Terms And Conditions

The Customer’s attention is particularly drawn to the provisions of clause 9.

1.Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Charges: the charges including the Service Fee payable by the Customer for the supply of the Services in accordance with clause 6.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 12.8.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person or firm who purchases Services from the Supplier including that person’s employees, agents, consultants or sub-contractors.

Data Equipment: either data equipment already owned by the Customer at the Commencement Date or equipment supplied by the Supplier to the Customer and noted as “Data” on Schedule A and in either case located at the Location.

Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.

Equipment: the Data Equipment and/or the Voice Equipment.

Initial Minimum Period:  the period specified at paragraph 4 of the Service Agreement.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Location: the Customer’s premises specified at paragraph 6 of the Service Agreement where the Equipment is to be located and/or the Services are to be performed.

Maintenance Releases: a release by a manufacturer from time to time of any software which corrects Customer specific faults but which does not constitute a New Version.

New Version: any new version of any software which from time to time is publicly marketed, which is offered by the Supplier for purchase by the Customer and which, in the normal course of its business, the purchase or operation of the new version does not require that the Customer already has an earlier version of the software.

Normal Working Hours: 9.00 a.m. to 5.00 p.m. on Monday to Friday inclusive each week excluding all statutory holidays.

Order: the Customer’s order for Services specified at paragraph 2 of the Service Agreement.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification including restoring normal service operation to the Customer’s business as quickly as reasonably possible following report of a fault by the Customer to the Supplier.

Service Agreement: the Service Agreement to which this Schedule B is attached.

Service Fee: the fee for the Services set out in the Specification being the sum specified at paragraph 5 of the Service Agreement.

Software: the software specified in Schedule A.

Software Support: the support for the Software specified at clause 3.7.

Specification: the description or specification of the Services provided in writing in Schedule A by the Supplier to the Customer including as appropriate Data Equipment, Software Support and/or Voice Equipment.

Supplier: DIRECT TELECOMMUNICATIONS SYSTEMS LIMITED (trading as Direct Voice & Data) registered in England and Wales with company number 01851301.

Supplier Materials: has the meaning set out in clause 5.1(g).

Voice Equipment: either voice equipment already owned by the Customer at the Commencement Date or equipment supplied by the Supplier to the Customer and noted as “Voice” in Schedule A and in either case located at the Location.

Alarm System Equipment: either the Alarm equipment already owned by the Customer at the Commencement Date or equipment supplied by the Supplier to the Customer and noted on Schedule A and in either case located at the Location.

CCTV Equipment: either Close Circuit Television equipment already owned by the Customer at the Commencement Date or equipment supplied by the Supplier to the Customer and noted on Schedule A and in either case located at the Location.

1.2 Construction. In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its personal representatives, successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e) a reference to writing or written includes faxes.

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted on the earlier of either when the Supplier signs the Service Agreement or the Supplier commences provision of the Services at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3. Supply of Services

3.1 The Supplier shall supply the Services to the Customer during Normal Working Hours in accordance with the Specification in all material respects for the Initial Minimum Period commencing on the Commencement Date and thereafter from year to year unless otherwise terminated in accordance with the Contract.

3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in Schedule A, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

3.5 The Supplier will maintain the Voice Equipment in good working order during the term of the Contract.  Where a defect arises with the Voice Equipment as a result of fair wear and tear through proper operation by the Customer the Supplier will repair or replace any defective parts at no additional cost to the Customer.  At the Supplier’s sole discretion the Supplier may replace any of the Voice Equipment for any length of time provided that such replacement shall be similar to the equipment it has replaced and such replacement shall be covered by the terms of this agreement.

3.6 The Supplier will maintain the Data Equipment for unlimited calls during the term of the Contract, but the Supplier shall not be required to replace any Data Equipment.

3.7 Where the Customer has requested Software Support the Supplier will use reasonable endeavours to provide remote and, where necessary, on-site support to identify and subsequently assist the manufacturer of the Equipment to resolve a software fault with the Equipment.  Software Support shall only cover the software supplied under the Contract and shall not cover any additional software the Customer may acquire during the term of the Contract unless the Supplier has agreed in writing that it will include the new software within the Software Support.  If the Customer requests that additional software be included within the Software Support the Supplier shall be entitled to increase its Charges and shall not be obliged to provide the additional support until those increased Charges have been agreed in writing.

4. SERVICE EXCLUSIONS

4.1 The Contract expressly excludes:-

(a) Consumable items (including but not restricted to printer toner, fuser assembly, ink cartridges etc.), Dot Matrix and inkjet print heads.

(b) Typesetting equipment and RIP server hardware.

(c) Cathode ray tubes.

(d) Installation and configuration of hardware and/or software not supplied by the Supplier.

(e) Services not specified in Schedule A.

(f) Normal manufacturer specified service or overhaul of laser printers.

(g) Any software that is not licensed to the person named in Schedule A.

(h) Bespoke software.

(i) Software supported by a third party.

(j) Any extension or Cat 5 wiring used with the equipment or any Customer generated software programs.

4.2 The following are expressly excluded from the Contract and shall only be undertaken at the Suppliers sole discretion and subject to the Customer paying the Supplier’s additional Charges.

(a) Any work not included in clauses 3.5 to 3.7 which requires the Supplier to physically attend the Location.

(b) Any work required to be undertaken outside the Normal Working Hours.

(c) Rectification of defects in Software caused by the installation of unofficial upgrades.

(d) Rectification of defects in Software which has been modified, installed or re-installed by the Customer or any third party without the prior written approval of the Supplier.

(e) Installation and support of beta or other pre-release software.

(f)  Rectification of defects in Software caused by the installation of beta or other pre-release software.

(g) Data recovery services.

(h) Any Equipment which the Supplier has advised the Customer needs to be replaced until it is replaced.

(i) Any Equipment which is removed and/or relocated from the Location.

(j) Any Service requested at a location other than the Location or outside the Supplier’s normal service area.

4.3 Under no circumstances shall the Supplier undertake any work that may result in the infringement of any software licences or another person’s Intellectual Property Rights such work to include but shall not be limited to the unauthorised modification of software or the installation of multiple copies of software in excess of any quantity permitted by the relevant software licence.

5. Customer’s obligations

5.1 The Customer shall:

(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier, its employees, agents, consultants and subcontractors with access to the Location and the Customer’s other premises, office accommodation and facilities as reasonably required by the Supplier;

(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

(e) prepare the Location for the supply of the Services;

(f) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;

(g) keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Location in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;

(h) maintain the Equipment in a suitable environment approved by the Supplier;    

(i) notify the Supplier immediately, including full details, of any defect with the Equipment;

(j) not to use any materials or services supplied by a person other than the Supplier;

(k) observe and perform all statutory and other obligations relating to the Location including but not limited to health and safety matters; and

(l) pay the Charges.

5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

5.3 The Customer shall not, without the prior written consent of the Supplier at any time from the date of this Contract to the expiry of twelve months after the termination of the Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of the Supplier in the provision of the Services.

6. Charges and payment

6.1 The Customer shall pay the Service Fee to the Supplier on the Commencement Date.

6.2 The Supplier may increase the Service Fee at any time if the Customer requests any change to the Specification and, subject to the foregoing and clause 6.3, may otherwise increase the Service Fee provided that:

(a) no such increase will take effect during the Initial Minimum Period;

(b) the Supplier gives the Customer written notice of any increase one month before the date of the increase;

(c) there be no more than one increase in any twelve month period;

(d) such increase shall be limited to the increase in the Retail Price Index for the relevant period; and

(e) provided the Initial Minimum Period has expired, if such increase is not acceptable to the Customer, the Customer shall notify the Supplier in writing within fourteen days of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other remedies to terminate the Contract by giving eight weeks written notice to the Customer.

6.3 The Supplier may vary the Service Fee if the Customer requests and the Supplier agrees that additional Equipment be added to the Equipment specified in Schedule A.  Such additional Service Fee shall be payable in advance of the additional Equipment being supplied and shall be charged at the Supplier’s then prevailing rates.

