YB Communications Limited Trading as Northern Telecom

General Customer Terms and Conditions

Parties

(1)          YB Communications Limited Trading as Northern Telecom, a company registered in England and Wales (registered        number 08681410) whose registered office is at Phoenix House, The Old Church, Elland Road, Churwell, Morley, Leeds LS27 7TB (“We”, “Us”, or “Our”); and

(2)          [Company name            ] (“You” and “Your”).

Background

(A)          We are a provider of the Services (as defined below).

(B)          You wish to purchase the Services from Us in accordance with the terms of this Agreement.

1.             Definitions and interpretation

1.1          In this Agreement the following definitions shall apply unless the context otherwise requires and all derivatives of them shall have the corresponding meaning:

Account: Our records of Your payments to Us and details of any outstanding Charges, as well as Your personal details;           

Additional Services: any additional or supplemental services provided by Us to You other than the Services;

Age Restricted Services: such of the Services as may only be used or accessed by persons who are at least eighteen (18) years of age;

Business Day: any day other than a Saturday or Sunday or a public holiday in England;

Cancellation Fee: a fee charged by Us in the event that We terminate this Agreement due to Your conduct, or if You terminate this Agreement for any reason whatsoever during the Term. This fee may cover (without limitation) Your fixed periodic Charges for the remainder of the Term following termination, our administrative costs, costs incurred by Us in respect of Disconnection and Reconnection of the Services and Our payments to third party operators including Mobile Network Operators, Network Providers, stores or agents;

Charges: charges made by Us under this Agreement, including call charges in respect of access to, and use of, the Services as set out in each Order. These charges include (without limitation) fixed periodic charges, usage charges, minimum monthly spend charges, account administration fees, fees for Connection and Reconnection, a Cancellation Fee (where applicable in accordance with this Agreement) and any costs incurred in collecting outstanding payments from You;

Commencement Date: the date We accept Your Order. Acceptance may be provided by Us: 

(a)          counter-signing the Order; 

(b)          sending a confirmation letter to You via post or email; 

(c)           confirming by email following an Order; or 

(d)          confirming via a telephone Order;

Connected: connected to a relevant network in relation to the provision of the Services;

Connection and Reconnection: the process of giving You access to the Services. “Disconnection and Reconnection” shall have a corresponding meaning;

Content: information, communications, images and sounds, software or any other material contained on or available through the Services (including those contained within an SMS or MMS);

Customer: You, or another person named by You, who is authorised to incur Charges to Your Account on Your behalf;

Data Protection Legislation: means

(a)          Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR  ”);       

(b)          any other legislation in force from time to time in the United Kingdom relating to privacy and/or the processing of Personal Data; and

(c)           any guidance or statutory codes of practice issued by the Information Commissioner or the European Data Protection Board set up under GDPR in relation to such legislation;

Deposit: a refundable amount that We or our Network Provider may ask You to pay before We Connect or Reconnect You to the Network or before providing any of the Services;

Devices: such items as You may purchase from Us including, but not limited to, chargers and cradles;

EMS Commencement Date: the date set out in the Order, or as otherwise agreed in writing between the parties, being the date on which the commencement of the Enhanced Maintenance Services is planned to occur;

Enhanced Maintenance Services: means the Services set out at paragraph 3 of the Maintenance Services Supplemental Terms, provided always that the Out-of-Scope Activities and Excluded Services will in no circumstances comprise the Enhanced Maintenance Services;

Excluded Causes: means any of the following:

(a)           any breach by You of Your obligations under the Agreement (including any breach of paragraph 7 of the Maintenance Services Supplemental Terms);

(b)          any failure of computer hardware, where that hardware is not Maintained Equipment;

(c)           any defect in the manufacturer's design of the Maintained Equipment;

(d)          any work to, or replacement of, accessories, attachments or devices not configured by Us;

(e)           the removal of devices or attachments to the Maintained Equipment;

(f)           the use of faulty materials or workmanship in the manufacture of the Maintained Equipment, unless (and to the extent that) such materials or workmanship have been provided by Us;

(g)          the use of the Maintained Equipment with computer equipment or materials not supplied or approved in writing by Us;

(h)          any maintenance, alteration, modification or adjustment performed by persons other than Us or Our Personnel, unless approved in writing by Us;

(i)            the moving of the Maintained Equipment by You or any third party, other than Us or Our Personnel;

(j)            a defect arising directly or indirectly other than as a result of fair wear and tear, including in circumstances of wilful damage, negligence, abnormal storing or working conditions, or as a result of or in connection with the deployment of Malicious Software;

(k)           the use of the Maintained Equipment in breach of any of the provisions of the agreement under which the Maintained Equipment was supplied by the relevant Hardware manufacturer;

(l)            a failure, interruption, fluctuation or surge in the electrical power or its related infrastructure connected to the Maintained Equipment;

(m)         any defect or failure caused by Us re-loading the Customer Operating System onto the relevant Maintained Equipment;

(n)          a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Maintained Equipment, or an error or omission in the correct use of that air conditioning or other environmental controls by You and/or a party acting for or on behalf of you;

(o)          any accident (including but not limited to incidents involving water, fire and lightning), theft, neglect or misuse affecting the Maintained Equipment (or any part of it); or

(p)          any issue affecting the Maintained Equipment which constitutes an Excluded Cause in any part of the Agreement (including pursuant to any other Supplemental Terms).

Excluded Services: means any Services which We (acting reasonably) determine (either before or after the provision of the relevant services) became necessary directly or indirectly as a result of any of the Excluded Causes.

Fair Use Policy: Our fair use policy as amended from time to time;

General Customer Terms and Conditions: this document, including the Schedules to it;

Handset: a telephone handset, device, or SIM card which is approved by a Network Provider for Connection to its Network as supplied by Us to You as required and set out in an Order;

Hardware: any and all hardware or equipment including, but not limited to SIMs, router and phone hardware, supplied by Us to You under this Agreement and where payment for the same is made by You over the Term;

Maintenance Services Supplemental Terms: means the Supplemental Terms and Conditions applying to Services relating to the Maintenance Services, with the current version of them on the date of this Agreement being provided at Schedule 1;

Maintenance Services: means either (as the context requires): (i) the Standard Maintenance Services; and/or (ii) the Enhanced Maintenance Services; and/or (iii) the Premier Maintenance Services; and/or (iv) any other maintenance services which we have agreed to carry out from time to time (if any), whether as Additional Services or otherwise;

Messaging Services: any email, fax and voicemail services, SMS and MMS, personal information management and other message or communication facilities which let or allow You to communicate with others;

Minimum Contract Period: the period set out in the Order commencing on the date of Registration or the date of activation of the most recently provided Services, whichever is the later;

MMS: means multimedia messaging services;

MNO: the mobile network operator(s) providing network services to Our Network Provider;

Mobile Services: the mobile services selected by You in an Order and offered and provided by Us, which may include call services, Messaging Services, Storage Services, Age Restricted Services and Premium Services, which We agree to provide to You;

Network: the electronic communications system by which Our Services are made available in the United Kingdom including mobile, fixed, broadband, leased line, SIP trunking and other services;

Network Provider: such network provider(s) providing network services to Us as We shall determine at Our absolute discretion from time to time;

Normal Working Hours: 09:00 – 17:00 on a Business Day;

Order: the written document setting out details of the Services to be provided by Us to You which shall be provided online and which shall be electronically signed by You;

Out-of-Scope Activities: means any of the following:

(a)           electrical work external to the Maintained Equipment; and/or

(b)          cosmetic work (including painting or refinishing) to the Maintained Equipment.

