we will either repay it or off set towards any money you owe us.
15.2.4. You must pay all Service Charges for the Services until the date on which we stop providing the Services to you and any applicable notice period.
15.2.5. We also have the right to terminate this Agreement or any of the Services immediately on notice to you in accordance with paragraph 13 and in these circumstances the thirty (30) day notice period will not apply.
15.3. Additional Termination Provisions
15.3.1. The provisions of this paragraph 15.3 shall be without prejudice to the other provisions of this Agreement.
15.3.2. At the end of this Agreement, you shall be responsible for arranging for the Services to be provided by another supplier (“the New Supplier”)
15.3.3. In the event that we terminate this Agreement pursuant to the provisions of paragraphs 13.1 or 13.2, the provision of Services shall end with immediate effect upon the service of notice to you, in accordance with the provisions of those paragraphs.
15.3.4. If we terminate this Agreement pursuant to paragraph 15.1.1 or if you terminate this Agreement for any reason whatsoever, on receipt of your notice of termination we will apply Standard rates, applicable at the time, to all Services on your account to take effect following expiry of your notice period.
15.3.5. Once you have served your minimum notice requirement, we may serve you a minimum of 48 hours notice to suspend your Services. Following suspension of your Services under this paragraph you may request that Services are reconnected and agree these will be subject to a reconnection charge and a new minimum contract period. We will notify you of this charge and contract period at the time.
15.3.6. Should you serve your required notice and fail to move your Services to a new supplier then you agree you will remain liable for all Service Charges at our Standard Tariff rates until such time that the Services are transferred to a new supplier.
15.3.7. In the event we take the business decision to discontinue providing a particular Service in any jurisdiction we shall be entitled to terminate the Service Agreement in connection with such Service upon a six (6) month notice to you and shall use our reasonable efforts to facilitate you replacing such Service for another similar service provided by a third-party supplier where available.
15.4. Additional Suspension Provisions
15.4.1. By giving reasonable notice to you, or if this is not practicable, such notice as is reasonably practicable in the circumstances, we may suspend the Service (or any part of the Service) for reasons to include but not limited to:
15.4.1.1. for operational reasons in accordance with the service levels; or
15.4.1.2. if required because of a regulatory or legal change; or
15.4.1.3. if we are obliged to comply with the order, instruction, or request of a court, government, agency, emergency service organisation, or other competent administrative or regulatory authority, requiring suspension to the Service; or
15.4.1.4. if your use of the Service may damage or disrupt the proper functioning of the infrastructure and / or equipment used to provide services to our other Customers.
16. Initial Term, Minimum Spend and Contract Renewal
16.1. Your agreement with us starts on the date on the signed Service Contract and your Contract Commencement Date will be the date on the signed Service Contract or the date each Service is first made available to you for use, whichever is the latest, unless in the case of a renewal of your contract where the new Contract Commencement Date will be the date immediately following the expiry of the previous contract. You accept that this may mean you will have multiple contracts and multiple Contract Commencement Dates and each Contract Commencement Date will be subject to the Initial Term.
16.2. The Initial Term and Minimum Spend will be as specified on the Service Contract, for each Service, or as otherwise agreed with you in writing. In the event that the Minimum Spend is not on the Service Contract then the Minimum Spend applicable will be the sum of any fixed Service Charges plus the average value of your call usage for the last three months of full billing. The Initial Term for any new installation will be at least thirty-six (36) months or greater as may be specified in the Service Contract or Order Form. Where you have committed to a Minimum Spend in relation to the Services, if you have failed to meet the Minimum Spend in any relevant twelve (12) month period then you shall pay to us, within thirty (30) days of the end of that period, the shortfall between the Minimum Spend for that period and the accrued Service Charges relating to the Services for that period.
16.3. If this Agreement or any individual Services are terminated during the Initial Term or any agreed term for the relevant Service(s) and you received free or subsidised installation or activation or any other contribution towards costs of any Services, Products, Equipment, Lines or third party termination charges as part of the Service Charges or otherwise, then we reserve the right to impose a termination charge equal to the original cost divided by the number of the months in the relevant term, multiplied by the number of months remaining in the relevant term.