6.4 The following is a non-exhaustive list of Services which the Supplier may at the Customer’s request supply which are not included in the Service Fee and for which the Supplier will make additional charges on the basis set out in clause 6.5;

(a) alterations or modification to the Equipment to meet the Customer’s requirements;

(b) relocation or re-installation of Equipment;

(c) rectifying defects arising from misuse or neglect of the Equipment, accidental damage to the Equipment, faults with the manufacturer’s design or materials, acts of God or other causes other than ordinary use;

(d) any fault due to the Customer or third party error;

(e) any fault arising from a failure or fluctuation of electrical power;

(f) where additional or updated hardware is required to allow Maintenance Releases or New Versions to be installed; or

(g) where the Customer logs a fault but:

 i. the problem is not caused by a software fault with the Equipment;

 ii. the fault logged is a non-system fault, that is, it is a fault with the carrier’s (e.g. British Telecom, Cable & Wireless or other network provider) system (in which case the Supplier will charge the Customer in accordance with clause

6.5 and provide a carrier fault reference to enable the Customer to reclaim the costs it has incurred from the carrier.  The Supplier cannot accept any responsibility whatsoever if the carrier refuses to refund some or all of these costs);

iii. on the Supplier responding no fault exists;

iv. on the Supplier responding it is unable to gain access to the Location during Normal Working Hours.

6.6 The Charges for the Services other than those covered by the Service Fee and including but not limited to those set out in clause 6.4 shall be on a time and materials basis:

(a) the Charges shall be calculated in accordance with the Supplier’s then prevailing standard daily fee rates;

(b) the Supplier’s standard daily fee rates for each individual are calculated on the basis of the Normal Working Hours;

(c) the Supplier shall be entitled to charge additional fees at its then prevailing overtime rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 6.5(b);

(d) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials, and

(e) the Supplier shall be entitled to charge the Customer for any charges it incurs from third parties (such as charges for Maintenance Releases or New Versions) and for any additional hardware parts or other equipment it supplies in connection with the Services.

6.7 The Supplier shall invoice the Customer for the Service Fee covering the Initial Minimum Period on the Commencement Date, for the Service Fee covering periods after the Initial Minimum Period annually in advance and for other charges on completion of the relevant Services.

6.8 The Customer shall pay each invoice submitted by the Supplier:

6.9 (a) immediately on receipt of the invoice; and

6.10 (b) in full and in cleared funds to a bank account nominated in writing by the Supplier; and

6.11 time for payment shall be of the essence of the Contract.

6.12 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT).  Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.13 The annual support charge for the initial current period of twelve months shall be the charge specified on the schedule. For each subsequent year during the continuation of this agreement the annual support charge shall increase by 5% 

6.14 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1988 accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

6.15 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.  The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7. Intellectual property rights

7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

7.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

7.3 All Supplier Materials are the exclusive property of the Supplier.

8. Confidentiality

A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 8 shall survive termination of the Contract.

9. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation; or

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

9.2 Subject to clause 9.1:

(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including any losses that may result from a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors;

(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed a sum equivalent to the Service Fee applicable for the twelve month period prior to the date of the loss arising and the Customer acknowledges and accepts that the Service Fee has been set having taken into account the limitations contained in this clause 9; and

(c) the Supplier shall not be liable to the Customer in any event for losses, whether direct, indirect or consequential, resulting from:

(i) any loss of data;

(ii) any breakdown of equipment or network cable infrastructure;

(iii) any damage to hardware, software and/or data caused by virus, spyware or other similar malicious attack;

(iv) system faults caused by telephone area code changes;

(v) any changes in carrier services;

(vi) any legislative changes;

(vii) least cost routing programming; or

(viii) any loss arising due to a failure by the relevant person to hold an appropriate software licence

9.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

9.4 This clause 9 shall survive termination of the Contract.

10. Termination

10.1Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty days of that party being notified in writing of the breach;

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(e) the other party (being an individual) is the subject of a bankruptcy petition or order;

(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1(b) to clause 10.1(i) (inclusive);

(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

10.2 Without limiting its other rights or remedies, the Supplier may at any time terminate the Contract with immediate effect by giving written notice to the Customer if he Customer fails       to pay any amount due under this Contract on the due date for payment.

10.3 Without limiting its other rights or remedies, each party shall following the expiration of the Initial Minimum Period have the right to terminate the Contract by giving the other party three months’ written notice to expire on any anniversary of the end of the Initial Minimum Period. Written notice would be sent recorded delivery

10.4 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.1(b)) to clause 10.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

11. Consequences of termination

On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services 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;

(b) the Customer shall return all of the Supplier Materials and any Deliverables which have 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;

(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

12. General

12.1 Force majeure:

(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

(c) If the Force Majeure Event prevents the Supplier from providing any of the Services for more than four weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

12.2 Assignment and subcontracting:

(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

12.3 Notices:

(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

(c) This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

12.4 Waiver:

(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

12.5 Severance:

(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or enenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

12.6 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

12.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

12.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.

Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

The Customer’s attention is particularly drawn to the provisions of clause 9

1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

Act:  Telecommunications Act 1984 as amended from time to time

ADSL:  Asymmetric DSL (see DSL).

Call Bundle: Inclusive Minute Bundles can be used to make calls in the UK to standard UK landlines (starting 01, 02 or 03 numbers only) and 07 numbers allocated to UK mobile network operators that provide mobile tariffs with substantial national coverage.

Unless clearly stated, Call Bundles cannot be used to make calls made in the UK to non-geographic numbers and free phone numbers (starting 08, &, 05), non-standard or “special” 07 numbers (all those 07 numbers that are not specifically included in your Minutes bundle, i.e. are not used to provide mobile services, including 07 numbers allocated to network operators in Jersey, Guernsey and the Isle of Man), 076 numbers and 070 numbers; or any number ranges which we reasonably believe are being used for call forwarding services, onward calling services or numbers that pay a revenue share. Examples of such number ranges include 07744 or 07755, 078225, 079879, 078730, 078931, 079118, 079112, 078930, 078921, 077000, 079245, 079246, but are subject to change; (a) premium rate and directory enquiries numbers where special charges apply; (b) video calls; or (c) any calls made from abroad (including Jersey, Guernsey and the Isle of Man) or to an international destination from within the UK.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Call Plan Agreement:  the Call Plan Agreement to which this Schedule B is attached.

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 12.8.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person or firm who purchases Services from the Supplier including that person’s employees, agents, consultants or sub-contractors.

DDI:  Direct Dial in (a private number to dial into, usually to avoid the switchboard).

DSL:  Digital Subscriber Line known as Broadband.

Initial Minimum Period:  the period specified at paragraph 4 of the Call Plan Agreement.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

ISDN:  Integrated Subscriber Digital Network and where any numbers following (ISDN2 and ISDN30) refer to the channels available.

ISP:   Internet Service Provider

LCR:   Least Cost Routing.

Like for Like Transfer:  an automatic transfer of the existing services that exist on a telephone line, when changing line provider.

LLU:  Local Loop Unbundling.  This is a process where BT permits its local network (the copper wires between customer premises and local BT exchange) to be disconnected and re-connected to the LLU operator, with DSL technology to provide “always on” high-speed access to the internet.  LLU always requires a short period of dis-connectivity, so it is not a seamless transfer.

MPLS:  Multi-Protocol Label Switching which is a technology platform, and acts as a layer to a network protocol by adding its own label to each packet of data, enabling greater priority to mission critical data.  (Example – using IP to transmit data, voice traffic is given greater priority than email).

Network:  any telecommunications system and associated equipment, hardware and software, utilised to provide telecommunications data and voice services.

NGN:  Non Geographic Number, which shall also include any Virtual STD Number which has been mapped to an IP configuration which is not geographically identified, which the Supplier licences or loans to the Customer, or port on the Customer’s behalf from another Network to a Network of the Supplier’s choice or from the Supplier’s chosen Network, to another Network of the Customer’s choice.

Normal Care Levels:   the care levels selected by the Customer and set out in the Specification.

Order: the Customer’s order for Services specified at paragraph 2 of the Call Plan Agreement.

Our Chosen Carrier:  the telecommunications carrier, the Supplier has pre-selected responsible for switching the Suppliers/the Customers outbound calls (landline and where applicable the Customers airtime) to the chosen destination; and/or for switching the Suppliers/the Customers inbound calls (landline and where the applicable the Customers airtime) where their switches hand the Suppliers/the Customers NGN traffic; and Our Chosen Carrier may also refer to our chosen ISP.

