Terms & Conditions
1. CONTRACT DEFINITION
Unless otherwise stated all terms in this Contract are as defined below:
Act means the Communications Act 2003;
Additional Services means any Services requested by the Customer after the commencement date of this Contract which VCOM agrees to provide;
Artificial Inflation of Traffic means a situation where the flow of calls to any particular Revenue Share Service is as a result of any activity by or on behalf of the Customer which is disproportionate to the flow of calls which would be expected from good faith commercial practice and usage of the VCOM (Link) Network;
Associated Company means any subsidiary or holding company of VCOM or other associated company as defined by Sections 736 and 736A of the Companies Act 1985;
Authorised Person means an employee or subcontractor of VCOM;
Broadband Circuit means a connection between a Site and the underlying network, which carries data in both directions using a broadband protocol;
Broadband Customer Equipment means equipment (including any software) which is used by a Customer to connect to the broadband services offered by VCOM from time to time;
Broadband Services means any broadband services provided or procured by VCOM from time to time; BT means British Telecommunications plc or any relevant subsidiary of such company;
Customer means the person, company, body corporate or other entity or association whatsoever or howsoever whose Contract is accepted by VCOM and for whom VCOM has opened a VCOM Link Account;
Contract means the contract as detailed on the Customer Contract which is subject to and governed by these terms and conditions made between VCOM and the Customer and taking effect upon acceptance by VCOM of the Contract as evidenced by the opening of a VCOM Link Account;
Customer Contract means the front page of this document detailing the commercial terms agreed between VCOM and the Customer;
Discount means the amount at which any of the Services are provided by VCOM to the Customer during the Contract at less than the full rate. The amount of such discount having been supplied in writing to the Customer and/or inserted on the Customer Contract prior to any of the Services commencing as Discount Services;
Discount Services means any Services provided by VCOM to the Customer from time to time and not charged for by VCOM from time to time or charged at a discount;
Extended Term as more particularly defined in Condition 9.2;
Line means a connection to a wholesale carrier’s network;
Line Rental Service means the services provided by VCOM in procuring Lines for the Customer;
Least Cost Routing Software means software installed on a telephone system which automatically enables the routing of calls via different telephone operators;
Minimum Term means the minimum duration of the Contract, which unless otherwise expressly stated on the Customer Contract shall be 12 months from the date the Customer first starts to receive the Services;
Revenue Share Service means a service (including but not limited to 09 and 08 telephone number) where VCOM pays to the Customer an element of the conveyance charges which VCOM receives for calls to such service;
Services means supply or re-routing of the Customers telecommunications including without limitation all calls, voice, fax, line rentals, non-geographic numbers, data traffic, ADSL and broadband over the VCOM (Link) Network and Services shall be deemed to include Discount Services where appropriate and any other services provided by VCOM to the Customer from time to time;
Services Literature means VCOM's literature specific to the Services and other associated services existing from time to time;
Site means a location at which VCOM agrees to provide any Service;
User means any individual or company permitted by the Customer to use the Services;
VCOM means Vandercom Voice and Data Solutions Ltd (registered in England and Wales with no; 7108491) whose registered office is at 505 Pinner Road, Harrow, Middlesex HA2 6EH and which expression shall, where the context so requires, include its successors and assigns and any Associated Company thereof;
VCOM Access Equipment means call routing apparatus supplied or procured by VCOM (including without limitation any BT equipment);
VCOM Link Account means the account opened by VCOM in the name of the Customer; and
VCOM (Link) Network means the telecommunications networks of VCOM’s chosen suppliers from time to time.
2. THE SERVICES
2.1 (a) The Customer shall complete, sign and return to VCOM the Contract prior to VCOM agreeing to provide the Services. Where the Customer has requested the Services by telephone the continued use of the Services will amount to their acceptance of the Contract.
(b) The Customer may only place an order for Services upon terminating their contract with their existing provider.
(c) If the Customer requests any Additional Services the Customer acknowledges that such Additional Services shall, unless otherwise expressly stated, be provided by VCOM upon and subject to the Contract and the definition of Services shall be deemed to include any such Additional Services.
(d) The Services Literature and any other instructions regarding the use of the Services and the VCOM (Link) Network as may be notified to the Customer by VCOM from time to time shall be complied with promptly and such literature and instructions shall be deemed to form part of the Contract.