16.4. After the expiry of the Initial Term, unless otherwise agreed with you in writing, your contract will automatically renew for a further period of twelve (12) months and this becomes your new Initial Term. This automatic renewal reoccurs on each twelve (12) month anniversary until the Agreement is terminated by either party by giving at least thirty (30) days written notice, or greater as may be specified for each Service, to expire no earlier than the end of the then current Initial Term. Such automatic contract renewal will be on the same terms and, unless otherwise agreed in writing, the same Minimum Spend will apply.
17. Changing the Agreement
17.1. In general 17.1.1. If you ask us to make any change to the Services or Rental Equipment we will ask you to confirm your request in writing. No action will be taken by us to carry out the change until we have received your written confirmation. If we agree to a change, this Agreement will be changed when we confirm the change to you in writing.
17.2. Conditions
17.2.1. We may change the terms and conditions of the Agreement (or any document comprising part of the Agreement) at any time on giving you no less than one (1) months' notice. We will notify you of any changes in writing, which may be an inclusion with your monthly bill. You agree that if you continue to use the Services following such notice being given you will be bound by the new Conditions.
17.2.2. In any given calendar year we shall be entitled to give you one month written notice to increase the Service Charges by an amount equal to the change in the annual UK Consumer Price Index (“CPI”) rate published by the Office for National Statistics (or by any other body replacing that office) in the month preceding the increase plus 3.9%. Should CPI be a negative rate then the 3.9% increase will apply. Service Charges for individual Services may be increased in accordance with this clause at different times in any given calendar year. This increase is in addition to any other increase to Service Charges which we may need to apply in accordance with 17.2.3.
17.2.3. We shall be entitled to increase the Service Charges at any time with a minimum of one (1) month written notice where such an increase is due to an increased cost of providing or maintaining or improving the Service or due to an increase in our costs caused by a third-party supplier, or a legal or regulatory change. Such increase shall be communicated to you by email or by updating the relevant pricing documentation in the Portal.
17.3. Material Adverse Effect
17.3.1. If we make a change to any of the Services we provide to you and you can demonstrate that change has a material adverse effect on your use of the Service then the termination charges detailed in paragraph 15.2.1 will not be payable by you if you wish to terminate the affected Services before the end of the Initial Term applicable to that Service. Termination charges for any subsidised installation as described in paragraph 15.2.1 will remain in effect and will be payable by you. All other Services shall remain unaffected by this termination. In the case of termination under 17.2.3 an increase of more than 10% in any twelve (12) month period (excluding any increase under 17.2.2) shall amount to a material detriment.
18. Transferring the Agreement
18.1. You cannot, and cannot try to, novate, assign or transfer (in whole or in part) this Agreement or the benefit of or the rights under this Agreement to anyone else. We may novate, assign or transfer (in whole or in part) this Agreement to any Associated Company.
General Conditions
19. Giving notice
19.1. Any notice given under this Agreement must be delivered by hand or sent by email or prepaid post as follows:
19.1.1. to us at the address or email address shown on the Service Contract or on your last invoice, or at any other address or email address we give you for this purpose;
19.1.2. to you at the address you have asked us to send invoices to or to the email address you have given us.
19.2. Any notices that we may send to you from time to time concerning your account, shall be sent to the main contact we have registered on your account. It is your responsibility to inform us of any changes to your nominated contact. We shall not be liable for any consequence of sending such notices to the incorrect contact unless due to our negligence.
20. Entire Agreement
20.1. The Agreement (including these Conditions, the documents referred to in them, the Service Contract and any conditions relating to specific Services) constitutes the entire agreement between you and us for the Services and supersedes any and all other written, recorded and oral communications between you and us in connection with the Services. In no event shall the pre-printed terms and conditions found on any purchase order, acknowledgement, or other form provided by you be considered an amendment or modification of this Agreement, even if such documents are signed by representatives of both parties and such pre-printed terms and conditions shall be null and void and of no force and effect.
Severance
21.1. If any of these Conditions or any term or condition of this Agreement is deemed invalid, void, or for any reason unenforceable, that term or condition will be deemed severable and will not affect the validity and enforceability of any remaining term or condition.