Our CPS:  “Carrier Pre Selection”, being an outbound Service, where the Supplier chooses on the Customers behalf, to pre select a carrier, to provide switched fixed-line/land-line telecoms Services, which enable the Customers calls, and their delivery to be the Suppliers responsibility and for which the Supplier will bill you and for which the Customer has agreed to pay the Supplier, in accordance with our Charges and tariff structure and these Conditions.

Our IDA:  as an alternative to Our CPS, by using alternative means of indirectly accessing Our Chosen Carrier, such PBX programming, which routes calls, to Our chosen Carrier.

Private Branch Exchange:  (a conventional telephone system)

Provision of Commencement Date:  the date after the Commencement Date on which the customer’s lines under the Contract go live.

Rental: (also known as Line Rental) a fixed monthly or quarterly or annual charge, levied in advance of the period for which service is provided, set out within the Standard, Bespoke, Bundled or Graded Tariff, or such other tariff or variation that has been agreed with the Customer for the utilisation of the physical connectivity between the BT exchange and the Line Box within the Customer premises.  DSL services are not provided within Line Rental unless otherwise stated within the Order. We also may refer to SIP Rental utilising data connections in lieu of tradition analogue or ISDN services.

SDSL:   Symmetric DSL (see DSL).

Services: the telecommunication services, supplied by the Supplier to the Customer as set out in the Specification including restoring normal service operation to the Customer’s business as quickly as reasonably possible following report of a fault by the Customer to the Supplier.

Set-Up Fee:  one-off charges that the Supplier may agree with the Customer to establish a particular service.

Specification: the description or specification of the Services provided in writing in Schedule A by the Supplier to the Customer.

SIP Session Initiation Protocol (SIP) is an Internet Engineering Task Force (IETF) standard protocol for initiating an interactive user session that involves multimedia elements such as video, voice, chat, gaming, and virtual reality.

STD Code:  a subscriber trunk dial code that can be identified by its geographical locality.

Supplier: DIRECT TELECOMMUNICATIONS SYSTEMS LIMITED (trading as Direct Voice & Data) registered in England and Wales with company number 01851301

Toll Fraud is the unauthorised use of a company’s phone system or telephone lines. It is usually an unknown person hacking into a phone system illegally enabling them to dial in and get transferred to any telephone number (usually overseas). This results in the customer receiving a potentially large phone bill. Also known as dial though PBX fraud.

Toll Fraud Protection: An Opt out service which is added to your monthly Rental to protect you against toll fraud subject to our standard call plan contract terms and conditions (see section 12.10)

Virtual STD Number:  a number that appears to be an STD Code, but which is mapped to an IP configuration which is not geographically identified and which we categorise within these Conditions as an NGN.

WLR:  Wholesale Line Rental.

1.2 Construction. In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its personal representatives, successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e) a reference to writing or written includes faxes.
 

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
 

2.2 The Order shall only be deemed to be accepted when the customer signs the Call Plan Agreement at which point the Contract shall come into existence

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid until the end of the month in which it is issued.
 

3. Supply of Services

3.1 The Supplier shall supply the Services to the Customer in accordance with the Normal Care Levels and the Specification in all material respects for the Initial Minimum Period commencing on the Commencement Date and thereafter from year to year unless otherwise terminated in accordance with the Contract.

3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in Schedule A, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

3.5 In the event the Supplier allocates any telephone numbers to the Customer for the purposes of the Contract the Customer acknowledges and agrees that it shall not acquire any legal or equitable right to such telephone numbers and that all Intellectual Property Rights in those telephone numbers shall remain vested in the Supplier.  The Supplier shall be entitled to withdraw or change any telephone number or code or group of numbers or codes upon giving the Customer reasonable prior written notice.
 

4. SERVICE EXCLUSIONS

4.1 The Contract expressly excludes

(a) Any obligation for the Supplier to connect or keep connected any of the Customer’s telecommunications apparatus that does not, in the Supplier’s reasonable opinion conform with the Act or is liable to cause death or personal injury, damage to property or impair the quality of any services provided by the Supplier or put the Supplier in breach of its obligations to any third party.

(b) Services not specified in Schedule A.

4.2 Any work required to be undertaken outside the Normal Care Levels is excluded from the Contract and shall only be undertaken at the Suppliers sole discretion and subject to the Customer paying the Supplier’s additional Charges.

4.3 Under no circumstances shall the Supplier undertake any work that may result in the infringement of any software licences or another person’s Intellectual Property Rights.

 

5. Customer’s obligations

5.1 The Customer shall:

(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) if appropriate, authorise the Supplier, its employees, agents, consultants and subcontractors to access equipment and/or re-program the Customer’s equipment in order to provide the Services at no cost to the Supplier unless previously agreed in writing;

(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

(e) indemnify the Supplier against all losses, fines, damages, claims, costs and expenses whatsoever suffered or incurred by the Supplier as a result of or in connection with the Customer’s use of the Services in breach of the Contract;

(f) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
 

(g) ensure at all times that its telecommunications apparatus shall conform to the relevant standard or standards specified for the time being in the Act;

(h) not use the Services:

            (i) as a means of communication for a purpose other than that for which the Services are provided;

            (ii) for the transmission of any material which is defamatory, offensive, abusive, obscene or threatening or which would constitute a criminal offence or infringe the rights of any third party (including but not limited to contractual rights or Intellectual Property Rights); or

            (iii) for any purpose which may be prescribed by legislation.

(i) provide the Supplier, its employees, agents, consultants and subcontractors with access to the Customer’s premises as reasonably required by the Supplier.

(j) permit the Supplier to request and manage as a whole any transactions to connect the Customer to C.P.S. (carrier pre select) and shall permit the Supplier to sign any forms on behalf of the Customer which are required by the chosen carrier to use this service.

(k) observe and perform all statutory and other obligations including those under the Act relating to the provision of the Services; and

(l) pay the Charges.

5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation  or if the Customer fails to pay any sum due to the Supplier by the Due Date (as defined at clause 6.5) (Customer Default):

(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

5.3 The Customer shall not, without the prior written consent of the Supplier at any time from the date of this Contract to the expiry of twelve months after the termination of the Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of the Supplier in the provision of the Services.
 

6. Charges and payment

6.1 The Charges for the Services shall be as specified in Schedule A save that:

(a) the Supplier may decrease any of its Charges at any time such decrease to be reflected in the Supplier’s next invoice to the Customer;

(b) provided that the Supplier gives to the Customer 30 day’s prior written notice at any time then the Supplier may increase its charges such increase to take effect upon expiry of the notice.  Upon receipt of a price increase notice the Customer may, provided it gives written notice to the Supplier within 30 days of receiving that notice, terminate the Contract at the end of the price increase notice period.

6.2 The Supplier shall invoice the Customer for:

(a) installation costs in advance of the installation taking place;

(b) rent charges monthly in advance; and

(c) usage charges monthly in arrears calculated by reference to data recorded or logged by the Supplier and not by reference to any data recorded or logged by the Customer, the Supplier’s data, in the absence of manifest error, being final and binding.

(d) any charges incurred for number portability and/or number(s) removed from the network, where the supplier incurs costs from the carrier.

6.3 The Customer shall pay each invoice submitted by the Supplier:

(a) by direct debit within 14 days of the date of the invoice; and

(b) in full and in cleared funds to a bank account nominated by the Supplier, and

time for payment shall be of the essence of the Contract.

6.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.5 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1988 accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

6.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
 

7. Intellectual property rights

7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

7.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
 

8. Confidentiality

A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 8 shall survive termination of the Contract.

9. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation by the Supplier; or

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

9.2 Subject to clause 9.1:

(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including any losses that may result from a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors;

(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed a sum equivalent to one month’s billing by the Supplier for the Services based on the average billing for Services to the Customer over the 3 months prior to the claim or from the Commencement Date to the date of claim if the claim arises within 3 months of the Commencement Date; and

(c) the Supplier shall not be liable to the Customer in any event for losses, whether direct, indirect or consequential, resulting from:

(i) any loss of data;

(ii) any breakdown of equipment or network cable infrastructure;

(iii) any damage to hardware, software and/or data caused by virus, spyware or other similar malicious attack;

(iv) system faults caused by telephone area code changes;

(v) any changes in carrier services;

(vi) any legislative changes;

(vii) least cost routing programming;

(viii) any loss arising due to a failure by the relevant person to hold an appropriate software license;

(ix) a failure in the Services and the Customer’s calls being diverted to another carrier (in which case the Supplier shall only be entitled to make usage charges for calls made by the Customer under the Contract); or

(x) The Customer allowing, knowingly or otherwise, the telephone system to be accessed by unauthorised users, including hackers, and/or voice or data calls to emanate from the Customer’s telephone system that the Customer has not authorised (and for the avoidance of doubt the Customer shall remain liable to pay the Supplier it’s full charges relating to any such calls).

9.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

9.4 This clause 9 shall survive termination of the Contract.

10. Termination

10.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty days of that party being notified in writing of the breach;
 

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(e) the other party (being an individual) is the subject of a bankruptcy petition or order;

(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
 

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1(b) to clause 10.1(i) (inclusive);

(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
 

(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

10.2 Without limiting its other rights or remedies, the Supplier may at any time terminate the Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under this Contract on the due date for payment;              or

(b) any licence under which the Customer has the right to run it’s own telecommunication system and connect it to the Supplier’s system is revoked, amended or ceases to be valid.

10.3 Without limiting its other rights or remedies, each party shall following the expiration of the Initial Minimum Period  have the right to terminate the Contract by giving the other party 30 days prior written notice.

10.4 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if:

(a) the Customer becomes subject to any of the events listed in clause 10.1(b)) to clause 10.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them;

(b) if the Customer fails to pay any amount due under this Contract on the due date for payment;

(c) the Supplier is obliged to comply with an order, instruction or request of the  U.K. Government and/or emergency services organisation and/or other competent authority re the provision of telecommunications services or the establishment of networks or any information provided across them; or

(d) the Supplier needs to carry out any emergency works to the network or any equipment installed at the Customer’s premises by the Supplier for the purposes of providing the Services.

10.5 If the Contract terminates for any reason on a date other than the anniversary of the Commencement Date then the Customer shall, in addition to any other sums due to the Supplier, pay the line rental charges for the line rental that would have been due as if the Contract had remained in force until the next anniversary of the Commencement Date plus an administration fee of £100.00.

11. Consequences of termination

On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services 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;

(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

12. General

12.1 Force majeure:

(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

(c) If the Force Majeure Event prevents the Supplier from providing any of the Services for more than four weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

12.2 Assignment and subcontracting:

(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

12.3 Notices:

(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

(c) This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

12.4 Waiver:

(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

12.5 Severance:

(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

12.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

12.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

12.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier. The Supplier may on 30 days prior written notice vary the Conditions or any other provisions or technical specifications of the Services.

12.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

12.10 Toll Fraud Protection

(a) Each line rental / channel, SIP or Hosted equivalent taken by the customer shall be covered by an additional charge to cover the customer in the event of fraudulent call activity.

(b) The supplier is not liable should the customer “opt out” of the service.

(c) Where the customer suspects fraudulent call activity, the customer should complete a Toll Fraud Claim form, whereby the matter will be investigated and a decision made as to whether a claim will be paid. (subject to clause 12.11)

(d) Any claim is subject to an excess of £200 and a maximum value of £5000 per incident

(e) Claims may be rejected where the customer has not taken relevant steps to secure their PBX and Hosted system or ignored advice given to them by their system maintainer. (see clause 12.11 – Unauthorised Usage).

(f) These terms are subject to section 9 – Limitation of liability

(g) Toll Fraud Protection is charged at £1.50 per line / per channel / per SIP trunk.

(h) Where Direct Voice and Data do not provide rentals (as described in section 1.1 Definitions, we will not be able to provide Toll Fraud protection, the customer will therefore not be included in the scheme and will not be billed for Toll Fraud Protection.

(i) Payment for Toll Fraud Protection must be paid within the same payment terms as the invoice submitted (see section 6 – Charges & Payment) late payment will invalidate any cover.

12.11 Unauthorised Usage

(a) The Customer will be liable for all charges incurred for the use of the Services, irrespective of whether the Services have been used by the Customer, its employees, agents or representatives and any Unauthorised Third Party or fraudulent use (by any means)

(b) The Customer will be responsible for preventing unauthorised use of the Services, maintaining the security of all systems (including setting so called easy passwords such as 1234, 0000,1111,2580,1379,9876 etc. which may be easily hacked. Network elements and equipment within its (or its employees’, agents’ or contractors’) control; and

maintaining (and ensuring that each of its authorised users maintains) the integrity and secrecy of all passwords, log-in details and access codes used for the purposes of accessing or using the Services or any systems, network elements or equipment. The Customer agrees that they will (or will procure that appropriately qualified third parties

will) put in place and comply at all times with the following non exhaustive list of security measures; Keeping strong passwords, regularly updating them and following any other reasonable directions from the communications provider.

The Customer will notify the Supplier immediately of any illegal, fraudulent or unauthorised use of the

Services if they are made aware. On receipt of such a notice, the Supplier shall use reasonable efforts to suspend or prevent such use by the Unauthorised Third Party

The Supplier will be entitled to suspend or terminate the provision of the Services. The Supplier will lift its suspension or recommence its provision of the Services within a reasonable timescale.

‘DIRECT

means Direct Telecommunications Ltd t/a Direct Voice and Data.

‘SUBSCRIBER’

means the Customer.

‘NETWORK’

means any telecommunications network available from Direct.

‘SERVICES’

means the telecommunications services provided by means of the Network.

‘CALL CHARGE’

means a predetermined charge unit of time costed at the rates set out in the Tariff Sheets published by Direct from time to time, which are available on request from Direct.

‘CONNECTION CHARGE’

means the relevant one-off sum to be charged for connection to the Service.

‘CONNECTION’

means the connection of the Mobile Phone/SIM Card to the Network.

‘CONNECTION DATE’

means the date of connection.

‘INVOICE DATE’

means the same date as appears on the invoice raised by Direct.

‘MONTHLY CHARGE’

means the relevant sum for access to the Network and provision of certain Services as set out in the Contract under Service Information and Charges, or any additional Services requested.

‘SIM CARD’

means the Subscriber Identity Module, which is a unique card containing information and when used with a Digital Mobile Phone, enables access to the Services.

A’DIGITAL MOBILE PHONE’

is the equipment used on the Digital GSM Specification Network.

‘CREDIT LIMIT’

means a monthly financial limit applied for charges incurred under this Agreement.

‘EQUIPMENT/DEVICE SUBSIDY’

means the subsidy applicable to any item of equipment for the relevant Minimum Period.

‘DISCONECTION NOTICE’

means a notice to disconnect one or more items of equipment or devices from the wireless services.

‘GROUPWORKER SERVICE’

means the Service more particularly described in the price list/proposal which uses certain wireless extension technology and that enables certain devices pursuant to the terms of this agreement to operate as part of the Customer’s wireless virtual private network.

‘MINIMUM TERM’

means the number of months stated overleaf during which you agree to take the Service from Direct commencing on the date of connection, port, migration or upgrade of equipment.

‘MINIMUM PERIOD’

means in respect of each item of equipment the term stated overleaf from the commencement date or the date of supply of new or upgrade of such equipment or the date of a port or migration (whichever is the later).

‘TERMINATION FEE’

means the Line Rental Charges to the end of the Minimum Period (as detailed in 10.2) in respect of each device or SIM Card disconnected from the wireless service, and if appropriate any additional fees which may arise from network charges.

Early termination can only be agreed between the Customer and Direct with network approval.

‘TERMINATION NOTICE’

means the notice to terminate this Agreement served pursuant to clause 11 which should be submitted in accordance with the Termination Notice process and using the Termination Notice

Form or as may otherwise be made available to the Customer by the Direct Customer Services Desk.

‘VALUE ADDED SERVICES’

means the value added services such as installations, insurance, field services, repair etc as may be made available from time by Direct to the Customer on non discriminating basis and details of which appear on the Price List.