Personnel: means any employee, agent, consultant, director and/or sub-contractor of the party concerned;

PIN: personal identification number;

PMS Commencement Date: the date set out in the Order, or as otherwise agreed in writing between the parties, being the date on which the commencement of the Premier Maintenance Services is planned to occur.

Price List: a list of Our current Charges which is updated from time to time and is available on Our website or at Your request;

Premier Maintenance Services: means the Services set out at paragraph 4 of Maintenance Services Supplemental Terms, provided always that the Out-of-Scope Activities and Excluded Services will in no circumstances comprise the Premier Maintenance Services.

Premium Services: means premium rate texts and voice calls which may be accessed via the use of Our Services;

Registration: our acceptance of Your Order and Our record of Your data prior to Connection.  “Register” shall have a corresponding meaning;

Retail Prices Index Figure: the retail price index or retail prices index figure published by the Office for National Statistics each month;

Roaming: an optional Service which allows You to use Your Handset and SIM to make use of Mobile Services on other operators’ Networks, usually in foreign countries;

Services: the services to be provided to You by Us as set out in the Order including, but not limited to, Mobile Services, landlines, broadband, leased line, SIP trunks and other services with recurring charges (including the Maintenance Services), such services to be provided on the basis of the relevant Order, these General Terms and Conditions and any applicable Supplemental Terms and Conditions;

SIM: a card or other device provided by Us which contains Your personal telephone number, and which is programmed to allow You to access the Network via a Handset;

SMS: means short message service;

Standard Maintenance Services: means the standard support services to be provided by Us pursuant to paragraph 2.2 of the Maintenance Services Supplemental Terms, provided always that any such services are not Excluded Services and/or Out-of-Scope Activities.

Storage Services: any Services which offer You storage capacity on the Network for storage of Content which You access from Us;

Subsequent Term: means the period set out in the Order;

Supplemental Terms and Conditions: means any supplemental terms and conditions in respect of certain Services which supplement and (unless expressly stated otherwise) incorporate this Agreement, as notified by Us to You on or prior to the Commencement Date (including, for these purposes, the Maintenance Services Supplemental Terms).

Suspension: the temporary disconnection, limitation or restriction of the provision of the Services. “Suspend” shall have a corresponding meaning;

Term: the Minimum Contract Period and any one (1) or more Subsequent Terms;

Third Party Content: content owned or licensed by third parties;

VAT: value added tax at the rate in force from time to time.

1.2          Clause and Schedule headings shall not affect the interpretation of this Agreement. 

1.3          References to clauses and Schedules are to clauses of and Schedules to this Agreement and references to paragraphs and Parts are to paragraphs and Parts of the relevant Schedule. 

1.4          The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules. 

1.5          This Agreement shall be deemed to incorporate these General Customer Terms and Conditions and the relevant Order, together with any Supplemental Terms and Conditions which apply to it, and any reference herein to “the Agreement” shall be construed as such. In the case of a conflict or ambiguity between: (i) these General Terms and Conditions; and (ii) any applicable Supplemental Terms and Conditions; and (iii) the Order, then a term contained in a document higher in the list (with (i) being the highest) shall have priority over one contained in a document lower in the list.

1.6          A reference to “this Agreement” or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied, superseded or novated (in each case, other than in breach of the provisions of this Agreement or the provisions of the agreement or document in question, as appropriate) from time to time, including (for clarity) any such variation, supersession or novation of any applicable Supplementary Terms. 

1.7          Unless otherwise expressly provided otherwise, defined terms used in any Order or Supplemental Terms and Conditions shall have the same meanings ascribed to them as defined in these General Terms and Conditions.

1.8          Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular. 

1.9          Unless the context otherwise requires, a reference to one (1) gender shall include a reference to the other genders. 

1.10        A "person" includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality). 

1.11        A reference to a “party” means an original party to this Agreement together with, in each case, their respective personal representatives, successors and permitted assigns. 

1.12        A reference to a “holding Company” or a “subsidiary” means a holding Company or a subsidiary (as the case may be) as defined in section 1159 of the Act.

1.13        A reference to "writing" or "written" includes faxes and other electronic form. 

1.14        Any words following the terms "including", " include"," in particular" or "for example" or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 

1.15        Where the context permits, “other” and “otherwise” are illustrative and shall not limit the sense of the words preceding them. 

1.16        A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time provided that, as between the parties, no such amendment, extension or re-enactment made after the date of this Agreement shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party.

1.17        A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.18        Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.19        Unless otherwise provided in this Agreement all covenants, undertakings, warranties and other obligations given or entered into by more than one party in this Agreement are given or entered into severally.

2.             Scope of the Services

2.1          If You are entering into an airtime contract with Us as part of the Services, You acknowledge and agree that We are providing You with the Services using approved mobile phones, SIMs, fixed lines, SIP trunks, broadband or other network resources provided by Our Network Providers.

2.2          Certain Services supplied by Us are subject to Supplemental Terms and Conditions which will (where applicable) form part of this Agreement and will supplement and (unless expressly stated otherwise in the relevant Supplemental Terms and Conditions) incorporate these General Customer Terms and Conditions.

2.3          The availability of the Mobile Services will be subject to the extent of the geographic coverage provided by the relevant Mobile Network Operator or Roaming partner.

2.4          If You purchase Handsets or Devices from Us in accordance with this Agreement, then cleared payment must be received by Us prior to the Handsets or Devices being dispatched. Risk in such Handsets or Devices shall pass to You at the point of dispatch. 

2.5          For ongoing services (such as mobile airtime, fixed lines, broadband and SIP trunking contracts) a Direct Debit must be in place for the payment by You of Our Charges. Cancellation of a direct debit mandate will result in immediate suspension of Your connections and may result in You being required to pay Us further Charges as set out in clause 5.11 below. 

2.6          If set out in an Order, this Agreement shall cover the supply by Us of Your Handset(s) or other Devices.  The manufacturers of Handsets and Devices are not related, connected, affiliated, recommended or authorised by or to Us in any way whatsoever. We provide no advice in respect of the choice or selection by You of any Handsets or Devices. 

2.7          We may from time to time publish a Fair Use Policy providing more detail about the rules for the use of some or all of the Services in order to ensure that the use of the Services is not excessive, to combat fraud and where Services which We may introduce require certain rules to ensure they can be enjoyed by You.  If We publish such a Fair Use Policy, We will let You know. Such a Fair Use Policy may be amended by Us at Our absolute discretion 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.

2.8          In the event that the provision of the Services includes the supply by Us of any Handsets and/or Devices, those Handsets and/or Devices shall be subject to the relevant manufacturer warranty only and no further guarantee or warranty whatsoever shall be provided by Us.

3.             Your obligations

3.1           It is Your sole and absolute responsibility to:

(a)           ensure that Handsets are only used to access the Services as permitted in this Agreement;

(b)          not use the Services, directly or indirectly, for any illegal, immoral or improper purposes whatsoever.

