Terms and Conditions

INTERPRETATION

In these Terms and Conditions the following expressions will have the following meanings unless inconsistent with the context:

“Contract” any contract between Hosted Telco and the Customer for the supply of

the Services formed in accordance with these Terms and Conditions and the Supply

and Maintenance Terms and Conditions annexed here to

“Customer” the purchaser of the Services named in section (1) of the Order Form overleaf

“Hosted Telco ” Hosted Telco

“Order” any order placed by the Customer with Hosted Telco for the supply of

the services formed in accordance with Condition 2

“Order Form” the Order Form overleaf

“Services” any service which Hosted Telco is to provide to the Customer (including any of them or any part of them) under a Contract and detailed on the Order Form overleaf

“Supply and Maintenance Terms and Conditions” the Supply and Maintenance Terms and

Conditions annexed to these Terms and Conditions

“Service Point” the place at which the Services are to be performed as specified on the Order Form overleaf

“Terms and Conditions” the standard Order Form Terms and Conditions set out in this

document and any special terms agreed in writing between the Customer and

Hosted Telco as specified on the front of the acknowledgement of order.

2   FORMATION AND INCORPORATION

2.1 Subject to any variation under Condition 11.5, any Order made by the Customer for Services provided by Hosted Telco will be upon these Terms and Conditions, to the exclusion of all other terms and conditions and all previous oral or written representations including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Order.

2.2  These Terms and Conditions shall run in accordance with the Supply and Maintenance Terms and Conditions annexed to this form which shall govern the supply and maintenance of the Services by Hosted Telco to the Customer.

2.3  Each Order or acceptance of a quotation for services will be deemed to be an offer by the Customer to purchase Services upon the Terms and Conditions. The Contract is formed when the order is accepted by Hosted Telco by way of a written acknowledgement of order. No contract will come into existence until a written acknowledgement of order is issued by Hosted Telco. All orders must be on Hosted Telco standard Order Form.

2.4   The Customer may not cancel the Order. Hosted Telco m ay cancel the Order at any time

prior to delivery of the Equipment or performance of the Services.

3   DESCRIPTION

.

3.1  The Description of the Equipment or Services to be provided will be set out in Section (2) of

Hosted Telco Order Form overleaf. All samples, drawings, descriptive matter, specifications and advertising issued by Hosted Telco and any descriptions or illustrations contained in Hosted Telco catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Equipment or Services represented by or described in them.

They will not form part of the Contract and this is not a sale by sample.

3.2  Hosted Telco may make any change to the provisions of the Services which are to conform with any applicable safety, statutory or regulatory requirement or do not materially affect their quality or performance.

4   PRICE AND PAYMENT

4.1  The price for the Services will be the price set out in Hosted Telco published price list

current at the date of acceptance of order and is exclusive of VAT and any other applicable sales tax or duty which will be added to the sum in question.

4.2  Hosted Telco will invoice the Customer for the Services as indicated on the Order Form, on or at any time  after performance commences and payment is due within 30 days of service of such invoice, or upon the termination of the Contract, whichever occurs first.

Time for payment will be of the essence.

4.3 Hosted Telco shall be entitled to vary the price for the Equipment or Services by giving the 4.4 Customer no less than 30 days notice in writing of its intention to do so. The Customer

shall be entitled to terminate the Contract if it does not accept such an increase, provided

that it notifies Hosted Telco of its refusal to accept a price variation within 14 days of

notification of the same by Hosted Telco. In the event that the Customer does not notify

Hosted Telco of its intention to terminate within 14 days, it shall lose the right to terminate the Contract.

4.5 All payments to be made by the Customer under the Contract will be made in full without any set-off, restriction or condition and without any deduction for or on account of any counter claim.

4.6  Payment is due within 21 days of the invoice date. The time of payment of all sums due to Hosted Telco under this Agreement shall be of the essence. If payment in full is not

received by Hosted Telco upon the due date, Hosted Telco shall be entitled to levy an

interest charge on any unpaid overdue balance based upon The Late Payments of Commercial Debts (Interest) Act 1998 and as amended and supplemented by the

Late Payment of Commercial Debts Regulations 2002, at the rate of 8% above the Bank

of England base rate. Interest will be charged on a daily basis. Should this account not be

settled when due, and thereby fall into arrears, and the Company instruct a Debt Collection Agency and/or a Solicitor to collect the said debt/account; all commissions, legal fees, costs, disbursements, Value Added Tax, and all sums that the Company is called upon to pay in order to collect the said outstanding debt/account, will be borne by the Debtor and/or the party or parties to the Conditions of Sale or to any contract that the Company has entered into with the Debtor.

4.7  Hosted Telco will be entitled to withhold perform ance of the Services and reclaim any

item of Equipment that it has hired to the Customer in the event that the Customer fails to

make payments under a Contract in accordance with this Condition 4.