‘SYSTEM’

means the cellular GSM UK Network

‘MNO’

the mobile network operator providing network services to Direct or Gamma Telecom Ltd.

1 Agreement for the Sale and Purchasing of Equipment

1.1 Direct agrees:

1.1.1 To use its reasonable endeavours to ensure that all equipment when delivered is in full working order; and performs in accordance with the manufacturer’s description and specification.

1.1.2 `Its obligation to sell and supply equipment shall cease as and from the date of the Termination Notice (although Direct may thereafter sell and supply equipment at its discretion).

1.2 Acceptance of the equipment by the Customer shall take place when the Customer takes delivery or possession of the equipment.

1.3 Where equipment is provided to the Customer on a free of charge basis, then notwithstanding delivery and acceptance of the equipment title in the equipment shall remain with Direct until minimum contract is served. Following any upgrade of equipment or disconnection the equipment from the wireless service Direct shall reserve the right to request the safe return of the equipment from the Customer to Direct. The Customer shall keep the equipment in good working order during the period of use by the Customer.

1.3.1 Direct reserves the right to charge the Customer any applicable replacement or repair charges as set out from time to time in the PRICE LIST/PROPOSAL for any equipment that is not returned to Direct in accordance with the provisions of this clause.

1.4 Notwithstanding clause 1.2, risk in the equipment will pass to the Customer upon delivery who will be liable for any loss or damage of the same and from the time when the equipment is delivered to the delivery location specified in the sales order/proposal unless the damage is caused by the negligence of Direct or any third party used by Direct.

2 Agreement for the sale and purchase of Airtime, Wireless Service and any Additional Wireless Services

2.1 The Customer agrees;

2.1.1 That any telecommunications equipment provided by Direct for the purpose of providing the Direct airtime service shall remain the property of Direct and the Customer shall be responsible for its proper use. If any part of such telecommunication equipment is lost or destroyed, (except for fair wear and tear) the Customer shall pay Direct its replacement value. The Customer shall not interfere with or permit any third party to interfere with such telecommunication equipment.

2.1.2 It is your responsibility to make sure the SIMs are only used to access Services as permitted in this agreement.

2.1.3 The Customer agrees in using the SMS Services:

2.1.4 Via the Customer’s Direct airtime or other leased, or indirect access to a device which is not connected to the Direct airtime my incur additional inter-connect charges in respect of transfer of messages to another mobile network operator service and Direct reserve the right to invoice the Customer, and the Customer agrees to pay such charges.

2.1.5 That each device or equipment is capable of receiving SMS text messages which may originate from a variety of sources and where Direct are acting as a Service provider and as much as has no knowledge of, involvement with, or liability for the specific content of any SMS text messages sent to the Customer’s equipment or device, which originate from such sources.

2.1.6 Our network provider or its MNO owns each SIM and each SIM remains their property at all times. You are being allowed to use the SIM by us on a limited licence to enable you to access Services, in accordance with the terms of this agreement. We or they may recall the SIM(s) at any time for upgrades, modifications, misuse or when your agreement ends. You can only use our SIM to obtain Services from us.

2.1.7 Each SIM may only be used in Handsets which are enabled for Services and are authorised by us for Connection to our network. Any attempt to use the SIM in other Handsets may result in serious damage to the Handset and may prevent you from being able to use it, including the making of emergency calls. In these instances, we, our network provider or its MNO, are not responsible for any such damage or usage problems.

2.2 Direct Agrees to:

2.2.1 Direct will endeavour to supply a reliable service of engineers for Services rendered by Direct. Direct will not be responsible for any repairs or equipment failed to work when third party engineers have been designated to complete a job requested by the Customer or any party with authority to the mobile account.

2.2.2 Direct will not be responsible for any loss of Service or business, if any third party supplier does not show for the job or the job is not of high calibre. Direct is only the supplier for the Service rendered and will not be responsible for any damages.

2.3 Direct may amend the tariffs as set out in Direct’s published tariffs and this document by giving written notice. Where the change is due to a change in the rates payable by or to Direct, Direct will provide as much notice as possible. In all other cases, Direct will provide four (4) weeks notice.

3 Delivery and risk of equipment

3.1 Property in goods: The goods shall remain the property of Direct until paid for in full by subscriber and the minimum term is completed.

3.2 A 20 % re-stocking fee will be charged for non-defective products returned by the Customer. Returning equipment requires an authorised Direct Returns Number, and has to be accompanied by all accessories & original undamaged outer packaging for a credit note to be issued.

3.3 Upon receipt of goods by a Customer or any representative of, if a product shortfall, alleged defect or discrepancy is identified then Direct must be notified within 2 business working days of receipt otherwise a claim for product shortfall will not be valid.

3.4 Except as expressly provided in this agreement by Direct all warranties, conditions of terms, (whether expressed or implied by statute or common law or otherwise) as to the quality of their Services or their fitness for any particular purposes are hereby excluded to the fullest permitted by law.

3.5 Direct shall not be liable for any indirect or consequential cost, claims damages or expenses arising out of the any negligent or tortuous act or omission or any breach of contract or statutory duty.

3.6 Direct shall not be liable to the Subscriber or be deemed to be in breach of the Agreement by reason of any delay in performing or failure to perform any of its obligations if the delay or failure was due to any cause beyond the reasonable control of Direct.

3.7 Nothing herein shall have the effect of excluding or restricting the liability of Direct for death or personal injury resulting from its negligence.

3.8 Direct reserve the right to charge carriage in circumstances where the subscriber refuses to accept delivery of goods supplied by Direct in response to a duly authorised order received from the subscriber.

4.Service Standards

4.1 The Customer acknowledges that Direct is entirely dependent on its suppliers and the Network operators in relation to the quality of airtime, in terms of line clarity and call interference; and the geographic extent of the airtime coverage, and local geography, topography and / or atmospheric conditions and/or other causes of physical electromagnetic interference that may from time to time adversely affect the provision of airtime.

4.2 Direct may, where ever reasonable from time to time and without notice suspend the wireless services and provision of customer services in accordance with the service charter and at its discretion suspend the provision of the wireless service to the device in any of the following circumstances without prejudice to its right hereunder, provided that it shall use reasonable endeavours to restore the wireless service, the service charter and reconnect the device as soon as reasonably practicable:

4.2.1 During technical failure, modification or maintenance of the telecommunication systems by which the wireless service are provided; and

4.2.2 During technical failure, modification or maintenance of the Direct systems by which the customer service in line with the service charter are provided and;

4.2.3 If the Customer fails to comply with the terms of this agreement after being given written notice of its failure (including but not limited to failure to pay any sums due hereunder) until such failure to comply is remedied; and

4.2.4 If the Customer allows anything to be done which in Direct’s reasonable opinion may have the effect of jeopardising the operation of the wireless services, or the Direct System or attainment of the service charter; and

4.2.5 If in the reasonable opinion of Direct, the wireless service is being used in a manner prejudicial to the interest of the Customer and/or Direct; and

4.2.6 At its discretion Direct may suspend any device from making calls (other than to the emergency service) and disconnect the Device if Direct has reasonable cause to suspect fraudulent use of any payment method, the device’s SIM card or the device itself, or the device is identified as having been stolen.

4.2.7 Because of an emergency or upon instruction by emergency services or any government or appropriate authority (including the Network operator) or for the Customer’s own security.

4.3 During any period of suspension arising from the circumstances detailed 4.2.3 to 4.2.6 inclusive, the Customer shall remain liable for all charges levied in accordance with this agreement.

4.4 If Direct agrees in their sole discretion to re-instate the Service following a suspension of disconnection, the Customer may be liable for a re-connection fee if the suspension or disconnection is due to the default of the Customer.

4.5 The Subscriber should be aware that the current statutory provisions relating to wireless telegraphy and telecommunications services apply to the use of Services via the Mobile Phone/SIM Card and in addition the Subscriber must generally observe the Wireless Telegraphy Act of 1949 to 1967, the Telegraphy Act 1984, the other relevant legislation, statutory instruments, and comply with any directions made by the Director General of the Office of Telecommunications of the Secretary of State;

4.5.1 Not use or allow others to use the Service for any improper or immoral or unlawful purpose;

4.5.2 Not act or omit to act in any way in which may injure or damage any personal property or the Network or howsoever cause the quality of the Service to be impaired.