(e) The Services and the VCOM (Link) Network will only be used in accordance with the Contract.
(f) Only the Customer and Users shall use the Services and the VCOM (Link) Network and no other person shall be suffered or permitted to use the same.
(g) VCOM shall be entitled to alter any access or authorisation number or method of accessing the Services from time to time and may reprogram the Customer’s equipment as a result.
(h) VCOM shall use all the reasonable care and skill of a competent telecommunications provider to provide the Customer with the Services throughout the term of the Contract.
(i) VCOM shall be at liberty, where necessary, to improve, update or upgrade the Services or alter the provision of the Services without any notice to the Customer provided such alteration does not result in a material adverse change to such Services save that VCOM may change the conditions or service levels relating to the Service (which may have a materially adverse change to such Services) in order to reflect contractual changes imposed upon VCOM by its suppliers (including without limitation BT) or any decision, request by or change in the regulatory regime by the relevant regulatory authorities by giving at least 30 days written notice to the Customer before the change takes effect.
2.2 The Customer undertakes to VCOM to ensure that the Services and the VCOM (Link) Network are not used:-
(a) for the transmission of any material which is intended to be a hoax call to emergency services or is of a defamatory, offensive, abusive, obscene or menacing character; or
(b) otherwise in a manner which constitutes a violation or infringement of the rights of any other party; or (c)otherwise than for the purpose of a telecommunications system; or
(d) in a way that does not comply with the terms of any legislation or any codes of practice, regulations or any licence applicable to the Customer or that is in any way unlawful or fraudulent or to the knowledge of the Customer has any unlawful or fraudulent purpose or effect; or
(e) in connection with the carrying out of fraud or criminal offence against any other public telecommunications operator; or
(f) in any way that constitutes Artificial Inflation of Traffic; or
(g) in a way that does not comply with any instructions given by VCOM from time to time; or
(h) in a way that in VCOM’s reasonable opinion could materially affect the quality of any telecommunications service or other service provided by VCOM or any third party; or
(i) to make nuisance calls or “spam”; or
(j) to threaten, harass, stalk, abuse, disrupt or otherwise violate or infringe the rights (including but not limited to copyright, rights of privacy and publicity) of others; or
(k) to obtain access, through whatever means, to notified restricted areas of the underlying network; or
(l) 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 other customers of VCOM or of its suppliers; or
(m) in a way which (in the reasonable opinion of VCOM) brings the name of VCOM or its supplier into disrepute, or which places VCOM in breach of the Act.
2.3 The Customer agrees that at all times during the term of the Contract it shall:
(a) provide access to and a safe working environment at its Sites for any Authorised Persons during the Customers normal working hours and allow the removal, installation and maintenance of VCOM Access Equipment;
(b) keep its telecommunications equipment including without limitation the VCOM Access Equipment in good working order and ensure that the equipment complies with all applicable standards and approvals so as to enable VCOM to provide the Services;
(c) only use and connect those telephones, ducting, cables, sockets and other equipment to the VCOM (Link) Network that have been approved in advance by VCOM in writing and comply with all the relevant legislation relating to the use of such equipment including the relevant standards required under the Act;
(d) provide all reasonable assistance required by VCOM to enable it to provide the Services;
(e) inform VCOM by one month’s prior notice in writing of any premises relocation or change of telephone number(s) on which the Services are registered; and
(f) indemnify VCOM fully against all losses, liabilities, costs (including without limitation legal costs) and expenses which VCOM may suffer or incur as a result of any breach of the Customers obligations under the Contract including without limitation for fraud or misuse of the Services or the VCOM (Link) Network or the Artificial Inflation of Traffic.
3. EXCLUSIVITY, MINIMUM TERM AND ANY EXTENDED TERM
3.1 The Customer undertakes to VCOM that for the duration of the Minimum Term and for the duration of any Extended Term it will route all its inbound, non-geographic and outbound calls (including without limitation all its voice, fax and data traffic) via VCOM on an exclusive basis. For the avoidance of doubt the Customer acknowledges and accepts that during the Minimum Term and for the duration of any Extended Term it shall not use any services offered by a third party which are competitive with or substantially similar to the Services. In the event of any breach by the Customer of Conditions 3.2 to 3.4 (inclusive) shall apply.