3.2          If provided by Us under this Agreement, any Hardware is and shall at all times remain Our property and You agree to: 

(a)           keep the Hardware safe and secure whilst it is in Your possession, custody or control; and

(b)          ensure that You are able to return any Hardware to Us, if required to do so by Us at any time, as set out in this Agreement. 

3.3          You must keep all PINs and passwords in respect of the use of the Services safe, secure and confidential and You may not share or make them available to any other person whatsoever.  You are also responsible for the safety and security of any Handsets or Devices. 

3.4          You should immediately change Your PIN or password if You become aware that someone else is accessing the Services on Your account without Your permission.

3.5          You may only use the Services:

(a)           in accordance with the terms of this Agreement; and

(b)          for the purposes of legitimate  communications.

3.6          You must not use the Services, the SIM or phone number or allow anyone else to use the Services, the SIM or phone number, fixed line, broadband or leased line for illegal or improper uses including, but not limited to:

(a)           fraudulent, criminal or other illegal activity;

(b)          any activity which breaches any another person’s rights including, but not limited to, copyright or other intellectual property rights;

(c)           copying, storing, modifying, publishing or distributing any commercial services, information, material or content (including, but not limited to, ringtones), except where We give You Our prior written permission to do so;

(d)          downloading, sending or uploading content of an excessive size, quantity or frequency (as determined by Us from time to time).  We will contact You if We consider, in Our absolute discretion, that Your use of the Services is excessive;

(e)           undertaking any activity which in any way 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 the Services;

(f)           falsifying or deleting any author attributions, legal or other proper notices or proprietary designation or labels of the origin or source of any software or other content contained in a file that You upload whilst using the Services; and

(g)          using or providing to others any directory, list, information or details about Customers.

3.7          You agree that You will at all times during the Term cooperate with Us and follow Our reasonable instructions to ensure the proper use and security of the Services and Your account. 

3.8          You agree to pay to Us a charge in accordance with this Agreement for any replacement Hardware required by You unless such Hardware is defective through faulty design or workmanship in which case a replacement will be provided free of charge.

4.             The Services

4.1          When providing the Services to You under this Agreement, We:

(a)           shall open an Account for You and, in respect of the provision of the Services, arrange to provide You with a phone number (and We may, at Our absolute discretion, agree to provide You with phone numbers upon Your written request);

(b)          shall grant You a limited licence for the Term to use any Hardware provided to You by Us to enable You to access the Services strictly in accordance with the terms of this Agreement; and

(c)           may recall or request the return of any Hardware  at any time during the Term for upgrades, modifications, where We reasonably consider there to have been any misuse of such Hardware, or when this Agreement terminates for any reason whatsoever. 

4.2          When providing the Mobile Services to You under this Agreement, We: 

(a)           shall open an Account for You and, in respect of the provision of the Mobile Services, arrange to provide You with a SIM and a phone number (and We may, at Our absolute discretion, agree to provide You with additional SIMs and phone numbers upon Your written request);

(b)          shall at all times retain ownership of any and all rights, interests and title in each SIM;

(c)           shall grant You a limited licence for the Term to use any SIM provided to You by Us to enable You to access the Mobile Services strictly in accordance with the terms of this Agreement; and

(d)          may recall or request the return of any SIM at any time during the Term for upgrades, modifications, where We reasonably consider there to have been any misuse of such SIM, or when this Agreement terminates for any reason whatsoever. 

4.3          Once You are Connected We will provide You with access to the Services and the Mobile Services.  Where We provide You with Mobile Services this will include mobile data transmission and the ability to make calls subject to the terms of the tariff agreed between You and Us.

4.4          When using the Services and/or the Mobile Services, You will be able to upload and send Your own Content using mobile data.  You hereby grant Us, Our Network Provider and/or its MNO, a royalty free, perpetual and worldwide licence to store, transmit, delete, remove, amend or otherwise deal in any way whatsoever with any Content You upload using the Services and/or the Mobile Services. 

4.5          We may, without limitation:

(a)           change, restrict, limit, alter or withdraw all or part of the Services and/or the Mobile Services from time to time at Our absolute discretion.  This may be due to a number of reasons including, but not limited to, changing technologies, obsolescence, new or different product features or developments, changing content providers or the need to remove, replace or modify content.  You may terminate this Agreement by giving Us not less than thirty (30) days’ written notice if this variation is material and likely to be of detriment to You as explained in clause 12.1; and

(b)          determine, at Our absolute discretion, how the Services and/or the Mobile Services are presented or delivered to the Handset or are otherwise made available to You at any time.

4.6          You hereby agree and acknowledge that:

(a)           You may only use a SIM provided by Us to You to obtain the Mobile Services from Us; and

(b)          each SIM provided by Us may only be used in Handsets which are enabled for the Mobile Services and are authorised by Us for Connection to Our Network.  Any attempt by You or any third-party to use a SIM other than as provided by us in one (1) or more Handsets may result in serious damage to such Handsets and may prevent You from being able to use it including, but not limited to, the inability to make emergency calls.  In these instances, We, Our Network Provider, or its MNO shall have no liability whatsoever to You or any other party for any loss, cost, expense, damage or usage problems resulting therefrom.

4.7          We will use reasonable endeavours to make the Mobile Services available to You during the Term. 

5.             Charges and payment

5.1          You shall pay Us any and all Charges due to Us for the provision of the Services, whether the Services are accessed or used by You or by any another person, with or without Your permission.

5.2          Your tariff may include ‘bundled’ or aggregated bundled allowances for text messages, data and voice calls.  We may ‘cap’ our bundled allowances.  This means that when you have used your allowance we will bar the relevant  service(s).  In the time between us requesting the bar and the bar becoming active on the network additional use may be allowed and Charges outside of your bundle may be incurred.  You will be charged for any such use.  If your bundled allowance is not capped, you may be charged for use outside of your bundle.  Our tariffs do not include text or MMS messages unless specifically stated.  These may be barred at the network level if possible.  If you do not want to incur charges for text or MMS messages You and Your users will need to avoid using the functionality on Your phone or device.  Some exclusions apply to ‘bundled’ allowances. For example voice call bundles do NOT include calls to premium rate, 08 or non UK numbers.

5.3          Unless otherwise expressly stated in this Agreement, We will invoice You:

(a)           in advance for periodic charges (usually on a monthly basis or such other period as We may determine in Our absolute discretion from time to time), Connection fees and service fees (where applicable); and

(b)          in arrears for usage charges (including, but not limited to, mobile or fixed line usage). For the avoidance of doubt, Charges arising as a result of Your usage of Our Mobile Services inside the United Kingdom are usually invoiced in the last monthly billing period, usage charges due to Your usage of Our Mobile Services outside the United Kingdom may be invoiced at such other times as We determine at Our absolute discretion. 

5.4          Your invoice may also include an amount to repay the cost of Your compatible Handset (depending on the payment scheme You have chosen with Us).

5.5          Unless expressly stated otherwise, the Charges payable for the Services under this Agreement are exclusive of VAT. Where the charges are expressed to be exclusive of VAT, You must pay to Us in addition to the Charges for the Services, an amount equal to any VAT payable in respect of the supply of the Services. The additional amount for VAT is payable at the same time as any part of the Charges for the Services is payable.