4.5.3 Comply with any reasonable instructions issued by Direct which concern the Subscriber’s use of the Service or Mobile Phone/SIM Card or connected matters.

4.5.4 Provide Direct with all such necessary information that Direct may reasonably require and;

4.5.5 Only use the Mobile Phone/SIM Card supplied under this Agreement, which is approved for use with the Network.

4.6 Direct’s minimum call charge is in line with the networks and is available on Direct’s Tariff Sheet.

4.7 Once you are Connected, we will provide you with access to our Services. The Services will include Premium Services, provided you ask for them and we approve, and may also include Age Restricted Services, provided you are 18 or over and you do not show or send any content from the Age Restricted Services to anyone under 18.

4.8 You will also be able to upload and send your own content using the Services. You grant us, our network provider, or its MNO, a royalty free, perpetual and worldwide licence to store, transmit or otherwise deal with any content you upload on the Services.

4.9 We may:

(a) change or withdraw some, or part, of the Services from time to time. This may be because of changing technologies, obsolescence, new or different product features, changing content providers or the need to remove, replace or modify content. Subject to Section 2, you can end the agreement if this variation is likely to be of detriment to you as explained in Section 10; and

(b) also determine how Services are presented and delivered to the Handset or are otherwise made available to you. We can change the way they are presented, delivered or otherwise made available to you at any time.

5 Sales Order

5.1 At any time after the commencement date of the agreement, the Customer may by means of a sales order request a change or variation to the wireless services (but not a disconnection). In placing the sales order the Customer makes use of the agreement originally advised of.

5.2 All sales orders shall be subject to the terms of this agreement. Any alternative terms appearing on or referred to in any other communication, (whether oral, in writing or by electronic means) by the Customer for the purpose of placing sales orders shall be ineffective.

5.3 The Customer undertakes to use its reasonable endeavours to keep Direct informed whenever reasonably practicable of likely future sales orders.

5.4 Direct undertakes to use all reasonable endeavours to fulfil the sales order as soon as reasonably practicable and if possible by the requested dates for delivery/commencement but cannot be held responsible for failure to do so.

5.5 As and from the date of any termination notice Direct shall have no obligation to fulfil any sales order, but may in its discretion choose to do so and for the avoidance of any doubt any device supplied under the terms of this agreement will be charged to the Customer at its full price as appears on the Price List without the benefit of any Device Subsidy.

6 Disconnection of Devices

6.1 Upon giving of a disconnection notice Direct will disconnect the relevant number or numbers from the wireless service in accordance with the Disconnection Notice upon the expiry date of 30 days from the date of receipt of the Disconnection Notice. The Agreement will remain in full force and effect in relation to all other equipment and in relation to the provisions of Airtime to such other equipment.

6.2 In the event that the Customer gives Disconnection Notice to take effect (and resulting in disconnections) prior to the expiry of the Minimum term (see 10.2) for the particular number concerned, the Customer will pay to Direct any applicable Termination Fee.

6.3 In the event of the Subscriber terminating the agreement before the term specified the following will apply:

6.3.1 Direct’s standard line rental, until the end of the specified term, will be charged on each number within the fleet.

6.3.2 In early termination an administration fee will be charged subject to the discretion of Direct;

6.3.3 Any equipment supplied free of charge or as part of the discount package will be the property of Direct and will be returned by the Customer or invoiced to the Customer at Direct’s price list at time of early termination.

6.3.4 Any commission paid or line rental discount provided as part of a discount package may be subject to clawback.

6.4 In the event of the Network providing call data after the disconnection of the device the subscriber will be liable for all outstanding charges at any time after the disconnection date.

7 Basis of Charges

7.1 Except in the circumstances described in clause 4.3 the process and tariffs payable by the Customer to Direct for equipment and airtime are as set out in the business mobile airtime agreement. Upon expiration of the Minimum Term and should the customer decide not to sign an extension agreement with Direct. Direct shall be entitled to remove any line rental and airtime discounts given and charge the Network RRP for that tariff.

7.2 The Customer hereby agrees to pay the charges in full without any deduction or set off to Direct within 14 days following the date of the invoice for such charges.

7.3 The charges are exclusive of Value Added Tax

7.4 The charges detailed on the Business Mobile Airtime Agreement are available subject to the Customer achieving the minimum holding within three months of the commencement date and maintaining the minimum holding for the duration of the service period.

7.5 Where the number of devices connected to the service falls below the minimum holding for a consecutive period of three months Direct reserve the right to amend the charges accordingly.

8 Billing Arrangements

8.1 Without prejudice to any other rights of Direct in the event of the Customer failing to pay any sums due to Direct on time or at all notwithstanding delivery of written reminder to the Customer Direct shall be entitled to:

8.1.1 Reclaim from the Customer all costs and expenses (including legal costs) incurred in the collection of overdue amounts from the Customer; and

8.1.2 Suspend the provision of the wireless service, the performance of Customer services to the service charter and/or disconnect devices or equipment from wireless service; until such time that all payments due including all interests incurred has been paid and satisfied in full.

8.2 Direct reserves the right to review any credit applied to this Agreement.

8.2.1 Direct may require from the Customer a deposit as security for payment charges. The Customer may request the return of any deposit paid at the expiry of the 13 months period but the decision to return any deposit prior to termination of the agreement will be at the discretion of Direct. Direct reserves the right to set off any deposit against the charges. Direct may require the Customer to pay by Direct Debit. If the parties agree that payments by the Customer to Direct are to be made by credit card and if payment of charges are not made on the due date Direct is authorised to debit the Customer’s nominated Credit Card Company with all charges due and payable to Direct.

8.3 Direct reserve the right to withhold or withdraw discount on any invoices that remain unpaid in accordance with clause 6.2

8.4 Payment Terms:

8.4.1 Payment for all Services will be as follows:

8.4.2 Direct Debit payment for airtime and subscription charges (line rental etc.) is compulsory,

8.4.3 Direct Debit payments will be collected within 14 days of the invoice date unless with agreed exception.

8.4.4 Charges for non-Direct Debit is £2.50 + VAT per handset per month until a Direct Debit form is fully completed and received by Direct or of the duration of the airtime Agreement.

8.4.5 Should the Direct Debit fail and it is deemed to be the Customer’s responsibility, a charge of £10 + 2% of the invoices value will be charged

8.4.6 A 4% surcharge, based on the invoice value, is charged for any credit card payment

8.4.7 If the Subscriber fails to pay any part of the aforesaid charges within 14 days from the invoice date Direct reserves the right to charge interest at the rate of 6% above the Bank of England base rate from time to time calculated from the 14th day until the date payment is made.

8.4.8 Call charges are submitted monthly in arrears and subscription charges (including any applicable subscription charge for mobile extension) are submitted monthly in advance.

8.5 Other charges:

8.5.1 For the purchase of any hardware, or airtime there is a £5.00 minimum order charge.

8.5.2 A charge of £2.50 per invoice is chargeable if the Subscriber requests a copy invoice when the original has already been sent.

8.5.3 Carriage charges are also chargeable; please refer to the price list available on Direct’s website or Direct Customer Services. Prices are subject to change.

8.5.4 All invoices will be provided electronically, if a paper copy is required, there will be a charge of £2.50 per invoice.

8.6 Any dispute much be registered with LT within 5 working days of the date of invoice otherwise payment in full is due on the due date.

9 Obligations Of the Customer

9.1 This Agreement shall commence on the date of the Connection of each number and shall continue thereafter unless terminated.

9.1.1 To give Direct not less than ninety (90) days written notice of termination after the minimum period.

9.2 Will undertake with Direct that throughout the Service period it will:

9.2.1 Not permit or suffer its employees to act or omit to act in any way, which may injure or damage any persons’ property or in any way, which may cause the quality of the wireless service or any aspect of them to be suspended; and;

9.2.2 Not use or allow its employees to use the equipment or have access to the wireless service for any improper, immoral or unlawful purpose; and

9.2.3 Comply with all statutory requirements in relation to the use of the equipment and the Wireless service; and

9.2.4 Provide Direct with such information as Direct reasonably request in connection with this agreement; and

9.2.5 Not use the equipment and the wireless for any purpose other than that for which it was designed or intended, or for self provision of wireless telecommunications service; and

9.2.6 Notify Direct immediately (and to confirm in writing) on becoming aware that any equipment or device has been lost or stolen or that any person is making improper or illegal use of the equipment or the wireless services.

