general Terms and condition of Sale

LIMITATION OF LIABILITY – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Subject to clause 11.3, the Supplier will not be liable in any way:
3. for any loss or damage which is caused to the Customer’s own equipment arising as a result of its use in connection with the Services and the Supplier provides no guarantee or assurance that any such equipment will be suitable for use in connection with the Services;
4. to provide any remedies, damages, credits, compensation or cover in respect of any Losses the Customer may suffer or incur over and above any amounts or remedies that the Supplier is able to recover from the applicable third-party manufacturer of the Equipment, Leasing Company or third party supplier of the Services;
5. for any Losses suffered or incurred by the Customer in connection with any Equipment provided by a Leasing Company;
6. for any Losses suffered or incurred by the Customer which are caused by a third-party supplier where the Customer would be able to recover those Losses (or a reasonable proportion thereof) directly from such third-party supplier;
7. for any adverse effects on the Services and/or Losses suffered or incurred by the Customer which are caused by or in connection with the Customer’s receipt and/or use of the Services other than in such manner as agreed by the Supplier and/ or any interference by the Customer or any third party which is not in accordance with the standard use of the Equipment or Services or following the Supplier’s or relevant manufacturer’s written instructions;
8. if the Customer is not able to use the Services because the Customer equipment (for example, any PC, modem, network interface card, printer, switch, local area network or other equipment) does not work properly, is not compatible with the Services, does not conform to the relevant standard, does not meet minimum specifications required in connection with the Services or because of faults in any third party networks over which the Supplier has no responsibility; or
9. for any temporary unavailability of Services due to planned maintenance, emergency maintenance or loss of use outside the reasonable control of the Supplier.
10. Nothing in the Contract limits or excludes any liability which cannot legally be limited, including liability for:

death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
any other matter where it is not possible to limit or exclude liability.
1. Subject to clause 11.3, the Supplier shall not under any circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to reputation and goodwill; and
indirect, special or consequential Loss,

that arises under or in connection with the Contract.

Subject to clause 11.3, the Supplier's total liability to the Customer in respect of all Losses not excluded under clause 11.4 and which arise under or in connection with the Contract within any Contract Year, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Cap.
In clause 11.5, the following words and phrases have the following meanings:

Cap: means one hundred per cent (100%) of the Total Charges in the Contract Year in which the relevant Losses arose;
Contract Year: means a 12-month period commencing with the Commencement Date or any anniversary of it; and
Total Charges: means all sums paid or payable by the Customer to the Supplier under the Contract in respect of Equipment and Services actually supplied by the Supplier, whether or not invoiced to the Customer.
1. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
2. This clause 11 shall survive termination of the Contract.

TERM AND TERMINATION – special attention is drawn to this clause
1. The Contract shall come into effect on the Commencement Date and continue (unless terminated earlier in accordance with its terms) for the Initial Contract Period.
2. Subject to clause 12.3, the Contract shall automatically extend for a Renewal Contract Period at the end of the Initial Contract Period and at the end of each Renewal Contact Period, provided always that either party may give written notice not later than 1 month before the end of the Initial Contract Period or relevant Renewal Contract Period (as the case may be), to terminate the Contract at the end of the Initial Contract Period or the relevant Renewal Contract Period.
3. Where the Customer is a Microenterprise, Small Enterprise Customer or Not-For-Profit Customer (each as defined in Ofcom’s General Conditions of Entitlement) the Contract shall not automatically extend into Renewal Contract Periods without the Customer’s prior written consent.
4. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
1. Without affecting any other right or remedy available to it, the Supplier may terminate or suspend the Contract (or the provision of a particular Service) with immediate effect by giving written notice to the Customer if:

