Hosted Connectivity and Call Provision Terms and Conditions
1 Definitions and Interpretation Agreement: means these Terms and Conditions together with the Order.
Associated Company: means any company which is a parent company of the relevant entity or a subsidiary of such parent company, where parent company and subsidiary have the meanings set out in Section 736 of the Companies Act 1985. BT: means British Telecommunications plc and its Associated Companies.
Call Charge: means the Supplier’s charges for calls made on the System as specified in the Order or otherwise notified by the Supplier.
Charges: means any charges and fees payable by the Customer for the Service pursuant to this Agreement.
Confidential Information: means any information, whether communicated orally or in documentary or other form, which relates to the business of the Supplier including, without limitation, any information relating to products, customers, pricing, policies, methods, business plans and strategies, technical processes and financial affairs, in all cases whether expressly stated to be confidential or not.
Connection Charge: means the non-refundable charge payable by the Customer for installation and connection to the System as specified in the Order or otherwise notified by the Supplier.
Customer: means the party purchasing the Services, as named on the Order.
Early Termination Fee: include the Rental for the balance of the Minimum Period that remains outstanding, along with the supplier’s lost contribution and margin on call charges averaged from previous months bills, for the remainder of the minimum term. In addition, the Customer shall pay all reasonable third-party costs incurred by the Supplier in securing payment of such Charges and Fees.
Exchange Line: part of the System used by the Supplier to connect the Site to a telephone exchange to provide the Service.
IPR: means all intellectual property rights including, without limitation, copyright, patents, trademarks, registered designs, design rights, mask works, knowhow and all other similarly protected rights.
Minimum Period: means either, Thirty-Six (36) months (or such period as is set out on the Order) from the date that the Service is first delivered to the Customer.
Offending Material: means any material, data, images or information that is: (i) in breach of any law, regulation, code of practice or Supplier’s acceptable use policy, or
(ii) abusive, indecent, defamatory, obscene or menacing or otherwise offensive, or (iii) in breach of confidence, IPR, privacy or any right of a third party.
OfCom: means the Director General of Telecommunications or any similar office that may be appointed in addition or in substitution
Order: means the Service Order Agreement signed by the parties or such other document that the Supplier deems to constitute the Order.
Rental: means the monthly fee (including line rental, equipment rental, and other rental) payable by the Customer for the Service, as set out in the Order or otherwise notified by the Supplier.
Service: means all of the services that the Supplier has agreed to supply to the Customer, as set out in the Order. Site: means any or all of the Customer’s sites at which the Supplier is providing Services.
Supplier: means Cactus Business Solutions Ltd whose registered office is at Unit 1 Chevron Business Park, Holbury, Southampton, Hampshire, SO45 2QL. eMail: firstname.lastname@example.org
Supplier’s Equipment: means any equipment owned by the Supplier or its licensors that the Supplier uses to provide the Service. Working Day: means 09:00 to 17:30 Monday to Friday but excluding public holidays in the United Kingdom recognised by the Supplier. System: means the network that the Supplier uses to provide the Service.
2. Duration and Scope of this Agreement; commences on the date of acceptance of the Order by the Supplier (subject to Clause 7) until terminated by either party giving twelve (12) weeks written notice, to expire on or after the end of the minimum period.
2.1 If the Customer terminates this Agreement during the Minimum Period and has no right to terminate under Clause 7, or if service(s) ceases to be provided on the relevant Exchange Line during the Minimum Period, the Customer shall pay the Early Termination Fee.
2.2 The provision of the Service requires that BT or other communications provider undertake programming at exchange level. Accordingly, it is agreed that any act, default or delay by BT or other communications provider in carrying out such programming or otherwise relating to or affecting the Service shall not be the responsibility of the Supplier.
2.3 The Calls & Lines Service is available only if the Customer has a valid contract for the use of an analogue Exchange Line (in the case of the wholesale access Service)
2.4 The Customer acknowledges that certain services are incompatible with some Calls & Lines service available from BT. And the Customer’s equipment to be used connected with the Service shall be connected by means of Connection Points and ancillary wiring. If the Customer wishes a connection point moved to another place within the site, the Supplier may agree to undertake the work, subject to applicable charges.
2.5. The Supplier’s General Obligations; the provision of the Service is subject to all relevant licences, infrastructure (or interconnect arrangements) and consents being in place. The Supplier shall use reasonable endeavours to meet any agreed dates but shall not be liable for failure to meet them. The Customer shall obtain any consent or facility that is necessary or desirable for the Supplier to provide the Service on the Site.