3.2 In the event of the Customer wishing to terminate the Contract at any time prior either to the expiration of the Minimum Term or any Extended Term and VCOM (in its sole discretion) electing to accept such notice or VCOM terminating this Contract during the Minimum Term or any Extended Term pursuant to Condition 9.3 the Customer shall pay in full an amount equal to the Discount for the period any of the Services have been supplied as Discount Services during the Minimum Term or any Extended Term.
3.3 In the event of the Customer: (a)terminating the Contract; or
(b) attempting to terminate the Contract; or
(c) obtaining any services from a third party which are competitive with or substantially similar to the Services; or
(d) receiving notice from VCOM terminating the Contract pursuant to Condition 9.3 during the Minimum Term or any Extended Term, then the Customer accepts that VCOM shall be entitled to invoice the Customer a cancellation charge which is equal to 30% of the total charges which would have been payable during each month outstanding during the remainder of the Minimum Term or any Extended Term (as relevant) (Cancellation Charge). For the purposes of this Condition 3.3 the charges shall be calculated using:
(a) the average of the last three monthly amounts invoiced by VCOM to the Customer prior to the Cancellation Charge becoming payable; or
(b) the actual amount payable by the Customer for the Services during the last full calendar month immediately prior to the said breach (whichever is the higher); or
(c) where no invoice has been submitted to the Customer prior to the Cancellation Charge becoming payable the amount of the estimated spend (divided by 12 where such estimated spend is based upon a year rather than a month).
The amount payable pursuant to this Condition 3.3 is without prejudice to the amounts detailed in Conditions 3.2 and 3.3 which are payable in addition.
3.4 If a Line or the provision of a Line Rental Service is cancelled by the Customer during the Minimum Term or any Extended Term then the balance of the rental which would have been paid for the remaining period of the Minimum Term or any Extended Term (as relevant) becomes payable immediately. Where VCOM terminates this Contract pursuant to Condition 9.3 such termination shall for the purposes of this Condition 3.4 be treated as cancellation by the Customer of the Line Rental Service.
4. SERVICE SPECIFIC CONDITIONS AND ACKNOWLEDGEMENTS
4.1 IP Telephony Services
(a) VCOM provides a range of IP telephony services (IP Telephony Services) which, together with VCOM’s traditional voice services, are delivered from an integrated switching, provisioning and billing platform but the calls are carried by Internet Protocol rather than the traditional Public Switched Telephone Network (PSTN);
(b) the IP Telephony Services support 999/112 public emergency call services and such calls will be routed to the national emergency call handling agents. However these services do not operate in the same way as PSTN fixed line 999/112 public emergency call services and connection to such services may not be possible in the event of a service outage caused by loss of Customer connectivity to the internet for whatever reason. In such circumstances the Customer should use their PSTN line to make the emergency call. Furthermore it may on occasions not be possible for emergency services personnel to identify the Customer’s location and telephone number so this information should be stated promptly and clearly by the Customer when making such a call.
4.2 Broadband Services
(a)If in VCOM’s opinion any Broadband Customer Equipment fails to comply at any time with the requirements and standards set out by VCOM or is causing disruption to any Service or to other Customers then VCOM may in its absolute discretion disconnect the broadband circuit relating to that Broadband Customer Equipment or take such other steps as it judges appropriate to resolve the disruption. In such case VCOM will inform the Customer.
(b)The Customer must not use a Broadband Service:
(i) to knowingly make available or upload files that contain software or other material, data or information not owned by or licensed to the Customer; or
(ii) to knowingly make available or upload files that contain a virus or corrupt data; or
(iii) to falsify the true ownership of software or other material or information contained in a file that the Customer makes available via the Broadband Service; or
(iv) to publish, post, distribute, disseminate, send, knowingly receive, upload, download, use or re-use material which is abusive, indecent, defamatory, offensive, obscene or menacing, or in breach of copyright, privacy or any other rights; or
(v) to deliberately abuse any part of a VCOM Service; or
(vi) to post or send the same or similar messages in multiple use net or news groups; or
(vii) to post or send off-topic items to a use net or news group; or
(viii) to send or provide unsolicited commercial messages or communications in any form; or
(ix) to falsify user information; or
(x) to act in such a way which threatens the integrity or security of any computer system; or
(xi) with a view to avoiding incurring or paying charges for such usage; or
(xii) with a view to degrading the use of services by third parties; or
(xiii) to violate general standards of internet conduct and usage such as denial of service attacks, web-page defacement, and port and network scanning; or
(xiv) to disclose passwords; or
(xv) to violate any restrictions on the size of e-mails; or
(xvi) to forge addresses; or
(xvii) to share network connections in a manner enabling third parties to access and use such connections; or
(xviii) other than in accordance with the acceptable use policies of any connected networks.