5.6          We will invoice You for the Charges on a periodic, usually monthly, basis but We reserve the right to change this charging period by giving You not less than fourteen (14) days’ written notice. Our invoices will state the amount of Charges due, the relevant VAT, acceptable payment methods and the due date for Your payment.

5.7          We will use Our reasonable endeavours to invoice You within the normal and relevant invoicing period, but We reserve the right to also invoice You in later monthly invoicing periods at Our absolute discretion.

5.8          We, from time to time, may also submit interim invoices or require an immediate payment from You if We believe, at Our absolute discretion, that You have exceeded a reasonable usage limit on Your Account.

5.9          In the event that You fail to pay any Charges due from You to Us in respect of Your account in accordance with the timescales set out in this clause 5, You will be considered to be in breach of this Agreement and We may Suspend the provision of the Services to You and/or Disconnect You from Our Services. In this event, You shall be required to immediately pay any and all outstanding Charges due at that time and for the remainder of the Term. 

5.10        We may, at Our absolute discretion, set a credit limit on Your account until You have established a good payment history with Us, or if You fail to pay Your account on time. We may also ask You to pay a Deposit to Us against future invoices if We consider, in Our absolute opinion, that You represent a credit risk.  We will let You know the applicable credit limit set by Us which We may increase, decrease or remove from time to time without notice, or the amount of the Deposit that We require from You.  If You exceed the credit limit We set, We may Suspend any or all of the Services You use until You have made such payment to Your Account as We may reasonably require. You should not use the credit limit set by Us for budgeting purposes as the amount You owe to Us under this Agreement is not capped or limited by any credit limit We set.

5.11        We may need to take legal or other debt collection action against You for any non-payment of Charges by You. This could mean You have to pay Our Charges as well as any costs, fees (including, but not limited to, reasonable legal fees) and expenses along with interest added on a daily basis.  We may charge interest at a rate of eight percent (8%) per annum above the base rate of Lloyds Bank Plc from time to time on any unpaid Charges calculated on a daily basis from the due date to the date of payment.

5.12        In the event of a failure of a Direct Debit payment  for any reason whatsoever or in the event of the  cancellation of Your Direct Debit instructions by You: 

(a)           there will be an immediate Suspension by Us of the provision of the Services to You; and 

(b)          a charge will be added to the Charges by Us of twenty-five pounds (£25.00) plus VAT for each failed Direct Debit payment attempt for Charges due under this Agreement; and

(c)           there will be an administration charge added to the Charges by Us in order to reactivate the provision of the Services. 

5.13        In the event that payment of the Charges is not made by way of Direct Debit, We shall add a charge of nine pounds and ninety-nine pence (£9.99) plus VAT to each invoice.

5.14        You agree to pay to Us any and all charges which any other supplier or third-party renders to Us and which is properly due from You:

(a)           if You approach that other supplier or third-party directly, or otherwise than through Us; or

(b)          for Connection or initiation of any of the Services or for cancellation of any of the Services.

5.15        If You fail to pay any amount due to Us under this Agreement in accordance with its terms then, if You are a company, the director who signs this Agreement on Your behalf will be personally liable on a joint and several basis with You for any and all outstanding Charges due from You to Us. We reserve the right to take action against such director at Our absolute discretion for any failure by You to pay the Charges due from You.

6.             Commencement and Term

6.1          This Agreement shall come into force on the Commencement Date. 

6.2          We shall begin the provision of the relevant Services from the Commencement Date for those Services (which for the Enhanced Maintenance Services is the EMS Commencement Date and for the Premier Maintenance Services is the PMS Commencement Date). We will provide those Services to you for the Minimum Contract Period and, unless this Agreement is terminated in accordance with clause 15 below, the provision of the Services will continue, and, unless You are a consumer or business with ten (10) or less employees (“SME”), this Agreement shall renew automatically for one (1) or more Subsequent Terms unless terminated by either party giving the other not less than ninety (90) days’ written notice, such notice to expire at the end of the Minimum Contract Period or any Subsequent Term only.

6.3          If You are a consumer or SME and You continue to use the Services following the expiration of the Minimum Contract Period then either You or We may terminate this Agreement by giving the other not less than thirty (30) days’ written notice.

6.4          In the event that You wish to terminate this Agreement before the expiration of the Minimum Contract Period or any Subsequent Term, then You shall pay to Us the balance of any Charges due for the unexpired Minimum Contract Period or Subsequent Term, as well as any other associated costs, expenses or charges which We shall notify to You including, but not limited to, Disconnection charges, as appropriate.

7.             Variations to Your Agreement or the Charges

7.1          We may, from time to time, vary any of the terms of this Agreement without Your prior consent, including the Charges. We will notify You in writing not less than thirty (30) days in advance if We decide, at Our absolute discretion, to:

(a)           discontinue the provision of the Services;

(b)          make any variations to this Agreement;

(c)           increase the fixed periodic charges for the Services (if applicable) by an amount which is more than the percentage increase in the Retail Prices Index Figure (or any future equivalent) in any twelve (12) month period.

7.2          You may terminate this Agreement for such variations as set out in clause 7.1 above by giving Us not less than thirty (30) days’ written notice.  Subject to clause 7.1 above, You may not terminate this Agreement if any variation or increase of the Charges:

(a)           is due to or relates to any changes in the law, government regulation or any licence which affect Us; or

(b)          relates solely to Additional Services.

7.3          If You carry on using Our Services after a variation in accordance with clause 7.1 commences, You will be deemed to have accepted the variation.

8.             Disruption to the Services

8.1          There may be circumstances when the Services are not continuously available, or the quality of the Services is affected, restricted or limited. As such, We make no representation, warranty or guarantee that the Services will be continuously available or fault-free throughout the Term. For the avoidance of doubt, provision of the Services may be affected, restricted or limited in situations which include, but are not limited to:

(a)           when We or any of Our service providers need to perform any upgrades, maintenance or any other work whatsoever on the network or which may in any way affect the provision of the Services;

(b)          when You move outside of the coverage area when using Our Mobile Services (in this case, calls may not be maintained and/or be interrupted or terminated); and

(c)           factors beyond Our reasonable control including, but not limited to, the features or functionality of Your equipment, regulatory requirements, lack of network capacity, interruptions to services from other suppliers or faults in other communication networks.

9.             Messaging and Storage Services. 

9.1          While using the Messaging Services, You must not send, upload or make available:

(a)           any information, material or content that is copyright protected or owned by any third-party, other than with Our prior written permission;

(b)          unsolicited bulk or commercial communications or other unauthorised communications, or knowingly send any viruses or code with the purpose or effect of causing any damage or harm; or

(c)           any information, material or content that is, or may reasonably be considered to be, obscene, offensive, abusive, defamatory, menacing, harassing, threatening or is unlawful in any way whatsoever.

9.2          We may, at Our absolute discretion, set limits for the use by You of some or all of the Services including, but not limited to, Messaging Services or Storage Services.  For the avoidance of doubt, We may limit the size of messages or storage space. These limits will be set out in Our Fair Use Policy.

