Terms and Conditions
Definitions
1.1 ‘Service’ means line rental, direct or indirect access telecommunication service and/or any other service provided by Netcomm or its nominated subsidiaries to the customer.
1.2 ‘Customer Equipment’ means any equipment, the property of the customer or rented by the customer from a third party, connected to the public telephone network and used by the customer in order to use the Service.
1.3 ‘Netcomm’ or its appointed subsidiaries means Netcomm Communications Limited.
1.4 ‘Service Equipment’ means any equipment, which is the property of Netcomm, including equipment, pre-programmed with any Netcomm access codes, sometimes known as an autodialler, the function of which is to route calls over the Netcomm provided Network.
1.5 ‘Usage Charges’ means the charges made by Netcomm and its nominated subsidiaries to the customer for the use of the Service.
1.6 ‘Rate Schedule’ means the schedule of charges applicable from time to time in respect of the Usage Charges.
1.7 ‘Number’ means the telephone line(s) in respect of the telephone number(s).
1.8 ‘Network’ means the chosen telephone Network of Netcomm, which provides the direct or indirect access telecommunication Service or any other method, which is used to route calls.
1.9 ‘Carrier Pre-Selection’ means the method of routing calls over the Network, by way of transferring calls at the local exchange.
1.10 ‘Supply Period’ means the period during which Service is provided pursuant to this agreement, which shall commence on the day that Service is first provided.
Service
2.1 Netcomm will procure Service to the customer subject to the terms of this Agreement. Netcomm,or its principals may at any time without notice vary the Service for technical, operational or other reasons within its entire discretion.Netcomm will use reasonable endeavours to procure a continuous high quality Service in accordance with the terms and conditions set out herein.
2.2 Title to the Service Equipment shall remain with Netcomm UK whilst such equipment is on the customer’s premises, and at all other times, save as provided by clause 8.4.
Charges and Payment
3.1 Netcomm will make Usage Charges for the use of the Service in accordance with its Rate Schedule, appertaining to the relevant discount tariff applied to the customer account may be varied, but subject to the customer’s right to terminate referred to at clause 8.1(d).
3.2 Invoices are due for payment by Direct Debit 14 days after invoice date. If an invoice is not paid by Direct Debit 14 days after invoice, then the Usage Charges for Service to which that invoice relates, together with all other Usage Charges for Service to be invoiced for during the remainder of the Supply Period shall be charged at a deemed rate, approximately equal to British Telecom Standard Rates, including but not limited to, British Telecom Standard call charges, minimum call charges, line rental charges and Network Feature charges.
3.3 Interest will be charged on unpaid invoices from the due date until payment at a rate of 1.5% per month or part thereof.
3.4 Value Added Tax, or any other levy or tax, at the rate prevailing will be added on to al sums due to Netcomm which are quoted as exclusive of Value Added Tax.
3.5 The customer shall not be entitled to delay or withhold payment or claim any set off against any payment due hereunder in respect of any claim or complaint, which the customer may have for any reason whatsoever. Any payments made by the customer to Netcomm may be applied by Netcomm as it deems fit.
3.6 Netcomm reserves the right to use information provided by the customer to make necessary credit status enquiries. Subject to credit status Netcomm may require a non-interest bearing deposit or pre-payment.
3.7 In the event of any action taken by Netcomm in relation to any charges due from the customer to Netcomm whatsoever, the customer shall reimburse and indemnify Netcomm, with and in respect of all expenses relative thereto, including all legal charges and professional fess on a full indemnity basis.
3.8 The actual Usage Charges applicable to each customer shall be determined by the option agreed at the time this Agreement is entered into, subject to clause 3.1.
3.9 Usage Charges shall be invoiced monthly in arrears or Usage Charges shall be pre-paid by way of deposit. Usage Charges may relate back to months prior to the previous month.
Obligations
4.1 Netcomm will provide the Service Equipment, arrange Carrier Pre-Selection, programme the Customer Equipment, or make other arrangements necessary to enable Service to be provided.