5 INSTALMENTS

5.1 Hosted Telco may perform the Services in stages. Each stage will be a separate Contract

and no cancellation or termination of any one Contract relating to a stage will entitle the

Customer to repudiate or cancel any other contract or stage. Each separate stage will be

invoiced and paid for in accordance with the provisions of the Contract.

6   PERFORMANCE OF THE SERVICES

6.1 The services will be performed at the Service Point.

6.2 The Customer shall during the term of the Contract allow any authorized representative of

Hosted Telco access to its premises and its Equipment to enable it to carry out Hosted Telco obligations under the Contract. This shall include (but not limited to) inspection of the Equipment, removal of Equipment for non-payment or for any other purpose associated with the terms of the Contract.

6.3 Hosted Telco will use reasonable endeavors to perform each of the Customer’s orders for

the Services within the time agreed when the Customer place an order and, if no time is

agreed, then within a reasonable time, but the time of performance will not be of the

essence.

  1. RISK/TITLE

7.1 All Equipment will remain the property of Hosted Telco until the price of such Equipment has been paid in full but risk will pass to the Customer from the date of delivery.

7.2 The Customer will insure the Equipment and keep it insured throughout the term of the

Contract on an agreed value basis, but not for less than the full market value of the

Equipment, against all risks on a comprehensive policy without restriction or excess.

LIABILITY AND INDEMNITY

8.1    Hosted Telco does not exclude its liability (if any) to the Customer.

8.1.1          for breach of Hosted Telco obligations arising under section 12

Sale of Goods Act 1997 or section 2 Sale of Goods and Services Act

8.1.2          1982; for personal injury or death resulting from Hosted Telco

8.1.3          negligence; under section 2(3) Consumer Protection Act 1987;

8.1.4          for any matter which it would be illegal for Hosted Telco to exclude

(or to attempt to exclude) its liability; or

8.1.5          for fraud.

8.2    Except as provided in Condition 8.1 Hosted Telco will be under no liability to the Customer whatsoever (whether in contract, tort (including license), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever.

8.3    Except as set out in Condition 8.1 Hosted Telco hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, expressed (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favor of the Customer.

8.4    Each of Hosted Telco employees, agents and sub-contractors m ay rely upon and enforce the exclusions and restrictions of liability in Conditions 8.1 to 8.3 in that person’s own name and for that person’s own benefit, as if the words “its employees agents and sub-contractors” followed the word Hosted Telco wherever it appears in those conditions.

8.5 The Customer acknowledges that the above conditions of this Condition 8 are reasonable and reflected in the price which will be higher without those provisions, and the Customer will accept such risk and/or insure accordingly

8.6    .

The Customer agrees to indemnify, keep indemnified and hold harmless Hosted Telco from an against all costs (including the cost of enforcement), expenses, liabilities, injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic, loss of profits, loss of business, depletion of goodwill and light loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgements which incurs or suffers as a consequence of a direct or indirect breach of negligent performance or failure or delay in performance by the Customer of the terms of the Contract.

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9.1 FORCE MAJEURE

Hosted Telco will not be liable to the Customer for any failure or delay of for the

consequences of any failure or delay in performance of the Contract if it due to any event

beyond the reasonable control of Hosted Telco including, without limitation, acts of God,

war, industrial disputes, protests, fire, tempest, explosion, an act of terrorism and national

emergencies and Hosted Telco will be entitled to a reasonable extension of time for per

forming such obligations.

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10.1 TERMS AND TERMINATION

This Agreement shall on the date that Hosted Telco or its sub-contractors first makes

the Service available to the customer and shall remain in effect for the Minimum Term

and thereafter for further periods of one year unless and until terminated in accordance with this paragraph 10. On termination of this the Agreement for whatever reason the telephone service may be disconnected unless the Customer makes alternative arrangements with another provider of telephone services.

10.2 Each party may terminate this Agreement on not less than 90 days notice in writing to expire at the end of the Minimum Term or on each anniversary thereof Written termination notice to be sent strictly by recorded delivery to Hosted Telco, Access House, Manor Road, London, W13 0AS.

10.3     Without prejudice to its other rights under this Agreement, Hosted Telco m ay terminate     this agreement immediately if

10.3.1    the customer has committed a material breach of the agreement which is incapable of remedy or in the case of the remediable breach, the customer fails to remedy within a reasonable time of having been requested to do so by Hosted Telco or its sub-contractors

10.3.2    the customer is repeatedly in breach of this agreement

10.3    Without prejudice to its other rights under this Agreement, Hosted Telco m ay terminate this agreement immediately if

10.3.1    the customer has committed a material breach of the agreement which is incapable of remedy or in the case of the remediable breach, the customer fails to remedy within a reasonable time of having been requested to do so by Hosted Telco or its sub-contractors

10.3.2    the customer is repeatedly in breach of this agreement

10.3.3    any contract upon which Hosted Telco or its sub-contractors relies for the provision of the services is terminated (for whatever reason)

10.3.4    the site at which the service is provided is demolished; or

 

10.3.5    the customer is the subject of a bankruptcy order, or becomes insolvent, or makes an arrangement or composition with or assignment for the benefit of its creditors, or goes into voluntary (other than for reconstruction or amalgamation), or compulsory liquidation or a receiver or administration is appointed over all or any of its assets or ceases to carry on business.