9.3          While We have no obligation to, and do not, monitor the Messaging Services or Storage Services, if You exceed the use limits set out in Our Fair Use Policy, or We are made aware of any issues with Your use of the Services, (including, but not limited to, if We are made aware that You are using the Services in any of the ways prohibited in clause 9.1 above), We reserve the right to remove or refuse to send or store any Content on Your behalf.

10.          Responsible use of Age Restricted Services. 

10.1        By entering into this Agreement, you confirm that (i) you are eighteen (18) years of age or older, and (ii) if you are entering into this Agreement on behalf of a company or organisation that you are authorised to do so..  You hereby agree and acknowledge that You will: 

(a)           not show, display, make available or send any content, material of information from the Age Restricted Services to any person under eighteen (18) years of age; and

(b)          ensure that You have deactivated any access to Age Restricted Services if You allow anyone under eighteen (18) years of age use Your Handset.

11.          Responsible use of Services outside the United Kingdom

11.1        If You use the Services from or in a country outside the United Kingdom, Your use of the Services may be subject to laws and regulations that apply in such country.  We shall have no liability whatsoever for any losses, costs, expenses, claims or damages arising or resulting from Your failure to comply with such laws or regulations.

12.          Complaint by You

If You are unhappy about any aspect of Our Services, You should contact Our Customer Services team. We will investigate any complaint in accordance with Our complaints handling policy (as amended from time to time), after which We will contact You with the result of such investigation.

13.          Intellectual Property Rights

13.1        Any and all intellectual property rights whatsoever and howsoever arising including, but not limited to, copyright in the Services and the Content, shall at all times be the absolute property of and belong to Us, Our Network provider, its MNO, or Our licensed source, such as a third-party content provider, as appropriate.  We and they reserve any and all of Our and their respective right, title and interest in all such intellectual property rights anywhere in the world.

13.2        Our trademarks, Our Network Provider and its MNO’s trade mark and other related images, logos and names used in relation to the Services are, and shall at all times remain, proprietary marks of Us or them.  We and they reserve any and all of Our and their right, title and interest in such trademarks, images, logos and names.

14.          Suspension of the Services

14.1        We may, at Our absolute discretion and without notice to You, Suspend any or all of the Services if:

(a)           We reasonably believe that You have provided Us with false, incorrect or misleading details or information about You;

(b)          We advise You that Your excessive use of the Services is, in Our absolute opinion, causing problems for other users of the Services, and You are continuing to use the Services excessively;

(c)           We believe that Your Handset or SIM has been lost or stolen;

(d)          We reasonably believe that You have used the Services, the SIM(s) or a phone number associated with the use of the Services for illegal, immoral or improper purposes in contravention of Our responsible use requirements in clause 2.6 above;

(e)           We receive a complaint against You which We believe, in Our absolute opinion, to be genuine (including, but not limited to, if We receive a complaint that You are using the Services in any of the ways prohibited in this Agreement).  If this happens, We will deal with the complaint in the manner set out in clause 12;

(f)           We are required to Suspend Your use of the Services by the emergency services or other government authorities; 

(g)          We reasonably believe, in Our absolute opinion, that You have permitted or allowed Your Handset to be unlocked via any unauthorised manner and/or have not paid any relevant Charges due in accordance with the terms of this Agreement;

(h)          You have cancelled your direct debit agreement in relation to the payment of the Charges; or

(i)            You fail to pay the Charges in accordance with this Agreement.

14.2        We may turn off the Messaging Services provided to You under this Agreement if You fail to use them and they remain inactive for what We consider, in Our absolute opinion, to be an extended period of time.  We will provide you with notice before turning off the Messaging Services.  If We do turn off the Messaging Services, We will have no obligation to maintain any of the content in Your Messaging Services, or to forward any unopened or unsent messages to You, or anyone else.

14.3        If We Suspend any or all of the Services for any reason whatsoever, You will still be able to make emergency calls (unless they have been Suspended at the request of the emergency services, or as otherwise set out in this Agreement).

14.4        If the Services provided to You are Suspended, We may agree to Reconnect You if You ask Us to do so in writing. There may be a Reconnection Charge for this.

15.          Termination

15.1        We may, by written notice to You, terminate this Agreement with immediate effect, if:

(a)           You fail to pay any amount on the date due in accordance with this Agreement and such payment remains unpaid for a period of fourteen (14) days or more; or

(b)          You commit a remediable material breach of this Agreement and fail to remedy such breach within fourteen (14) days of You receiving notice thereof from Us; or

(c)           You suspend, or threaten to suspend, payment of Your debts as they fall due or You admit Your inability to pay Your debts or are unable to do so in accordance with section 123 of the Insolvency Act 1986; or

(d)          You commence negotiations with all or any class of Your creditors with a view to rescheduling any of Your debts, or You make a proposal for or enter into any compromise or arrangement with Your creditors, other than for the sole purpose of a scheme of solvent amalgamation or restructuring; or

(e)           a petition is filed, a notice is given, a resolution is passed or an order is made against You for or in connection with Your winding up other than for the sole purpose of a scheme of solvent amalgamation with one (1) or more other companies or a solvent restructuring; or

(f)           an application is made to a 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 You; or

(g)          the holder of a floating charge over Your assets has become entitled to appoint or has appointed an administrative receiver; or

(h)          a person becomes entitled to appoint a receiver over Your assets; or

(i)            a creditor or encumbrancer of You attaches or takes possession of, or distress, execution, sequestration or other such process is levied or enforced on or used against, the whole or any part of Your assets and such attachment or process is not discharged within fourteen (14) days; or

(j)            any event occurs, or proceeding is taken, with respect to You in any jurisdiction to which You are subject which has an effect equivalent or similar to any of the events mentioned in clause 15.1.3 to 15.1.9 inclusive above; or

(k)           You suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of Your business and We believe, in Our reasonable opinion, that You are unlikely to be able to pay any amounts payable by You to Us; or

(l)            You are subject to a change of control other than as a result of a solvent restructuring; or

(m)         if You are a living person, in the event of Your bankruptcy or death; or

(n)          if We reasonably believe that the use of the Services by You will or may jeopardise the operation of Our, Our Network Provider’s, or its MNO’s network; or

(o)          We, in Our absolute opinion, consider Your conduct in relation to this Agreement to be improper, unlawful, unacceptable or inappropriate; or

(p)          We no longer have access to other operators’ networks which We need in order to provide the Services, or if We are no longer able to provide the Services due to factors beyond Our reasonable control, or because We cease to carry on Our business.

15.2        Without prejudice to the provisions of this clause 15, the We may terminate this Agreement at any time by giving thirty (30) days’ written notice to You.

15.3        Upon termination of this Agreement for any reason any and all of Our accrued rights shall continue and be exercisable by Us.

16.          Effects of termination

16.1        In the event of termination of this Agreement for any reason whatsoever: 

(a)           We shall have the right to transfer Your Account to another service provider, or at Our sole discretion, to close Your Account and Disconnect You in which event You will not be able to use the Services or make emergency calls.  This is without prejudice to Your rights under clause 17 to request a transfer of Your Account to another supplier;

(b)          You must immediately pay any and all Charges You owe to Us up to the date of termination of this Agreement. In the event that We terminate this Agreement due to Your conduct, the Charges due to Us from You will include a Cancellation Fee as determined by Us from time to time;

16.2        The termination of this Agreement for any reason whatsoever shall not affect any provision of this Agreement which is expressed or by implication intended to survive or operate in the event of termination of this Agreement.