the Customer fails to pay any amount due under the Contract on the due date for payment;
the customer repeatedly breaches its obligations under the Contract;
where applicable, the Customer breaches the Equipment Lease;
required due to a regulatory or statutory change which affects the Supplier’s performance of its obligations under the Contract;
if the Supplier (or any relevant third party supplier) is 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 Services;
if the Customer’s use of the Services has or may damage or disrupt the proper functioning of the infrastructure and/ or equipment used to provide Services to the Supplier’s (or its third party providers’) other Customers;
the Supplier has reason to believe that the Customer has provided the Supplier with false, inaccurate or misleading information either for the purpose of obtaining the Services or at any time during the provision of the Services;
the Supplier or its agents or third party suppliers need to carry out any maintenance, repairs or improvements to any part of the Services;
the Supplier believes (acting reasonably) that the Customer or another person associated with the Customer has committed, or may be committing, any fraud against the Supplier or against any other person or organisation by using the Services;
the Customer or anyone the Customer authorises to deal with the Supplier on the Customer’s behalf acts in a way towards the Supplier’s staff, third party suppliers or agents which the third party suppliers reasonably considers to be inappropriate;
the Customer is in breach of any applicable Acceptable Use Policy; or
there is a change of Control of the Customer.
1. If the Supplier suspends the Services due to a breach of the Contract by the Customer or in accordance with its rights under clause 12.5 then without affecting any other right or remedy available to it, the Supplier may charge a reconnection fee to the Customer in addition to any outstanding amounts on the Customer’s account before any suspension of Service is lifted. Should the reconnection require a service call out the Supplier reserves the right to levy an additional charge to the Customer.
2. Without affecting any other right or remedy available to it, the Supplier may also suspend the supply of Services or all further deliveries of Equipment under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.5(b) to clause 12.5(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

CONSEQUENCES OF TERMINATION – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. On termination of the Contract:

the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Equipment supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
the Customer shall return all of the Supplier Materials and (where applicable) any Equipment which has not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
1. Save where the Customer has validly terminated the Contract in accordance with clause 12.2 or clause 12.4, upon termination of the Contract for any other reason, the Customer shall pay to the Supplier upon demand, the Termination Fees.
2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract (excluding payment obligations) if such delay or failure result from events, circumstances or causes beyond its reasonable control, which shall include but is not limited to acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical or biological contamination, or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party), non-performance by suppliers or subcontractors or other third parties (other than by companies in the same group as the party seeking to rely on this clause) and interruption or failure of utility service (a Force Majeure Event). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 16 weeks, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.

GENERAL
1. Assignment and other dealings

The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without notice to the Customer.
The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
1. Notices.

Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email to the correct address provided by the other party (as may be updated from time to time by notice in writing).

Any notice shall be deemed to have been received:

if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
if sent by email, provided that the sender does not recall the message nor receive notification of non-delivery, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause iii, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. If the sender receives notification of delayed delivery (an “out of office”) then delivery shall be deemed to have occurred at the time and on the date stated in the notice.

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
1. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 15.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
2. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
3. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
4. Entire agreement.

The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
Nothing in this clause shall limit or exclude any liability for fraud.
1. Third party rights.

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
1. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives). Notwithstanding the foregoing, the Supplier may at its discretion amend these Conditions prior to the commencement of a Renewal Contract Period. Where the Supplier amends these Conditions in accordance with this clause 15.8 it shall notify the Customer of such amendments and, in the absence of the Customer serving notice to terminate the Contract in accordance with clause 12.2 the Customer shall be deemed to accept such amendments.
2. Dispute Resolution.

both Parties shall use reasonable endeavours to resolve any dispute under this Contract. If any dispute arises in connection with this Contract, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.
The payment of the Service Charges, the price of the Equipment and the Termination Fees shall not be included in the dispute resolution process set out in clause 15.9(a), and nothing in the Contract shall prevent the Supplier issuing proceedings against the Customer for non-payment of the Service Charges, the price of the Equipment or the Termination Fees, howsoever incurred.
1. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
2. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

INTERPRETATION
1. The following definitions and rules of interpretation apply in these Conditions.

DEFINITIONS:

Acceptable Use Policy

means any acceptable use policy relating to the Customer’s receipt and use of the Services, at notified to the Customer from time to time.

Airtime Agreement

means, where the Supplier is providing the Mobile Services, the agreement entered into between the Customer and the MNO or the Supplier.