4.2 The customer undertakes:-
(a) To use the Service and or the Service Equipment in accordance with the reasonable instructions of Netcomm or its principals;
(b) To enable caller line identification on the customer’s line;
(c) Not to, in any way whatsoever, modify or disconnect the Service Equipment;
(d) Not to, in any way whatsoever, cause calls to be made which are not routed over the Network, in respect of the Number, save in respect of calls to the exempt numbers, notified to the customer from time to time;
(e) To protect the Service Equipment from any interference and to keep it safe;
(f) Not to use the Service in any improper or unlawful manner or in any manner which may cause offence;
(g) To allow Netcomm or its duly appointed agents access to the customer’s premises for the purposes of installation, programming and maintenance, or for any other reason whatsoever;
(h) Upon termination to remove the Service Equipment, and to return it in good condition to Netcomm;
(i) To ensure that the Customer Equipment is in good working order and is maintained by a competent maintainer or service provider approved by Netcomm
(j) To use only BABT approved telephone equipment, all equipment must comply with all relevant legislation relating to its use from time to time;
(k) To pay for all Service provided by Netcomm within the time limits and in the manner set out herein and to be responsible for the usage of the Service, whether the use of the Service has been authorised by the customer or not;
(l) That in the event that the Service Equipment becomes damaged by the customer, or by any person on the customer’s premises (save for employees and agents of Netcomm ), or becomes damaged due to the use of unapproved equipment, to pay Netcomm for any remedial work undertaken at such rate as is reasonable in all the circumstances;
(m) To inform Netcomm immediately in writing of any changes in personal details of the customer including change of address, in accordance with clause 9.9;
(n) To provide appropriate space and any necessary electricity supply for the power of the Service Equipment. The customer will not charge Netcomm for the space or the electricity consumed by the Service Equipment;
(o) Not to in any way whatsoever modify the programming of the Customer Equipment, where Customer Equipment has been programmed with any Netcomm or other access codes;
(p) Not to in any whatsoever, cause calls in respect of the Number to be made, which are not routed over the Network, whether by the use of an autodialler programmed to route calls over a different network or by the use of a manual inputted code, or by any other method whatsoever (save in respect of calls to the exempt numbers, notified to the customer from time to time);
(q) In the case of payment not being made by Direct Debit within 14 days of invoice date, to pay the increased charges in accordance with clause 3.2 above.
Faults
5.1 Netcomm will use reasonable endeavours to repair and maintain the Service Equipment.
5.2 If a fault is caused by the customer’s own equipment, by breach of this Agreement by the customer, or by the customer’s negligence, Netcomm may recover all reasonable costs incurred from the customer.
Suspension of Service
6.1 Netcomm shall be entitled to suspend Service in order to maintain or improve its Network or if obliged to do so by virtue of any direction or request from any Government Department, Emergency Service, Regulatory or Administrative Authority, or by its principals, or for any other reason whatsoever.
6.2 Netcomm will use reasonable endeavours to give the customer notice of such suspension as reasonably practicable.
6.3 Netcomm shall be entitled to suspend any part of or all of the Service without notice in the event that any payments are not made within 14 days of invoice date, or are not made by Direct Debit. Such suspension will not affect the customer’s obligation to pay for the Service during the period of suspension or thereafter, and will not affect Netcomm’s rights to charge a termination fee.
Liability
7.1 Netcomm shall not be liable for any costs, or consequential losses or consequential costs relating to telephone calls or any malicious acts resulting from these telephone calls made in a malicious or otherwise manner, made through the telephone system either from within the Customer's premises or by a third party obtaining access to the Customer's system. For the avoidance of doubt, the security of the Customer's telephone system is the sole responsibility of the Customer notwithstanding any work carried out on the system by Netcomm employees or subcontractors.
7.2 Neither party’s liability in respect of death or personal injury caused by or arising from that party’s negligence is affected by anything in this Agreement.
7.3 Unless warranties, representations, agreements, terms or conditions, either express or implied, including as to merchantability and fitness for purpose, are expressly set out in this Agreement, then such warranties etc are expressly excluded.