16.3        Save as expressly set out in this Agreement, termination of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law and shall not affect any statutory or accrued rights or liabilities of either party.

17.          Transfer of Services to another Supplier

17.1        If at any time You ask Us to transfer any of the Services to another supplier, then You remain responsible to Us for all amounts payable prior to such transfer, and You will immediately pay Us that amount on receipt of Our invoice.

17.2        The provision of Services by Us shall cease immediately when We transfer any Accounts to another supplier.

17.3        We will endeavour to invoice You for the Services provided up to the date of transfer of Your Account to another supplier within the next normal invoicing period, but We reserve the right to issue subsequent invoices in relation to any uninvoiced fees and/or Charges.

17.4        If We become aware of any other proper and due Charges (including, but not limited to, fees payable to any other supplier) for the provision of Services up to the date of transfer, or We resolve any dispute so that any liability of Ours relating to the Services provided is quantified, then You will immediately pay Us all such amounts on receipt of Our invoice.

17.5        We will credit You with any amount credited to Us by another supplier for Services provided up to the date of transfer.

18.          Liability

18.1        All of Our obligations to You relating to the Services are set out in this Agreement.  If You wish to make any variations to this Agreement, You must first obtain Our prior written agreement.

18.2        Except as set out in clause 18.3:

(a)           any and all warranties, representations, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement; 

(b)          in the event of an issue with the provision of the Services, Our liability to You shall be calculated by dividing the relevant month’s Charges by the total number of hours in that month, and then multiplying that amount by the number of hours during which the provision of the Services was affected;

(c)           Our, entire liability to You for something We do or don’t do will be limited to one (1) month’s Charges during each period of twelve (12) months during the Term;

(d)          We shall not be liable for any loss of income, business or profits, or for any loss or corruption of data in connection with the use of the Services; 

(e)           We shall not be liable for any loss, cost, expense, claim, proceeding or damage that was not reasonably foreseeable when You entered into the Agreement.

18.3        Nothing in this Agreement removes or limits Our liability for fraud, for death or personal injury caused by Our negligence or for any liability which can’t be limited or excluded by applicable law. 

18.4        Whilst we will use reasonable endeavours to ensure the accuracy, quality and timely delivery of the Services:

(a)           We, Our Network Operator and its MNO, accept no responsibility whatsoever for any use of, or reliance on, the Services or their Content, or for any disruptions to, or any failures or delays in, the Services.  This includes, without limitation, any alert Services or virus detection Services; and

(b)          subject to Section 18.3 We, Our Network Operator and its MNO, do not make any representations as to the accuracy, comprehensiveness, completeness, quality, currency, error-free nature, compatibility, security or fitness for purpose of the Services or their Content.  The Services and the Content are provided to You on an ‘as is’ basis; and

(c)           We, Our Network Operator and its MNO, are not providing You with advice of any kind (including, without limitation, legal, investment, accounting or medical advice). 

18.5        We, Our Network Operator and its MNO, will not be liable:

(a)           for any loss, cost, expense, claim, proceeding or damage You may incur as a result of someone using Your PINs or passwords, with, or without, Your knowledge; or

(b)          if We or they cannot carry out Our duties, or provide the Services, due to circumstances beyond Our reasonable control.

18.6        You may be able to use the Services to:

(a)           upload, email or transmit content using the Services; and\or

(b)          access Content which is branded or provided by third parties, and/or to acquire goods and/or services from others. 

18.7        Where We, Our Network Provider or its MNO provide You with such access, Our sole responsibility shall be to transmit the relevant Content to You and neither We nor they prepare, check, review or exercise any control whatsoever over such Content, goods or services.  We, Our Network Provider and its MNO are not responsible or liable in any way whatsoever for, and do not endorse, any of this Content, goods or services.

18.8        This clause 18 shall survive the termination of this Agreement for any reason whatsoever.

19.          Privacy Notice and Your Information

19.1        We will only use Your personal information in accordance with this clause 19 and the Data Protection Legislation. 

19.2        Whenever You provide Us with personal information about Yourself You agree that it will be true, complete and accurate. You must tell Us if this information changes.

19.3        If You provide Us with information about another individual or company or register to use the Services in the name of another individual or company, You must have their agreement to do so or be acting with legal authority.

19.4        If We reasonably believe that You have supplied Us with false or inaccurate information, or if We suspect fraud, We may delay Your Connection or suspend Your access to the Services until an investigation has been completed to Our satisfaction.

19.5        By using the term “Your Information” in this Agreement, We mean information that You give Us or that We obtain about You as a result of any Order or registration for, and use of the Services. It may include Your name, current and previous address(s), date of birth, telephone and fax numbers, gender, email address, employment and lifestyle information, bank and credit or debit card information, Company Name, Number, Vat Number, Company Address and information obtained from credit reference and fraud prevention agencies, marketing organisations and those who provide services to Us, and may include information from other countries.

19.6        While You are a Customer, We and/or those who provide services to Us will also acquire and process information about Your use of the Services, including Location Data, Your Communications Data, Your mobile telephone number the unique code identifying Your phone and SIM, and Your account information including contact history notes. This is required for the provision of the Services to You and You hereby acknowledge and consent to this information being acquired and processed by Us or on Our behalf.

19.7        Some of Your Information may be classified as “sensitive personal data” (such as visual or hearing impairments) and We will ask Your permission if We wish to use or share this information.

19.8        We may process Your Information for a number of purposes including:

(a)           in relation to Credit Referencing, Identity Checks and Fraud Prevention where We:

(i)            will make searches about You at credit reference agencies who will supply Us with credit information, as well as information from the Electoral Register, to help Us to decide whether to accept Your Order or future Orders, and to verify Your identity;

(ii)           will disclose details of this Agreement, the payments You make under it, account balances and information about any default, dispute, and debts to credit reference agencies. We will also disclose details of any change of address reported to Us or of which We become aware. Credit searches and the information supplied by Us and held by credit reference agencies are used by Us and other organisations to help make decisions about other credit applications by You or other members of Your household with whom You are linked financially to trace debtors, recover debts, to prevent and detect fraud and to manage Your account;

(iii)          may check and share Your details with fraud prevention agencies and We will record (and pass to the fraud prevention agencies) details of any false or inaccurate information provided by You or where We suspect fraud. Records held by fraud prevention agencies will also be used by Us and other organisations to help prevent fraud and money laundering, for example. Those fraud prevention agencies may disclose information to law enforcement agencies where requested and necessary for the investigation of crime. We and other organisations may access and use (from a country other than the UK) the information recorded by fraud prevention agencies;

(iv)          may use and share Your details for the collection of any debts owed by You. This may include the use of debt collection agencies to collect debts on Our behalf or may include the assignment of debts to a third-party company. The assignment of debts will involve the sale of Your debt and account information to a third-party company – this information may include Your name, address and contact data, year of birth, debts owed, payment history and other information necessary to help recover the debt; and

(v)           may also share information with other communications service providers and network operators for the detection and prevention of theft and fraud. You can ask Us at any time for details of the credit reference and fraud prevention agencies to whom We disclose and obtain information about You.