9.3 The Customer will be responsible for any charges incurred as a result of unauthorised use of any devices, or SIM Card, or the information contained within a SIM Card, until Direct have suspended the Service; and

9.3.1 Not damage or tamper with the equipment so as to invalidate any warranty provided by the equipment manufacturer and to pay the standard charges levied by Direct from time to time applicable to repair work on equipment which is outside (in scope or time) the warranty provided by the manufacturer of the equipment; and

9.3.2 Not damaged or tamper with any software so as to invalidate any warranty provided by the supplier of the same; and;

9.3.3 Use the equipment and any software in accordance with any user guide or other reasonable instructions of any manufacturer or supplier of the same or reasonable instruction of Direct and not to copy (save as permitted by law) reverse engineer or modify the software in any way.

9.4 The term of this Agreement shall also apply to any sales orders placed by any subsidiaries or group companies of the Customer (unless the parties agree in writing otherwise). The Customer agrees that it is the authorised agent of its subsidiary and group companies and will be liable to Direct for all claims, losses and expenses arising out of breach of the term of this Agreement by any subsidiary or group companies.

9.5 The Subscriber agrees that these terms and conditions shall govern this Agreement between Direct and the Subscriber to the exclusion of any other terms and conditions oral or written and all representations for communications between the parties relating to the subject of the Agreement.

9.6 The Subscriber must promptly advise Direct of any change of address in writing and by recorded delivery. Any notice hereunder sent by Direct to the Subscriber should deem the Subscriber to be served within 48 hours of posting to the last address notified in writing to Direct.

9.7 Our network provider or its MNO owns the SIM and it remains their property at all times, you must ensure that you keep the SIM safe and secure whilst it is in your possession and you must ensure that you are able to return it to us, if required to do so by us at any time, as set out in these terms. There will be a charge for any replacement SIM, unless, it is defective through faulty design or workmanship.

9.8 You must keep all PINs and passwords secure and confidential. You are also responsible for the security of your Handset and must ensure that you keep it secure (refer to the Handset manufacturer’s user guide for details of how to keep your Handset secure).

9.9 You should immediately change your PIN or password if you become aware that someone is accessing Services on your account without your permission.

9.10 You may only use Services:

(a) as laid out in this agreement; and

(b) for your own personal use. This means you must not resell or commercially exploit any of the Services or content.

9.11 You must not use Services, the SIM or phone number or allow anyone else to use Services, the SIM or phone number for illegal or improper uses. For example:

(a) for fraudulent, criminal or other illegal activity;

(b) in any way which breaches another person’s rights, including copyright or other intellectual property rights;

(c) to copy, store, modify, publish or distribute Services or content (including ringtones), except where we give you permission;

(d) to download, send or upload content of an excessive size, quantity or frequency. We will contact you if your use is excessive;

(e) in any way which breaches any security or other safeguards or in any other way which harms or interferes with our network, the networks or systems of others or Services;

(f) to falsify or delete any author attributions, legal or other proper notices or proprietary designation or labels of the origin or source of software or other content contained in a file that you upload; and

(g) to use or provide to others any directory or details about customers.

9.12 You must always co-operate with us and follow our reasonable instructions to ensure the proper use and security of the Services and your account. You must only use Handsets authorised by us for Connection to our network and also comply with all relevant legislation relating to their use.

9.13 We may publish an acceptable use policy which provides more detail about the rules for use of certain Services in order to ensure that use of Services is not excessive, to combat fraud and where Services we may introduce require certain rules to ensure they can be enjoyed by our customers. If we publish a policy, we will let you know – such a policy may be amended from time to time – for instance, if we discover that the Services are being used fraudulently or for fraudulent purposes, or the excessive use of certain Services is causing problems for us, our network provider, or its MNO, its systems or for other users or if we introduce new services which may require certain rules to ensure that such new services can be enjoyed by our customers, again, we will let you know if this happens.

9.14 While using the Messaging Services, you must not send or upload:

(a) anything that is copyright protected, unless you have permission;

(b) unsolicited bulk or commercial communications or other unauthorised communications, or knowingly send any viruses; or

(c) anything that is obscene, offensive, abusive, defamatory, menacing, harassing, threatening or is unlawful in any other way.

9.15 We may put limits on the use of certain Services, such as Messaging Services or Storage Services. For example, we may limit the size of messages or storage space.

9.16 While we have no obligation to monitor the Messaging Services or Storage Services, if you exceed our use limits set out in our fair use policy, or we are made aware of any issues with your use of these Services, (for example, if we are made aware that you are using Services in any of the ways prohibited in Section 4.8 above) we reserve the right to remove or refuse to send or store content on your behalf.

9.17 If you are under 18, you are not permitted to access our Age Restricted Services (if any). If you are 18 or over and you access the Age Restricted Services, you must not show or send content from the Age Restricted Services to anyone under 18. You must also ensure that you have deactivated any access to Age Restricted Services if you let anyone under 18 use your Handset.

9.18 If you use Services from a country outside the UK, your use of the Services may be subject to laws and regulations that apply in that other country. We are not liable for your failure to comply with those laws or regulations.

9.19 Conditions Of Tariff;

9.19.1 The length of the Agreement term and the mobile number remain connected until expiry of the Agreement term.

9.19.2 That the Customer fulfils the full term of the contract. That the payment terms are strictly adhered to throughout the term of the contract.

9,20 Fair Usage Policy – unlimited plan: 

UK local/national calls and UK SMS policy of 10,000 minutes or texts.

Inclusive UK calls to standard UK landlines (starting 01,02 and 03), standard UK mobiles, Group Conferencing and GSM WAP

If a number regularly uses 650GB of data per month or tethers 12 or more devices, we may consider this to be none permitted use and have the right to move you to a more suitable plan.

EU roaming data (EU RLAH) is capped at 35GB per month, chargeable per MB afterwards.

UK to EU Minutes and text policy of 2000 mins and 2000 texts and then standard charges apply

10 Duration of Agreement

10.1 This Agreement shall commence on the day of each Connection and shall continue for the minimum term and thereafter until the same is brought to an end by means of a Termination Notice.

10.2 Minimum Terms; each mobile phone number connected shall have the Minimum Term as stated under this Agreement and/or supporting documentation provided. The minimum stated is for each mobile number from its individual connection date. Where the Minimum Term relates to a re-sign of an existing number, the Minimum Term starts once the previous Minimum Term has expired.

11 Terminations

Termination Notice;

11.1 May be given by either party if the other party is in material breach, and the breach is capable of remedy and the party in breach shall have failed to remedy the breach within thirty – (30) days of written notice specifying the breach and require it’s remedy, or the breach is not capable of remedy.

11.2 In addition Termination Notice may be given by Direct at any time on the grounds that:

11.2.1 The Customer has persistently failed to pay monies properly due to Direct under this Agreement; or

11.2.2 The Customer is otherwise materially or persistently in breach of the Agreement; or

11.2.3 Bankruptcy or insolvency proceedings are brought against the Customer, or if an agreement with creditors is made, or a receiver or administrator is appointed over any of the Customer’s assets, or the Customer goes into liquidation; or

11.2.4 Airtime becomes unavailable due to the termination of any of Direct’s agreement with the Network Operator(s).

11.3 Without prejudice to any other claims or remedies which Direct may have against the Subscriber, Direct may terminate this Agreement by giving notice to the Subscriber with immediate effect in any of the following circumstances:

11.3.1 If the Subscribers do or allow to be done anything which in Direct’s opinion will or may have the effect of jeopardising the operation of the Services.