7.4 In particular, no Warranties, representations, agreements, terms or conditions, either express or implied, are given by Netcomm as to the quality of Service provided, which is determined by matters, within or outside the control of Netcomm.
Termination
8.1 This Agreement will remain in force – (a) for a minimum Supply Period of 18 months from the start date that supply of services from Netcomm commenced and will continue for a further 18 months from each anniversary of the start date, i.e. a rolling 18 months contract..
The agreement may be terminated, by the customer giving to Netcomm not less than three months written notice, to expire on any anniversary of the start of the Supply Period, or (b) until the customer has committed a material breach of this Agreement (including but not limited to non payment of any of the invoices by Direct Debit within 14 days of the invoice being raised, and non compliance with this Agreement due to ceasing to be responsible for the Number and when closing, or moving premises of, the business) or (c) the customer has a Receiver, Administrative Receiver, Liquidator or Supervisor of a Voluntary Arrangement appointed over it, or over any part of its undertaking or assets or a resolution is passed for its Winding Up, or if an Administration Order is made, or it enters into a Voluntary Arrangement with its Creditors, or it ceases or threatens to cease to carry on business, or (d) until in the event that the average of Usage Charges, appertaining to the relevant discount tariff referred to overleaf, is increased in any one calendar year by more than a cumulative total of 10% over the increase of the Retail Price Index, and the Customer has given notice to terminate within 14 days of the date of the notice of variation provided for at clause 3.1.
8.2 Netcomm may suspend Service where the customer has failed to pay any amount due or it reasonably believes that the customer will fail to pay any amount due or to become due and any such suspension will be without prejudice to the right to terminate.
8.3 In the event of the Agreement being terminated early by the customer, written notification by registered post needs to be sent to Netcomm,c/o Regency House,2 Wood Street,Bath,BA1 2JQ.
Following such notification and in pursuant to clause 8.1,(a) (b) or 8.1 (c) above then the customer shall pay Netcomm a termination fee in the sum equal to the following:
8.3(a) An administration fee of £100 per line, plus the total amount that would have been payable in respect of line rental or other selected services for the remaining period of the Supply Period, had the Supply Period not been terminated early because of the customer’s early termination or breach.
8.3(b) At the sole discretion of Netcomm an early settlement charge may be proposed which will be the equivalent of three months total billing which for the avoidance of doubt is the monthly average of the preceding 3 months total billing with Netcomm.
The customer agrees that the termination fee, as calculated herein, represents a fair and reasonable estimate of the losses, costs and expenses which Netcomm would suffer in the event of the Agreement being terminated pursuant to 8.1 (a) (b) (c) and 8.3.
General
9.1 The customer may not assign or transfer this Agreement or any rights hereunder to any third party, without the prior written consent of Netcomm. Netcomm may assign or transfer this Agreement or any rights hereunder.
9.2 Neither party shall be liable for breach of its obligations under this Agreement to the extent that such breach is caused by flood, fire, accident, explosion, strike, war, embargo, Government restriction, Act of God, inability to secure materials, industrial dispute or any other cause beyond the parties’ reasonable control including in particular acts or omissions of other providers of telecommunication services.
9.3 The remaining parts of this Agreement shall remain in full force in the event that any part of this Agreement shall be invalid, illegal or unenforceable, as if the unenforceable part had been omitted from the original Agreement.
9.4 All the terms of this Agreement are set out herein. Neither party has relied upon any representations, assurances or other agreements unless set out herein.
9.5 Netcomm may change the terms and conditions of this Agreement upon giving 10 days notice.
9.6 Netcomm may advise the customer that the future changes made under clause 3.1 and/or clause 9.5 will be advised on a website upon giving 10 days notice, such notice to include the address of that website.
9.7 No waiver by either party shall constitute any variation to this Agreement.
9.8 Singular words shall be construed as including words of the plural and vice versa.
9.9 Any notices given by the customer under this Agreement shall be made in writing and sent by registered post, email or fax. In either event, the address for service shall be the address given above for each party, unless changed; in which case, notice of change shall be given in accordance with the terms of this clause.
9.10 This Agreement shall be governed by and interpreted in accordance with the Laws of England and Wales.