(b)          for Marketing purposes to:

(i)            carry out analysis of Your Information, in order to develop Our relationship with You, to develop and personalise the Services and to present and deliver these to You;

(ii)           keep You informed about the Services, developments, pricing tariffs, special offers, and any discounts or awards which We believe may be of personal interest to You, or which You may be entitled to. We may keep You up to date directly to Your Phone, and by post, telephone and by electronic messaging such as mobile text and picture message, email voice, audio and videomail subject to any preferences indicated by You. You can contact Us at any time to ask Us not to use Your location or “communications data” for marketing purposes or if You would prefer not to receive direct marketing information, or simply to update Your preferences by writing to or calling Our Customer Services, or by sending an email to Us at marketing@northerntelecom.co.uk; 

(iii)          to tell You about the products and special promotions of carefully selected partners (subject to Your chosen preferences) and allow You to receive advertising and marketing information from them but without passing control of Your information to the third party concerned. Any such third party shall process Your Information strictly in accordance with all relevant data protection laws. You can update Your preferences at any time as described above in clause 19.8.3;

(iv)          carry out market research;

(v)           carry out activities necessary to the operation and legitimate interests of Our business, including system testing, network monitoring, staff training, quality control and any legal proceedings; and

(vi)          carry out any activities or disclosures to comply with any regulatory, government or legal requirement.

19.9        We may enter Your name, address and telephone number in a publicly available directory enquiry service and directories operated by Us or by a licensed third-party operator such as BT, subject to Your preferences and only where You have given Us permission

19.10     We may share Your information with other members of Our group of companies, and with Our, or their, partners, associates, agents and contractors who provide services to Us, and for the purposes of pursuing Our legitimate interests, including people who are interested in buying Our business. These may include people and companies outside the European Economic Area (the “EEA”) or the UK.

19.11     We may also use third-party data processors, some of whom may be based outside the EEA, to process Your Information on Our behalf and who provide specific services to Us and Our group of companies. Certain services may be provided by group companies in India or Australia. If We do this, We will ensure that Your Information is processed to the same UK standards adopted by Us.

19.12     If You use Our 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.

19.13     When You make a call, the calling line identity (“CLI”) of Your Phone (“Your mobile number”) will be displayed on the phone of the person You call. If You do not wish for Your CLI to be displayed and/or transmitted, You should consult Your user guide or contact Our Customer Services. Your CLI cannot be blocked when calling the emergency services, or when sending a text, picture, or video message.

19.14     We may retain Your information for as long as is necessary for the purposes set out in this clause 19 and the remaining terms of this Agreement, and until Charges for Services cannot be lawfully challenged and legal proceedings may no longer be pursued. Generally, We will keep Your communications data for up to one (1) year after the termination of this Agreement. Your account information will be kept after Your relationship with Us ends as necessary to comply with legal and regulatory obligations.

19.15     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 strictly Your responsibility.

19.16     You have the right to obtain a copy of Your Information which We may hold about You free of charge. Please write to the Data Protection and Privacy Officer, at our address shown on Our Website. Alternatively, please email us at any of the email addresses shown on our website. We will ask You to provide proof of Your identity and residence before complying with this clause 19.16. We may, in certain circumstances, refuse to comply with a request from You under this cause 19.16.

19.17     If You have any questions about clause 19.16 or the way in which Your Information is processed, please contact the Data Protection and Privacy Officer, by writing or sending an email to the address on Our Website.

20.          Force majeure

20.1        In this Agreement, an “Event of Force Majeure” shall mean any cause, event or contingency beyond Our reasonable control including, but not limited to, acts of God, pandemic, government or locally enforced restrictions (such as restrictions upon movement or lockdown), outbreaks of hostilities, riots, civil disturbances, fire, explosion, flood or severe weather, power failure, failure of telecommunications lines (including IT/data links), theft and/or malicious damage.

20.2        If We are prevented or delayed in carrying out any of Our obligations in respect of the provision of the Services to You by an Event of Force Majeure, We shall use all reasonable endeavours to mitigate the effects of such an Event of Force Majeure, but We shall not be under any liability to You whatsoever for any losses, costs, expenses, claims, actions, proceedings or damages suffered or incurred by You in any way whatsoever and howsoever caused as a result of such an Event of Force Majeure.

20.3        If the Event of Force Majeure prevents Us from performing Our obligations under this Agreement for a period in excess of three (3) months, then We may immediately terminate this Agreement without liability to You. For the avoidance of doubt, in these circumstances You shall be liable to pay the Charges for any and all Services provided by Us hereunder up to and including the date of termination in accordance with this clause 20.3.

21.          Confidentiality

You agree and undertake that, during the term of this Agreement and thereafter, You will keep confidential and will not use for Your own purposes, nor without Our prior written consent, disclose to any third party any information of a confidential nature (including, but not limited to, trade secrets and information of commercial value) which may become known to You from Us (“Confidential Information”) unless the information is public knowledge or already known to You at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into Your possession from a third party.

22.          Anti-bribery

22.1        For the purposes of this clause 22 the expressions 'adequate procedures  ' and '   associated with ' shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

22.2        You and We shall comply with applicable Bribery Laws including ensuring that You and We have in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:

(a)           all of the relevant party’s personnel;

(b)          all others associated with that party; and

(c)           all of that party’s subcontractors;

involved in performing this Agreement so comply.

22.3        Without limitation to clause 22.2, neither You nor We shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment or allow any such to be made or received on Your or Our behalf, either in the United Kingdom or elsewhere and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

22.4        You and We agree that we shall immediately notify the other as soon as either of us becomes aware of a breach or possible breach of any of the requirements in this clause 22.

23.          Anti-slavery

23.1        You undertake, warrant and represent that:

(a)           neither You nor any of Your officers, employees, agents or subcontractors has:

(i)            committed an offence under the Modern Slavery Act 2015 (an “MSA Offence”); or

(ii)           been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or

(iii)          is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

(b)          You shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;

(c)           You shall notify Us immediately in writing if You become aware or have reason to believe that You, or any of Your officers, employees, agents or subcontractors have breached or potentially breached any of Your obligations under clause 23.1 such notice to set out full details of the circumstances concerning the breach or potential breach of Your obligations.

23.2        Any breach of clause 23.1 by You shall be deemed a material breach of this Agreement and shall entitle Us to terminate this Agreement with immediate effect.

24.          Notices

24.1        Notices given under this Agreement must be in writing and may be delivered by hand, by courier or first-class post, by fax or e-mail:

(a)           to Us, at the relevant address provided during the Registration process or any alternative address which We notify to You in writing from time to time; and

(b)          to You, at the relevant postal or email address provided as part of the details which You submit during the Registration process or any alternative address that You provide to Us in writing from time to time.

25.          Third Party Rights

No person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.

26.          General

26.1        This Agreement constitutes the entire Agreement between Us and You and there are no other oral or written understandings or agreements between Us and You in relation to the subject matter of this Agreement. 

26.2        If You, We or Our Network Provider or its MNO delay, or do not take action to enforce any respective rights under this Agreement, this does not stop Us, You or them from taking action later.