2.6 The Supplier shall exercise the reasonable care and skill of a competent communications operator. The Service cannot be guaranteed to be fault free but the Supplier shall provide the same quality of service to the Customer as it provides from time to time to its customers generally.
2.7 The Customer shall report any fault to the Supplier’s Customer Services Department, where it will be dealt with in accordance with the agreed fault repair service. Where no Supplier’s Equipment is installed, the Supplier may request that the Customer first have its designated maintainer check the Customer’s equipment. If the Supplier agrees to fix a fault that is caused by the Customer or that otherwise falls outside the responsibility of the Supplier or where no fault is found, the Supplier may charge the Customer for any work that the Supplier has undertaken at its applicable man-hour rate.
2.8 The Supplier will allocate a telephone number to the Customer in respect of the Exchange Line and, unless the Customer requests otherwise, will arrange for a standard entry to be made in a Telephone Directory.
2.9 The Supplier service provider may provide the services the customer is using from the same supplier. Subject to the following there being no technical reasons preventing the use of the number; the existing communications service provider agrees to release the relevant telephone number(s); the Customer provides the Supplier with full details including (but not limited to) the account name, account number, service address and billing address; the Customer pays the Supplier’s charges (if any) for number portability; number portability is available at the Site.
3.7 The Supplier does not accept any liability for claims relating to the Customer’s ability to use or to continue use of a particular telephone number.
4. The Customer’s Obligations. The Customer shall not utilise and shall ensure that no other person uses the Service. For storing, reproducing, transmitting, communicating or receiving any Offending Material; or Fraudulently or for any criminal purpose or in a manner that is contrary to any regulatory or legal requirement; or to make offensive, indecent, menacing, nuisance or hoax Calls; or Contrary to instructions that the Supplier may give to the Customer.
4.1 The Customer will provide all information needed and allow the Supplier to credit checking and debt collection (including disclosure to and use by third parties acting for the Supplier) and any other uses and disclosures allowed by the Data Protection Act 1998 and will allow the Supplier to disclose such information to the extent that the Supplier is required to do so by Ofcom, the law or any relevant authority.
4.2 The Customer shall keep all of the Supplier’s Equipment safe and shall pay for the replacement and/or repair of any of the Supplier’s Equipment which is lost, damaged (otherwise than by fair wear and tear) or destroyed. At the end of the term of the Agreement, the Customer will allow the Supplier access at all times to collect any of the Supplier’s Equipment in the Customer’ possession.
4.3 The Customer shall at its own cost arrange for the required site-specific conditions, as notified by the Supplier. This will include, without limitation, mains electricity supply, connection points and computer terminals. The Customer shall prepare the Sites in accordance with the Supplier’s reasonable instructions and reinstate them at the Customer’s expense after the Supplier has completed any work necessary for the Supplier to be able to provide the Service.
4.4 The Customer shall ensure that any equipment (excluding Supplier’s Equipment) that it uses in connection with the Service meets any legal or regulatory requirements and is approved for connection to the System. If not, the Customer must immediately disconnect it or allow the Supplier to do so at the Customer’s expense.
4.5 The Customer shall indemnify and keep indemnified the Supplier against all or any claims and associated costs, damages or expenses made by any third party as a consequence of any breach by or other act or omission of the Customer under or in relation to this Agreement.
5. Payments: – The Supplier shall pay for the Rental monthly in advance and for the Call Charges after the end of the month in which the relevant calls were made.
5.1 The Customer shall pay any cancellation charges, abortive visit charges, engineering visit or site survey charges, or maintenance service charges imposed on the Supplier by BT and relating to the Service, save where such abortive visit or service maintenance charges arise through the Supplier’s default.
5.2 The Rental shall continue to be payable during any period of suspension or restriction requested by the Customer in addition to any Charges for such suspension or restriction.
5.3 The Charges are exclusive of Value Added Tax. The Customer shall (without set-off or deduction) pay in pounds sterling all invoices issued by the Supplier within fourteen (14) Days of the date upon them. If the Customer’s credit rating decreases at any time, the Supplier shall be entitled to revise the credit terms to require payment upon invoice or in less than 14 days. If the Customer fails to make payment by this date in full, in addition to the Supplier’s right to suspend set out in Clause 6.1, the Supplier may charge interest at the rate of 8% per annum above the base rate of the Bank of England on any amounts outstanding from the due date for payment until payment is made in full.
5.4 The Supplier may change the level of its Charges after giving the Customer four (4) weeks written notice of its intention to do so. This notice may be included in an invoice to the Customer. If the Supplier increases the Charges by more than the Retail Price Index during the Minimum Period, the Customer may terminate the Agreement in accordance with Clause 2 within ten (10) days of receipt of the notice of increase, without the obligation to pay the Total Early Termination Fee.