11.3.2 If the Subscriber provides false or misleading information.

11.4 Upon the termination of this Agreement Direct shall disconnect the Mobile Phone/SIM Card from the System. If Direct at their sole discretion agree to reconnect the Subscriber following such disconnection and such disconnection arises as a result of circumstances set out in Clauses 6.2,6.2.1,6.2.2 and 6.2.3 the Subscriber shall be liable for a reconnection charge equal to the Connection charge or a minimum of thirty five pound (£35) and this agreement shall be deemed to continue.

11.5 On termination of this Agreement Direct reserves the right to charge any applicable termination, administration or porting fee of up to £35.00 per number when the contract ceases and the numbers are moved to another service provider.

11.6 Direct reserves the right to add the reasonable costs incurred in receiving any outstanding debt due from the Subscriber.

12 Confidentiality & Data Protection

12.1 The parties will each keep confidential any proprietary information and/or any information obtained from the other in connection with this Agreement (including for the avoidance of doubt details of the Customer’s employees) which is reasonably identified by either party as commercially confidential or which is obviously confidential in nature and neither will divulge the same to any third party except such of its employees contractors and agents as may need to know the same for the purpose of the implementation of this Agreement and who agree to be bound by the provisions of this clause without consent in writing of the other.

12.2 Data Protection:

12.2.1 The subscriber acknowledges that details of the Subscribers name, address, and payment record may be submitted to a credit reference agency.

12.2.2 Direct operates in accordance with the Data Protection Act 1998 as updated or amended from time to time. The Customer agrees that its details, or those of its users, may be used by Direct for marketing purposes and to inform the Customer of its users from time to time about other wireless telecommunication service or associated technologies. If the Customer does not want its details, or those of its users to be used in this way then the Customer should contact Direct Telecommunication Systems Ltd T/A Direct Voice and Data, Direct House, Commercial Road, Skelmanthorpe, Huddersfield, HD8 9DA

12.3 Privacy Notice and Your Information

12.3.1 We may pass and share your organisation’s information and user’s personal information to our network provider, or its MNO, other communications service providers and network operators for the detection and prevention of theft and fraud, and to carry out any activities or disclosures to comply with any regulatory, government or legal requirement.

12.3.2 If you use Services from a country outside the UK it may be necessary to transfer your information to that country. If that country is outside of the EEA, the treatment of your personal information may be subject to laws and regulations applying in that country and which may not protect your information to the same standards applying in the UK and the EEA.

12.3.3 You must keep any passwords and PIN numbers relating to your account and the Services safe and secure. You must not share them with anyone else. If you find or suspect that anyone else knows your passwords or PIN numbers, or can guess them, you must contact us immediately and ask us to change them. This is your responsibility.

13 Transfer Of Liability & Assignment

13.1 Direct may at any time assign its rights under this Agreement to any third party and may subcontract the performance of all or part of the same Agreement.

13.2 The Subscriber cannot transfer their obligations to pay charges under this Agreement without Direct’s express consent. Any proposed transfer should be notified to Direct in advance. If a new user or the Mobile Phone/SIM Card is accepted by Direct and enters into a new Agreement, satisfactory to Direct, then it is Direct’s policy to release the existing Subscriber from liability for future charges.

13.3 Direct’s acceptance of payment from another person other than the Subscriber does not imply that Direct has amended any of its rights or obligations of the Subscriber.

13.4 The Customer shall not assign or transfer the benefit of this Agreement to any third party without the prior written consent of Direct, such consent not to be unreasonably withheld or delayed.

14 Variations

14.1 Direct may vary all or any of its charges by publishing of such variations in its Tariff Sheets. Such variances to have immediate effect under this Agreement unless otherwise stipulated therein. Direct may vary the conditions of this Agreement to take account of new Legislation, statutory instrument, Government Regulations or Licenses or similar matters provided that the Subscriber is notified of any such variances in writing or by publishing such variation at Direct’s principal place of business.

14.2 It is the policy of Direct to continually review the charges it makes, its service charter and terms upon which it contracts with Customers in order to maintain a competitive advantage over the other providers of similar service and Direct accordingly reserves the right to vary its process and tariffs as set out in its price list, its service charter and these terms from time to time in accordance with the policy.

15 Miscellaneous

15.1 Invalidity.

If any of the provisions of this agreement is or becomes invalid, illegal or unenforceable, the validity or enforceability of the remaining provisions shall not in any way be affected by or impaired. In any such circumstances the parties shall negotiate in good faith in order to agree the terms of mutual satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision, which is found to be invalid, illegal or enforceable.

16 Wavier

16.1 The failure or delay by either party to this Agreement to exercise or enforce any right, power or remedy under this Agreement shall not be deemed to operate as a waiver of any such right, power or remedy; nor shall any single or partial exercises by any party operate so as to bar the exercise or enforcement thereof or of any right, power or remedy on any later occasion.

17 No Third-Party Rights

17.1 Provided by this Agreement a person who is not a party to this Agreement has no rights under the contracts (Rights of Third Parties) Act 1999 to enforce any term agreement but this does not affect any right or remedy of third party which exists available apart from by the Act.

18 Operative Law

18.1 This Agreement shall be considered as a contract made in England and according to English Law and subject to the exclusive jurisdiction of the English courts to which both parties hereby submit.

19 Notices

19.1 Any notice or other communication required or permitted under this Agreement to be given in writing to the address of the recipient stipulated therein or as notified from time to time and will be deemed to have been given or made when delivered personally if properly addressed and posted by first class mail in England within two business days of posting and/or if sent by facsimile upon being sent or if sent by e-mail or other electronic means upon such communication being acknowledged has having been received.

19.2 Notices given to Direct will only be accepted in writing to Direct’s registered address or by email to cease@direct-voiceanddata.com

20 Entire Agreement

20.1 Basis of Agreement;

20.2 This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, representation, proposal understanding and agreements whether written or oral relating to the matter of this Agreement.

20.3 The subscriber agrees that these terms and conditions shall govern this Agreement between Direct and the Subscriber to the exclusion of any other terms and conditions oral or written and all representations for communications between the parties relating to the subject of the Agreement.

20.4 Provision of the Services does constitute acceptance of the terms of this Agreement. Each and every Mobile Phone/SIM Card and ancillary Service connected by Direct to the Network shall be governed by the terms and conditions hereunder. This Agreement shall be deemed to commence on the date of each mobile phone connection.

20.5 The Subscriber must promptly advise Direct of any change of address in writing and by recorded delivery. Any notice hereunder sent by Direct to the Subscriber should deem the Subscriber to be served within 48 hours of posting to the last address notified in writing to Direct. This Agreement shall be governed by and constructed in accordance with English Law.

20.6 The entire Agreement between the Subscriber and Direct will commence only after appropriate credit checks are completed.

20.7 If you, or we or our network provider, or its MNO, delay, or do not take action to enforce our respective rights under this agreement, this does not stop you, or us or them, from taking action later.

20.8 In exceptional circumstances, a government authority may order the reallocation or change of phone numbers, in which case we may have to change your phone number for Services.

20.9 You confirm that you have full contractual capacity to agree to the agreement.

21 Our Rights – Intellectual Property

21.1 All rights, including copyright in Services and their content, belong to us, our network provider, its MNO, or our licensed source, such as a content provider. We and they reserve all our and their rights.

21.2 The Gamma trade marks and other related images, logos and names on the Services are proprietary marks of the Gamma group of companies. We and they reserve all our and their rights.

22 Effect of this agreement ending

22.1 If this agreement ends, we will close your account and Disconnect you and you will not be able to use Services or make emergency calls.

22.2 You must immediately pay all Charges you owe up to the date the agreement ends. If we end the agreement due to your conduct or if you end your agreement within the Minimum Term, the Charges will include a Cancellation Fee.

23 Third Party Rights

23.1 This agreement is entered into by us for the benefit of us, our network provider, and its MNO.

23.2 For the purposes of the Contracts (Rights of Third Parties) Act 1999 it is intended that our network provider, Gamma Telecom Ltd and its MNO will have the right to enforce any rights conferred on it under this agreement and to that extent Gamma Telecom Ltd and its MNO will have the same rights against you as would be available if they were a party to this agreement.

Direct Telecommunication Systems Ltd T/A Direct Voice and Data, Direct House, Commercial Road, Skelmanthorpe, Huddersfield, HD8 9DA