22. Reliance
22.1. You acknowledge that you have not been induced to enter into this Agreement by, nor have you relied upon, any representation, promise, assurance, warranty or undertaking (whether written or oral) by or on behalf of us or any other person save for those set out in this Agreement, except in the case of fraud.
23. No waiver
23.1. If you breach these Conditions and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these Conditions.
24. Survival
24.1. Any Conditions which are expressed to survive expiry or termination shall survive expiry or termination of the Agreement however caused.
25. Third Party Rights
25.1. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
26. Governing Law and Jurisdiction
26.1. Subject to paragraph 26.2, this Agreement shall be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
26.2. If your business meets eligibility criteria, you may be entitled to refer any complaint to Ombudsman-Service should you deem that we have failed to address a complaint to your satisfaction. 26.3. In certain jurisdictions where a third party supplier is providing the Services, then the relevant third party provider has the right to require a letter of undertaking or authority, or similar document from you or your end user in a format prescribed by the third party supplier. We shall have no obligation to provide any Services until it receives such letter or document. If a Service Agreement requires the delivery of Services in a jurisdiction where, in order for such Service Agreement to be enforceable, additional terms must be added, the parties shall incorporate such additional terms in the Service Contract (preserving to the fullest practicable extent this Agreement)
27. Applicable Conditions
27.1. This Agreement will continue in respect of each Service for the Initial Term applicable to each Service and thereafter unless and until terminated in accordance with this Agreement.
27.2. These Conditions apply to the provision of all Services.
27.3. Where we publish separate conditions for specific Services, both conditions will apply but those conditions will take precedence over these Conditions in the event of inconsistencies between them.
27.4. These Conditions in their entirety shall take precedence over any terms which may form your purchase order for any of the Services.
28. Publicity
28.1. We may make reasonable references to you (including the use of your business name or logo) as a purchaser of the Services in our advertising and/or promotional literature and other materials. 29. Definitions
“Applicable Data Protection Legislation” means (a) the Data Protection Act 2018; (b) the GDPR, read in conjunction with and subject to any applicable UK national legislation that provides for specifications or restrictions of the GDPR’s rules, to the extent it is applicable to the UK; and (c) from the date of implementation, any applicable secondary legislation in the UK that relates to the protection of Personal Data.
“Associated Company” means, as appropriate, the ultimate holding company of either party or any subsidiary thereof.
“Business Day” means any day other than a Saturday, Sunday or a public holiday in England.
"Call” means a signal, message or communication which is silent, spoken or visual that we agree to transmit for you under this Agreement.
“Conditions” means these Conditions for Communications Services and any other conditions specific to other Services (“Supplementary Conditions”).
“Contract Commencement Date” means the date your Initial Term commences.
“Contractual Delivery Date” means the date the physical tail circuit is connected to your site.
“Contract Renewal” means an automatic renewal of your contract for a further 12 months after the Initial Term and each subsequent 12 month renewal thereafter.
“Service Level Agreement” means the provisioning and fault management support processes and escalation paths as may be published and varied by us from time to time.
“Data Controller” shall have the meaning set out in the Applicable Data Protection Legislation.
“Data Processor” shall have the meaning set out in the Applicable Data Protection Legislation.
“Data Subject” shall have the meaning set out in the Applicable Data Protection Legislation.
“Emergency Calls” means calls made to 112, 999, 18000 numbers or other such numbers as may be designated for emergency use at any time.
“Equipment” – including but not limited to the preconfigured router, switches, power over ethernet switches (POE), handsets or any other Equipment we may provide as part of the Service.
“GDPR” means the General Data Protection Regulation (EU) 2016/679.
"Initial Term" means each initial and subsequent period of service for each Service as shown on the Service Agreement, the initial period to start on the date on which the relevant Service is first made available to you for use. For the avoidance of doubt, if the Initial Term is not stated on the Service Contact, the Initial Term will be 36 months.
"Line" means a connection to our network or that of our suppliers, whether direct or indirect.
“Minimum Spend” means in relation to each Service the monthly minimum spend commitment as outlined in the Service Contract or otherwise in any agreed tariff plan referred to in the Service Contract constituting the minimum amount you agree to pay to us each month.