5.5 The Supplier may also change the level of its Charges during or after the Minimum Period, retrospectively as well as prospectively, as a consequence of (a) any Ofcom direction, determination, order or similar decision, or (b) any notice issued by BT correcting an error in the amount or application of a charge or payment under its interconnect agreement with the Supplier. In both cases, the Supplier shall only be entitled to change the level of its Charges where the foregoing impacts upon the basis upon which the Charges were calculated.
5.6 Where the Supplier agrees to do work outside a Working Day at the request of the Customer, the Supplier may charge the Customer in accordance with the Supplier’s man-hour rate.
6. Suspension and Variation of the Service: The Supplier may, with or without notice to you, suspend or vary the Service without compensation (unless due to the default of the Supplier) for any period during which:
6.1.1 The Supplier is required to do so in order to avoid a breach of the authorisation of the Supplier under the Communications Act 2003, as amended from time to time. The Supplier is obliged to comply with an order or instruction of action received from the Government, Ofcom, Radio Communications Agency, an emergency services organisation or a competent administrative authority.
6.1.2 The Supplier reasonably suspects or believes that the Customer is in breach of Clause 4.1 or Clause 5;
6.1.3 The supplier reserves the right to charge an Admin Fee to the Customer to enable re-connection, if the account has had to be suspended;
7. Termination Notice – Customer shall give twelve (12) weeks written notice to terminate after minimum agreement period.
7.1 We may, (which will be effective immediately), terminate this agreement (with or without notice to you), if you become insolvent or unable to pay your debts as they fall due or become bankrupt, enter into liquidation or any arrangement with creditors, have a receiver, administrative receiver, administrator, trustee or manager appointed in respect of all or any of your business or assets or otherwise cease to carry on business;
7.3 The rights to terminate this Agreement given by this Clause 7 shall be without prejudice to any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
7.7 Upon termination, if this is within the initial signed agreement period – (ie. Early termination) then the customer shall be responsible for the return all the equipment that was supplied under the agreement within 30 days or shall be charged for said equipment at full RRP. This equipment shall be returned in good working order, failure to do so mean a charge for the damaged stock will be levied accordingly. If the equipment is not returned within 30 days of termination, a charge will be levied for all equipment supplied. We reserve the right to levy a charge for re-stocking each item, up to 20% of equipment value.
8. Limitations and Exclusions of Liability – The Supplier’s entire liability (including any liability for acts or omissions of the Supplier’s employees, agents or subcontractors) to the Customer in tort, contract or otherwise arising in connection with the performance, non-performance or contemplated performance of this Agreement. Except as set out in this Agreement, the Supplier provides no warranties, conditions or guarantees as to the description or quality of the Service, and all warranties, conditions or guarantees implied by or expressly incorporated as a result of custom and practice, statute, common law or otherwise are hereby expressly excluded so far as permitted by law. The Supplier’s duty in performing any obligations under this Agreement is only to exercise reasonable care and skill of a reasonably competent communications provider.
8.2 Subject to Clause 8.4, the Supplier’s entire liability for non-fraudulent representation, or implied warranty, condition or other term, or under any duty at common law, or in tort (including negligence) or under the express terms of this Agreement shall not in the aggregate, in any period of 12 months, exceed the Charges paid in respect of that 12-month period. If for any reason this limit of liability shall be found to be unlawful or invalid by a court of competent jurisdiction, the Supplier’s entire liability as referred to in this clause shall not exceed £1,000,000 (one million pounds sterling) for any one incident or series of related incidents and £2,000,000 (two million pounds sterling) in aggregate during the term of this Agreement.
8.3 Notwithstanding anything to the contrary in this Agreement, but subject to Clause 8.4, the Supplier shall not be liable to the Customer under the express terms of this Agreement or by reason of any non-fraudulent representation, or implied warranty, condition or other term, or any duty at common law, or any tort, for any loss of profits or revenue, loss of income or business, loss of goodwill or reputation, loss of anticipated savings, loss of data, loss of use, or damages, loss or expenses payable by the Customer to any third party or any indirect or consequential or special loss or damage whatsoever and howsoever caused.
8.4 The Supplier shall not exclude or restrict liability for death or personal injury resulting from its own negligence or for fraudulent misrepresentation.
8.5 Each of the Supplier and the Customer acknowledges that it considers the provisions of this Clause 8 to be reasonable, taking account of the other terms of this Agreement (including the Charges) and its ability to insure against losses which may arise from any breach by the other Party of its obligations under this Agreement.