10.4    Without prejudice to its other rights, Hosted Telco shall have the right immediately to terminate this agreement by notice in writing where the customer fails to make any payment when it becomes due to Hosted Telco

10.5    On termination of this agreement the customer shall ensure that Hosted Telco ( or its sub-contractors) is supplied with prompt access to remove any Service Equipment supplied. Where this agreement is terminated prior to the end of the Minimum term, other than for breach by Hosted Telco, the customer shall pay:

10.5.1    any outstanding charges due from the date of termination up to the end of the contracted period described in paragraph 10.1;

10.5.2    the cost for the de-installation of the Service Equipment; and

10.5.3    the sum equal to 30% of the average monthly call spend for the period up to the date of termination multiplied by the number of months remaining in the contracted period described in paragraph 10.1

10.6    On termination, any consequential reprogramming of the customer equipment shall be the customer’s responsibility and at the customer’s cost. Neither Hosted Telco nor its sub-contractors is responsible for any redecorating work at the customer’s premises.

10.7    On termination the provisions of paragraphs 1,4.3 to 4.6,6,8,9, 10.5, 10.6, 11.4, 11.5 and this paragraph 10.7 shall continue to apply.

  1. GENERAL

11.1    Time for performance of all obligations of the Customer is of the essence.

Time for performance of all obligations of Hosted Telco is not of the essence.

11.2    Each right or remedy of Hosted Telco under the Contract is without prejudice to any other right or remedy of Hosted Telco whether under the Contract or not.If any condition or part of

11.3    the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective, without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.

11.4    No failure or delay by Hosted Telco to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any other exercise of the same, or of any other right, power or remedy.

 

11.5    Save as set out in the Contract, these Terms and Conditions m ay also be varied or amended in writing and signed by a director of Hosted Telco.

11.6    Hosted Telco may assign, delegate, licence, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.

 

11.7    The Contract is personal to the Customer who may not assign, delegate, licence, hold on trust or sub-contract all or any of its rights or obligations under the Contract without Hosted Telco prior written consent.

11.8    The Contract contains all the terms which Hosted Telco and the Customer have agreed in relation to the Services and supersedes any prior written or oral agreements, representations or understandings 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 Hosted Telco w hich is not set out in the Contract.

 

11.9    Save as set out in Condition 8.4 the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a Party to it.

 

11.10    Any notice not in connection with the Contract will be in writing addressed to the other party at its registered offices, or principal place of business and will be delivered by hand, or first class or special delivery post. The notice will be deemed to have been duly served if delivered by hand, which left at the proper office for service or if made by pre-paid, first class post or special delivery post, 48 hours after being posted.

11.11    The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law. The English courts will have exclusive jurisdiction to settle any dispute which m ay arise out of, or in connection with the Contract. The parties agree to submit to that jurisdiction.

12   ALLOCATION, NUMBER PORTABILITY AND DAILY RATE RENTAL CREDIT

Porting away charges are charged at £10.00 per number.

  1. a) Hosted Telco will use reasonable endeavours to provide number portability to you, as soon as reasonably practicable and on reasonable terms, when you request so an

provided that:

  1. there are no technical or physical reasons preventing the portability of the number(s) requested by you; and
  2. you undertake to pay Hosted Telco’s Charges for such number portability if applicable;
  3. b) If you sign up to the Services and you request to transfer your number from another telephone provider, Hosted Telco will use reasonable endeavours to do this if reasonably

practicable and provided that your existing telephone provider agrees to release the number; and

  1. c) If it is not reasonably practicable, Hosted Telco will provide you with a new number(s).
  2. d) Any telephone numbers allocated to you by Hosted Telco (if any) do not belong to you. You accept that you do not acquire any rights whatsoever in such telephone numbers

and you must make no attempt to apply for registration of the same as a trademark, service mark, or domain name whether on its own or in conjunction with some other words or

trading style. You are not entitled to sell or agree to transfer to a third party any telephone number allocated to you by Hosted Telco without prior written permission

  1. e) Subject to clauses 14(a) and 14(b) above, we will credit you a daily-rate rental credit for each whole or part day we are late in providing the phone line service should the

porting of a number fail. The daily-rate rental credit is equal to the daily charge of your rental for each day that applies rental charge for three months.

  1. f) You must make your claim in writing within one month of us putting things right.