(c) Use of the internet (which is separate from the Broadband Service) is at the Customer’s own risk and subject to any applicable laws. VCOM will not be liable for any goods, services, information, software, or other materials that the Customer may obtain when using the internet or newsgroups, nor for any consequences resulting from viewing, downloading or any interaction whatsoever with the internet or with newsgroups.
4.3 Domain Names
(a) The Customer may, from time to time, request that VCOM submits to the relevant domain name registry on the Customer’s behalf applications for registration of domain names selected by the Customer. Where VCOM elects to accept such a request the Company warrants and represents that:
(i) none of the requested domain names or the Customer’s use of any domain name will interfere with the rights of any third party, infringe upon any service mark, trade mark or other personal, moral or property right; and
(ii) all statements on any domain name application will be true and correct.
(b) VCOM reserves the right to require the Customer to select a replacement domain name if, in VCOM’s reasonable opinion, there are reasonable grounds to believe that the current choice of domain name is, or is likely to be, in breach of the provisions of Condition 4.3(a). The Customer shall, provided it is satisfied with such opinion, acting reasonably, select such a replacement or where such domain name has previously been registered to a third party the Customer shall be obliged to select a replacement. The provisions of this Condition 4.3(b) shall apply to any such replacement domain name.
(c) The registration of the domain name and its ongoing use by the Customer is subject to the relevant naming authority’s terms and conditions of use. The Customer undertakes to comply with such terms and conditions. The Customer hereby irrevocably waives any claims it may have against VCOM in respect of any decision of a naming authority to refuse to register a domain name and, without limitation, the Customer acknowledges and agrees that any administration or other charge paid by the Customer in respect of the registration of the domain name is non-refundable in any event.
(d) In the event VCOM agrees to provide the Customer with an IP Address the Customer will have a non- transferable licence to use any such IP Address allocated by VCOM to the Customer for the duration of this Agreement. If this Agreement is terminated for whatever reason, the Customer’s licence to use the IP Address shall automatically terminate.
4.4 Number Portability
The Customer confirms it is aware of any requirements that may apply in relation to the portability of any numbers and that it does not own any number nor has any right to sell or to agree to transfer any number provided to it.
4.5 Intellectual Property Rights
Nothing in this Contract entitles the Customer to use and the Customer will not use the logo, trademark or any VCOM or BT intellectual property of BT or any of BT’s trading divisions or other BT Associated Company. In addition the Customer will not use, or permit any use of, BT’s name in connection with any VCOM Service. Any breach of this Condition 4.5 will be a material breach of this Contract for the purposes of Condition 9.3(a).
4.6 Line Rental Service
Before any Customer can obtain the Line Rental Service he needs to terminate his contact with BT or his current service provider covering access to the BT network as a consequence of entering into a new contract.
5.1 The Customer shall prepare the Site in accordance with VCOM’s reasonable conditions. 5.2 The Customer shall provide without charge or cost to VCOM appropriate equipment space, ducting, environment and continuous stable electrical power to install and maintain the VCOM Access Equipment at its Site and to enable VCOM to provide the Services.
5.3 The Customer agrees to restore the condition of the Site including any redecoration that may be required after installation is completed.
5.4 Prior to installation of the VCOM Access Equipment the Customer shall obtain all necessary consents including without limitation, consents for any necessary alterations to buildings, permission to cross other people’s land or permission to put VCOM Access Equipment on their property.
5.5 Title to any VCOM Access Equipment shall remain with VCOM or it provides (as relevant) and whilst the VCOM Access Equipment is on the Customers premises, the Customer shall ensure that it is kept safe and secure and is not interfered with by any person other than an Authorised Person.
5.6 Upon termination of the Contract, the Customer will at VCOM's option, either ensure that VCOM is allowed prompt access to all relevant premises to remove the VCOM Access Equipment or procure that the VCOM Access Equipment is returned to VCOM, in either case within 14 days of VCOM's request.