8.6 The provisions of this Clause 8 shall survive termination or expiry of the Agreement.
9 Confidentiality and Data Protection: The Customer agrees to keep all Confidential Information confidential. This Clause shall not apply to information that the Customer can prove: Is in the public domain otherwise than by the Customer’s breach; it already had in its possession prior to obtaining the information directly or indirectly from the Supplier; or a third party subsequently disclosed to the Customer free of restrictions on disclosure and use. This Clause shall survive for three (3) years from when the Customer acquired that Confidential Information from the Supplier.
9.1 The Customer may disclose Confidential Information if required to do so by law, regulation or rules of a securities exchange or other regulatory authority, but only to the extent of the relevant requirement. The Customer shall promptly inform the Supplier of the requirement and will co-operate with the Supplier in the disclosure.
9.2 The use of any information, including Calling Line Identification, may be subject to the Data Protection Act 1998, EU Data Protection Directives and The Telecommunications (Data Protection and Privacy) Regulations 1999.The Supplier reserves the right to withhold Calling Line Identification if it believes that the Customer has failed to comply with this Clause or the Supplier receives a complaint from any relevant authority.
10 Ownership: All IPR relating to the subject matter of this Agreement, and ownership of the Supplier’s Equipment and the System (including any works performed by the Supplier to connect the Site to the System) shall remain with the Supplier or its licensors, as appropriate. The Customer acknowledges that it shall have no licence, right, title or interest in or to any IPR of the Supplier or its licensors or the Supplier’s Equipment or the System, except as expressly set out in this Agreement. This Clause shall survive termination or expiry of the Agreement.
11 Circumstances beyond Reasonable Control: Neither Party shall be liable for any delay in performing its obligations under this Agreement caused by circumstances beyond its reasonable control. These are circumstances such as, but not limited to, Acts of God, insurrection or civil disorder or military operations, national or local emergency, acts or omissions of government or other competent authority or regulatory authority, fire, flood, lightning or other weather of exceptional severity, subsidence, explosion or industrial disputes.
This Clause does not apply to the Customer’s obligation to pay. If either Party is affected by circumstances beyond its reasonable control, it shall notify the other Party and shall use reasonable endeavours to overcome the effects. If those effects continue for more than three (3) months, the Parties shall enter into a discussion to agree, in good faith, the best way forward.
12 Notices must sent by hand or first class prepaid post or email. The address for service on the Customer is as set out in the most recent invoice.
12.2 A notice will be deemed served: On hand delivery, except where this is outside a Working Day, in which case the next Working Day; Two Working Days after posting (proof that the envelope containing the notice was properly addressed, prepaid and posted and that it has not been returned to the sender shall be proof of posting).
13 General: A delay in enforcing rights under this Agreement shall not be a waiver, as any waiver must be expressly granted in writing. The unenforceability or invalidity of any part of this Agreement shall not affect the enforceability or validity of the remainder of it. The termination or expiry of this Agreement shall be without prejudice to the rights of either Party. Clauses that are expressed to survive or which are by implication intended to survive termination or expiry of this Agreement shall so survive.
13.1 This Agreement contains the entire agreement and supersedes all other agreements and understandings between the Parties with respect to its subject matter. Any terms proposed by the Customer that are not written in these Terms and Conditions shall be invalid. Subject to Clause 8.4, each Party acknowledges that, in entering into this Agreement, it does not do so based on, and does not rely on, any representation, warranty or other provision except as expressly written in this Agreement, and that its only remedy can be for breach of contract.
13.2 Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the Parties.
13.3 This Agreement is not intended to be for the benefit of and shall not be exercisable by, any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither Party can declare itself trustee of the rights under it for the benefit of any third party.
13.4 The Supplier may change this Agreement at any time without requiring the agreement of the Customer to the extent that the Supplier’s contract with BT relating to the Service is changed.
13.5 The Supplier may transfer or assign its rights and obligations to any of its Associated Companies and may sub-contract any of its obligations. Otherwise, neither Party may transfer, assign, sub-licence or subcontract any rights, licences or obligations under this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld or delayed.
13.6 English law shall govern the validity, construction and performance of this Agreement and the Parties submit to the exclusive jurisdiction of the English Courts.
14 Renewal : At least 15 working days before renewal we will attempt to contact you about your renewal requirements and provide you with your renewal quote.
14.1 Your Renewal Agreement shall be deemed to be agreed as of the end date of your previous agreement, to ensure continuity of services. If you do not wish us to take this action, please tell us before your renewal date. If we do not hear from you to the contrary, we will treat it that you agree to the new agreement for the services we provide for its duration.
15 Term & Conditions variations: You should frequently check the web page for any variations in our Cactus Business Solution Terms & Conditions