Business Day

a day other than a Saturday, Sunday or public holiday in England, when UK clearing banks in the city of London are open for general business.

Commencement Date

has the meaning given in clause 1.6

Commercial Details

the commercial specifics of the arrangement between the Customer and the Supplier as appended to the Conditions.

these terms and conditions as amended from time to time in accordance with clause 15.8.

Connectivity Services

means the connectivity services provided by the Supplier to the Customer as set out in the Proposal, where applicable.

the contract between the Supplier and the Customer for the supply of Equipment and/or Services in accordance with these Conditions, the Commercial Details, and the Schedules.

has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

the person or firm who purchases the Equipment and/or Services from the Supplier as detailed in the Order.

the Equipment (or any part of it) set out in the Order or (where applicable) in the Equipment Lease.

Equipment Lease

where applicable the lease/hire agreement entered into between the Customer and the Leasing Company in respect of the Equipment

Equipment Specification

any specification for the Equipment, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.

Force Majeure Event

has the meaning given to it in clause 14.

Initial Contract Period

the minimum term of the Contract as set out in the Commercial Details, which shall commence on the Start Date.

Customer Premises

has the meaning given in clause 3.1.

Intellectual Property Rights

patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

where applicable, the party named as such in the Commercial Details

means actions, awards, charges, claims, compensation, costs, damages, demands, expenses, interest, fees, fines, liabilities, losses, penalties, proceedings and settlements, and shall be construed accordingly.

Merchant Services

the merchant services set out in the Service Specification or Proposal where expressly selected in the Commercial Details

Mobile Services

means the mobile services provided by the Supplier to the Customer as set out in the Proposal, where applicable.

means, in relation to the Mobile Services, the mobile network operator notified to the Customer in writing that provides network services and SIM connections to the Customer.

MNO Charges

means the charges for the mobile services that are payable to MNO under the Airtime Agreement.

the computer network owned or operated by a third party and used as part of the Connectivity Services.

the Customer's order for the supply of Equipment and/or Services, as set out the order document provided by the Supplier and incorporating the information set out in the Proposal.

the Supplier’s written proposal for the supply of the Services and Equipment.

Renewal Contract Period

the period specified in the Proposal or, where no such period is specified, a period of 12 months.

RPI

the Retail Prices Index.

Service Demarcation Point

the defined socket, equipment port or device to which the
Supplier (or its subcontractor) delivers and supports the Service.

Service Charges

the charges for the Services as set out in clause 7.1.

the services, supplied by the Supplier to the Customer as set out in the Service Specification and which may include the Connectivity Services, the Merchant Services, the Mobile Services and/ or the Unified Communications Cloud Telephony Services.

Service Specification

the description or specification for the Services as detailed on the Supplier’s website from time to time and any additional description provided in writing in the Proposal by the Supplier to the Customer.

means a Subscriber Identification Module provided by the MNO in connection with the Mobile Services.

Spend Forecast

means the minimum spend commitment by the Customer over the Initial Contract Period as set out in the Order.

Start Date

the date upon which the supply of the Services commences following installation where applicable.

means a type of investment the Supplier makes in the Customer as detailed in the Airtime Agreement.

Subsidy Value

means the value of the Subsidy in GBP Sterling that the Supplier may make available to the Customer.

Supplier Materials

has the meaning given in clause 6.1(l).

Technology Fund

means credits applied to the Customer’s account to offset against the cost of certain Equipment or the Services at the Supplier’s published prices provided from time to time as detailed in the Proposal and Schedule 5.

Termination Fees

means the fees payable by the Customer as set out in Schedule 2 for early termination of the Contract.

Unified Communications Cloud Telephony Services

means the unified communications cloud telephony services provided by the Supplier to the Customer as set out in the Proposal, where applicable.

Interpretation:

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes email but not fax.
The provisions set out in the Schedules shall prevail and take precedence over any contradictory or conflicting terms set out in clauses 1 to 15 (inclusive) of the Conditions.

general Terms and condition of Sale

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