5.7 If the Customer fails to allow access for the removal of VCOM Access Equipment (as required pursuant to Condition 9.6(b)) the Customer will pay all of VCOM's access costs in recovering the VCOM Access Equipment.
5.8 If the Customer prevents VCOM from recovering the VCOM Access Equipment or the VCOM Access Equipment is, in the reasonable opinion of VCOM, damaged the Customer shall pay to VCOM on demand a sum equal to the market value of the VCOM Access Equipment at such time.
5.9 Where the Customer has Least Cost Routing Software available for use at its premises, VCOM will, if necessary, and at its sole discretion, reprogram it in order to provide the Services.
5.10 Where the Customer does not have Least Cost Routing Software available for use at its premises, VCOM will, if necessary, and at its sole discretion supply, install and connect the Customer to VCOM Access Equipment in order to provide the Services.
6. CHARGES AND PAYMENTS FOR THE SERVICES
6.1 The Customer shall pay to VCOM its charges for the Services as detailed in the Customer Contract or as otherwise notified to the Customer by VCOM from time to time.
6.2 All sums due to VCOM under the Contract shall become due on the date of the relevant invoice and are payable within 14 days (including week-ends and bank holidays) of the date of the relevant invoice.
6.3 In the event of any error or omission in a VCOM invoice for any period, VCOM may issue a corrective invoice at a later date, but no later than four months after the relevant invoice date.
6.4 If the Customer fails to make any payment without prejudice to its other rights hereunder, VCOM shall have the right to require the Customer to pay all sums due on demand.
6.5 Time of payment of all sums due to VCOM under the Contract shall be of the essence.
6.6 VCOM reserves the right to amend its charges for the Services from time to time by 7 days prior written notice to the Customer. Where such increase is to take effect during the Minimum Term or any Extended Term and is not as a result of either:
(a) any price increases of VCOM’s wholesale providers from time to time; or
(b) due to any regulatory decisions, orders or otherwise
the Customer may terminate the Contract by 90 days prior written notice to VCOM and during such notice period the charges payable by the Customer will not include the price increases.
6.7 VCOM shall use its best endeavours to bring to the attention of the Customer any variation in prices prior to their implementation.
6.8 Without prejudice to VCOM's rights to treat the non-payment as a material breach of the Contract, VCOM reserves the right to charge interest on outstanding amounts from the due date until payment is received in full at a rate equal to:
(a) 4% per annum above the HSBC Bank plc base lending rate as current from time to time (where the Customer is not obtaining the Services in the course of business); or
(b) such interest rate as is prescribed from time to time by the Late Payment of Commercial Debts (Interest) Act 1998 (where the Customer is obtaining the Services in the course of business)
whether before or after judgement. Interest shall continue to accrue notwithstanding termination of the Contract for any cause whatsoever and is deemed to accrue on a day to day basis from and including the date for payment under Condition 6.1.
6.9 VCOM reserves the right to charge for administrative costs incurred by VCOM in pursuing late payers.
6.10 All sums due to VCOM under the Contract are subject to Value Added Tax (VAT), and any other applicable taxes, levies or charges which may from time to time be introduced.
6.11 The Customer shall be liable for all charges arising from use of the Services by any person utilising the Customers registered Services telephone number(s) (with or without Customers authorisation) whether fraudulently or improperly using the Services until such time as the Customer has notified VCOM of any unauthorised use of the Service.
6.12 VCOM shall invoice for the Services monthly and the charge for each call will be rounded up to the next whole legal tender.
6.13 In the event that any claim of any kind is made against VCOM relating to goods facilities or services made available as a result of a Revenue Share Service call or as a result of any act or thing which happens in consequence of the Revenue Share Service call, either by BT or any other intermediate interconnecting network or by an end user or acquirer of any such goods facilities or services or by a party suffering allegedly as a result of any such act or thing who has obtained access to such goods facilities or services by use of the Revenue Share Service number, the Customer shall indemnify and keep indemnified VCOM against all costs charges claims and liabilities howsoever deriving from any such claim.
6.14 The Customer agrees to pay VCOM for all call-out visits required from VCOM (at its then current published rates which shall be notified to the Customer in advance of any call out) where VCOM determines that (i) the problem with the Services or the VCOM (Link) Network is not the fault of VCOM or the VCOM Access Equipment or (ii) the VCOM Access Equipment has been damaged by the Customer.
7. DATA STORAGE AND USE
7.1 VCOM may collect and store data and information about the Customer and its use of the Services and provide this information to (i) BT (ii) companies affiliated with VCOM including without limitation any Associated Company and (iii) third parties in addition to BT. To the extent thought the Customer does not wish such information to be provided to third parties (other than BT) it may notify VCOM of this at any time in writing.
7.2 Details of the Customer, the Contract and the conduct of the VCOM Link Account will be registered with a licensed Credit Reference Agency. Such information may be used to help make credit decisions or, fraud prevention or the tracing of debtors.
8. VCOM's RIGHT TO SUSPEND AND ALTER THE CONTRACT
8.1 VCOM may suspend the Services to the Customer at its sole discretion including but not limited to the following:-
(a) in the interests of the quality of the Services or the VCOM (Link) Network; or
(b) if any credit limit agreed between VCOM and the Customer from time to time is exceeded; or
(c) if any term of the Contract is breached (including, without limitation, in the event of a failure to make any payment or provide any deposit required to be made or provided under the Contract); or
(d) in order to comply with an order, instruction or request of any government, emergency service organisation or other competent authority; or
(e) if fraud or attempted fraud or serious illegal misuse is suspected by VCOM (in its reasonable opinion) to have taken place or possibly be about to take place in connection with the use of the Services or the VCOM (Link) Network; or
(f) if in VCOM's reasonable opinion it suspects the Customer is offering to resell the Services to any third party.
8.2 VCOM may alter or replace this Contract from time to time upon 30 days prior notice to the Customer PROVIDED THAT if such alteration or replacement terms are materially detrimental to the Customer the Customer may terminate this Contract within 30 days of the date of VCOM’s written notice by providing VCOM with 30 days prior written notice (during which time the alteration or replacement shall not be effective).
8.3 Where VCOM alters the provisions of the Services pursuant to Condition 2.1(i) the Customer shall not be entitled to terminate the Contract pursuant to Condition 8.2.
9.1 The Contract may be terminated by either VCOM or the Customer giving at least 90 days prior notice in writing to the other (including week-ends and bank holidays) PROVIDED THAT such notice does not expire prior to the expiration of the Minimum Term or any Extended Term (as relevant).
9. 2 If neither VCOM nor the Customer provide notice to terminate in accordance with Condition 9.1 the Client and VCOM agree that the Contract shall automatically be renewed for a further fixed period equal to the Minimum Term (Extended Term). If neither VCOM nor the Customer provide notice to terminate any Extended Term in accordance with Condition 9.1 the Client and VCOM agree that the Contract shall automatically be renewed from time to time for further fixed periods equal to the Minimum Term.
9.3 VCOM may (without prejudice to its other rights) terminate the Contract forthwith by written notice to the Customer in the event that:
(a) the Customer fails to make any payment when it becomes due to VCOM or shall default in due performance or observance of any obligation under the Contract or any other contract with VCOM or an Associated Company and (in the case of remedial breach) fails to remedy the breach within a reasonable time specified by VCOM in its written notice so to do; or
(b) where the Customer (being an individual) or one or more individuals forming part of the Customer (where such Customer comprises several individuals) enters into or proposes an arrangement or composition with his creditors or commits any act of bankruptcy or if any petition or receiving order in bankruptcy is presented or made against him or he suffers any process of execution or distress upon his assets; or
(c) where the Customer (being a Company) has an interim order made, or a voluntary arrangement approved, or if any circumstances arise which entitle the court or a creditor to appoint a receiver or administrator or to present a winding-up petition or make a winding-up order or is dissolved or struck off the register of companies in respect of that Customer or the assets of the Customer or any substantial part thereof or where the Customer is unable to pay its debts as they fall due from time to time.
9.4 The expiry or termination of this Contract shall be without prejudice to any accrued rights or liability of either party prior to such expiration or termination. The terms of this Contract shall continue to bind the parties hereto to such extent and for so long as may be necessary to give effect to the rights and obligations embodied in it including without limitation Conditions 3.2, 3.3, 3.4, 4, 5.5 to 5.8 (inclusive), 6, 7, this Condition 9, 10 and 13 to 18 (inclusive).
9.5 VCOM may terminate a Broadband Circuit or the provision of a Line Rental Service to any individual Site on 28 days’ written notice to the Customer in circumstances which include but are not necessarily limited to the following:
(a) where a Site has been demolished; or
(b) where the new occupant at a Site does not wish to receive such Services.
9.6 If the Contract is terminated by either party hereto, the Customer shall:
(a) pay to VCOM all arrears of charges (including without limitation any charges payable pursuant to Conditions 3.2 to 3.4 (inclusive)) together with any interest payable under the Contract up to the date of termination;
(b) return to VCOM all equipment owned or provided by VCOM and/or allow VCOM access forthwith to the Customer’s Site for the removal of any VCOM Access Equipment;
(c) undertake and comply with the provisions of Conditions 5.6 to 5.8 (inclusive); and
(d) cease being provided the Services and have no right to use the VCOM (Link) Network and have no right to use the same and no attempt shall be made to make calls via the Services.
10. LIMITATION OF LIABILITY
10.1 The following provisions set out VCOM's entire liability (including any liability for the acts and omissions of its directors, officers, employees, agents or sub-contractors) to the Customer in respect of:
(a) any breach of its contractual obligations arising under this Contract; and
(b) any representation statement or tortious act or omission including negligence arising under or in connection with this Contract.
AND THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CONDITION 10.
10.2 Any act or omission on the part of VCOM or their directors, officers, employees, agents or sub-contractors falling within Condition 10.1 shall for the purposes of this Condition 10 be known as an Event of Default.
10.3 VCOM's liability to the Customer for fraud, fraudulent misrepresentation and/or for death or injury resulting from their own or that of their directors, officers, employees, agents or sub-contractors negligence shall not be limited.
10.4 SUBJECT TO THE PROVISIONS OF CONDITION 10.3, VCOM's ENTIRE LIABILITY IN RESPECT OF ANY EVENT OF DEFAULT SHALL BE LIMITED TO DAMAGES NOT EXCEEDING THE SUMS PAID BY THE CUSTOMER TO VCOM FOR THE SERVICES PURSUANT TO THIS AGREEMENT IN THE PRECEDING THREE MONTH PERIOD IN THE CASE OF A SINGLE EVENT OF DEFAULT AND TWICE THE SUMS PAID BY THE CUSTOMER TO VCOM FOR THE SERVICES PURSUANT TO THIS AGREEMENT IN THE PRECEDING THREE MONTH PERIOD IN THE CASE OF ALL EVENTS OF DEFAULT OR SERIES OF CONNECTED EVENTS OF DEFAULT OCCURRING IN ANY TWELVE MONTH PERIOD.
10.5 Subject to Condition 10.3, VCOM shall not be liable to the Customer in respect of any
Event of Default:
(a) for loss of profits,
(b) for loss of goodwill;
(c) for loss of contracts;
(d) for loss of opportunity;
(e) for loss of data;
(f) for loss of business;
(g) or for any similar losses or pure economic loss; or
(h) for any type of:
(ii) indirect; or
(iii) consequential loss
whatsoever or howsoever, even if such loss was reasonably forseeable or VCOM had been advised of the possibility of the Customer incurring the same.
10.6 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under the Contract.
10.7 Except in the case of an Event of Default arising under Condition 10.3, VCOM shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon VCOM within six months of the date the Customer became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
10.8 VCOM shall not be responsible for complying with statutory regulations, or local by-laws, or the fulfilment of any special regulations affecting the Customer.
10.9 Save as set out in Condition 10.3, VCOM shall have no liability under this Contract of the acts and omissions of other public telecommunication operators or the breakdown total or partial of the VCOM (Link) Network or any other network.
10.10 To the extent that all or any part of the Services are faulty, unavailable or interrupted, the Customers sole and exclusive remedy shall be to be to such compensation as VCOM is entitled to from time to time from its relevant wholesale supplier.
10.11 VCOM shall not be liable for faults in the Customers telecommunications equipment which result in VCOM being unable to provide the Services.
10.12 Dates and times for provisions of the Services shall be estimates only and no liability shall accrue to VCOM for failure to meet any such dates or times. VCOM will not be held responsible for any loss due to programming errors or omissions made by any Authorised Person.
10.13 VCOM does not warrant that the Services will be fault free or free of interruption. In the event of any failure in the Services, VCOM shall not be liable to the Customer for any charges incurred by the Customer should it direct its telecommunication traffic to another carrier.
10.14 VCOM reserves the right not to provide the Services due to any technical limitation in the Customers telephone system, telephone exchange or VCOM Access Equipment.
10.15 The obligations set out in this Condition 10 as to limitations of liability shall remain in full force and effect notwithstanding the expiration or any termination of this Contract for any reason whatsoever.
11.1 VCOM may at any time before or after the provision of the Services require payment by the Customer in a manner specified by VCOM of a sum to be held by way of a deposit as and against any charges arising from use of the Services by the Customer and VCOM shall be entitled to offset such deposit against any sums due under this Contract from time to time including interest due or owing to VCOM pursuant to Condition 6.8.
11.2 Any deposit held by VCOM will not accrue interest whatsoever although any deposit (or part thereof) which is held by VCOM for over one year and which is subsequently repaid to the Customer may, at VCOM's discretion, attract interest at an amount determined by VCOM.
12.1 The Customer shall not assign, transfer, sub-contract, delegate or otherwise deal with all or any of its rights under the Contract.
12.2 VCOM shall have the right to assign or otherwise transfer, sub-contract, delegate all or any of its rights and obligations hereunder to an Associated Company or other person.
13. FORCE MAJEURE
Neither VCOM or the Customer shall be liable to the other for any loss or damage which may be suffered by the other party due to any cause beyond the first party’s reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supply, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of Government, highway authorities, public telecommunication operators or other competent authority, war, military operations, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of the Services or any part thereof.
14. NO WAIVER
Failure by either VCOM or the Customer to exercise or enforce any right conferred by this Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.
15. ENTIRE CONTRACT
The Contract represents the entire understanding between the parties in relation to the subject matter of the Contract and supersedes all other agreements and representations made by either party, whether oral or written.
16. SERVICE OF NOTICE
16.1 Any notice or invoice or other document which may be given under this Contract shall be in writing and shall be deemed to have been duly given if left by hand or sent by post whether by letter, or facsimile transmission (subject to the senders machine producing confirmation that all pages have been sent) or, where the parties expressly agree, by electronic mail to the registered office of the party to be served or any other address notified by the party to be served to the other party in writing as an address to which notices, invoices and other documents may be sent.
16.2 Any notice given by hand shall be deemed to have been received on the day of delivery, and notice sent by first class post shall be deemed to have been received two business days after posting. Any notice sent by fax or electronic mail shall be deemed to have been received on the day of its receipt by the addressee.
17.1 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted, with or without amendment.
17.2 Unless there is something inconsistent in the subject or context, words denoting the singular number only include the plural and vice versa; words denoting one gender only include the other genders.
17.3 Unless the context otherwise requires, a reference to a Condition is to a condition of the Contract.
17.4 The headings in the Contract are inserted for convenience only and do not affect its interpretation.
17.5 If any provision of the Contract is held invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Contract had been entered into with the invalid provision eliminated.
17.6 A person who is not a party to this Contract has no right under the Contracts (Rights of Third parties) Act 1999 to enforce any provisions of this Contract.
17.7 References to persons will be construed so as to include any body corporate, unincorporated association, individual, firm, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality).
18. COMPLAINTS AND DISPUTE RESOLUTION
18.1 Without prejudice to any statutory rights of the Customer (if any), VCOM undertakes to try and resolve any disputes between it and the Customer in relation to the subject matter of this Contract in accordance with VCOM’s Code of Practice from time to time in force (the current version of which can be viewed on VCOM’s website).
18.2 Where, at the end of the complaints procedure the Customer feels that the complaint or dispute concerned has not been properly addressed to its satisfaction then it may, without prejudice to its other rights or remedies, contact Otelo, the independent dispute resolution service, at PO Box 730, Warrington, WA4 6WU (or alternatively through its website at www.otelo.org.uk, by email to email@example.com, or by telephone to 0845 050 1614).
19. GOVERNING LAW
The Contract shall be governed, construed and interpreted in accordance with English law and subject to the provisions of Condition 18 the parties submit to the exclusive jurisdiction of the English courts as regards any claim, matter or dispute arising out of or relating to the Contract or any document entered into pursuant to the Contract.