26.3        If any of the terms in this Agreement are held by a court of competent jurisdiction not to be valid or legally enforceable, then such terms shall be amended or deleted to the minimal extent necessary to make them valid or legally enforceable and all of the other terms of this Agreement will not be affected. 

26.4        We may assign or transfer any of Our rights and obligations under this Agreement, provided that Your rights under the Agreement or any guarantees given by Us to You are not affected. 

26.5        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 the continued provision of the Services.

26.6        You confirm that You have full contractual capacity and authority to agree to and enter into this Agreement.

26.7        This Agreement shall be governed by and construed in accordance with the law of England and Wales. The parties hereby agree to submit to the exclusive jurisdiction of the English courts.

Schedule 1        Maintenance Services Supplemental Terms and Conditions

1.             Scope

1.1          These Maintenance Services Supplemental Terms and Conditions supplement and (unless expressly stated otherwise) incorporate the General Customer Terms and Conditions and the relevant Order in respect of the Maintenance Services to be provided by Us to You under the Agreement.

1.2          These Maintenance Services Supplemental Terms and Conditions apply only to the supply by Us of the Maintenance Services and Your use of those Services. Any other Services supplied by Us to You remain subject to the terms of the Agreement (including any applicable Supplemental Terms) applicable to those Services.

1.3          The additional definitions set out at paragraph 8 shall apply in these Maintenance Services Supplemental Terms and Conditions. Any defined terms in the General Customer Terms and Conditions or the relevant Order will have the same meaning in these Maintenance Services Supplemental Terms and Conditions, unless stated otherwise.

1.4          We will not be responsible for providing, or liable to You in respect of, any Out-of-Scope Activities, such activities being Your sole responsibility.

2.             Standard Maintenance Services

2.1          We will provide You as part of the Service with the Standard Maintenance Services during Normal Working Hours (only).

2.2          The Standard Maintenance Services comprise the following Services:

(a)           Our Personnel will provide You with first level telephone support in relation to any Service(s) to which You have subscribed (for example SIP (session initiation protocol) trunks and/or hosted PBX (Private Branch Exchange) telephony equipment and associated services (Standard Telephone Support);

(b)          to the extent that such Service(s) are expressly set out in the relevant Order (and/or as otherwise agreed between us in writing), Our Personnel may arrange on Your behalf for support to be provided at the Location by any relevant third party network or support provider (if any), for example (in the case of broadband internet support) BT Openreach. Any such third party network or support providers (External Providers) are entirely independent of Us and, as such, We accept no liability for any act or omission of any External Provider, who will provide services to you directly and in accordance with their own service level agreements and other terms and conditions from time to time; and

(c)           to the extent that We are able to do so, We will pass on to You the benefit of any warranty from the relevant manufacturer of the Hardware. If you have a claim under any Hardware manufacturer’s warranty because the relevant Hardware is not in Good Working Order (Affected Hardware), then you may either administer the claim yourself, or we may administer the claim on your behalf, subject always to the following conditions:

(i)            you acknowledge and accept that the relevant Hardware manufacturer is entirely independent of Us, and will provide services to You in their own independent capacity and in accordance with their own service level warranty and other applicable agreements from time to time. As such, we accept no liability for any act or omission of any of the Hardware manufacturers;

(ii)           the reason for the Affected Hardware not being in Good Working Order is not due to an Excluded Cause;

(iii)          You have provided us in a reasonable amount of detail with an explanation as to why you believe the Affected Hardware is not in Good Working Order;

(iv)          We have reviewed that explanation and (acting reasonably) we have notified you that we are satisfied that the Affected Hardware may not be in Good Working Order and that you may be able to make a claim under the relevant manufacturer’s warranty in order to restore the Affected Hardware to Good Working Order;

(v)           You have returned (at your own risk and cost) the Affected Hardware either: to Us at Our normal trading address; or (as reasonably directed by Us to You in writing) to the relevant Hardware manufacturer, or to one of the relevant manufacturers’ service or maintenance contractors at such address as we may notify to You;

(vi)          you have agreed to (and do) pay all costs for the Affected Hardware to be returned to You, once the relevant warranty claim process has been concluded by the relevant manufacturer or its Personnel (including in cases where the manufacturer concludes that the reason for the Affected Hardware not being in Good Working Order is not covered and/or cannot be rectified under its warranty); and

(vii)         if the Affected Hardware needs to be shipped to another location for further diagnosis and/or repair, then you will also be liable for those additional shipping costs, provided that you have agreed to them in writing in advance (and if such costs are not covered by the relevant Hardware manufacturer). For clarity, paragraph 2.2(c)(vi)  shall apply to the return to You of such Affected Hardware, notwithstanding that it has been shipped to another location for further diagnosis and/or repair.

2.3          In addition to the Standard Telephone Support, you may also purchase an additional Service for us to provide first level telephone support to You outside of Normal Working Hours and in relation to any Service(s) to which You have subscribed (Out of Hours Telephone Support). Provided that You remain up to date with payment of every part of the relevant Charges due and payable to Us at all times, we will make the Out of Hours Telephone Support available to you on a 24/7/365 basis.

3.             Enhanced Maintenance Services

3.1          If, and to the extent that, Enhanced Maintenance Services are expressly identified in the Order, or We otherwise agree in writing to provide them to You, We will provide You with the Enhanced Maintenance Services during Normal Working Hours (only) at the Location.

3.2          Subject to paragraphs 3.1, 3.3 and 3.4, on You informing Us, or Us otherwise becoming aware during Normal Working Hours, that the Maintained Equipment is malfunctioning, or has failed, or is otherwise not in Good Working Order, We will perform the Enhanced Maintenance Services by using Our reasonable endeavours to:

(a)           attend the Location as soon as is reasonably practicable (and in any event within 5 Business Days of you notifying us of the issue through the Standard Telephone Support Service) during Normal Working Hours; and

(b)          subject to paragraph 3.3, perform Corrective Maintenance upon the relevant Maintained Equipment as soon as we determine it is necessary and reasonably practicable.

3.3          The Enhanced Maintenance Services do not include the repair or replacement of any Hardware that is not in Good Working Order or otherwise defective. That notwithstanding, if, whilst carrying out Corrective Maintenance to the relevant Maintained Equipment, it becomes apparent to Us that any Hardware which is not in Good Working Order may still be covered by the relevant manufacturer’s warranty (as referred to at paragraph 2.2(c), then We will make you aware of this, and paragraph 2.2(c) will apply to such Hardware (save that in cases where we have become aware of a potential claim under a manufacturer’s warranty pursuant to this paragraph 3.3, then you will be deemed already to have complied with your obligations pursuant to paragraph 2.2(c)(iii) and 2.2(c)(iv)). If the relevant Hardware is subsequently replaced or repaired by the relevant manufacturer we may (provided that it does not require any Out-of-Scope Activities or Excluded Services and it is returned to Us at Your own cost and risk) re-install such Hardware as part of the Enhanced Maintenance Services.

3.4          The Enhanced Maintenance Services include up to five (5) attendances at the Location to provide Corrective Maintenance in any one EMS Contract Year. If any additional attendances are required for these purposes in any EMS Contract Year, we will only agree to carry them out if we have agreed with you in writing to do so.

3.5          The Enhanced Maintenance Services do not include any support, maintenance or other services in relation to complex, multi-site networks or P2P (peer to peer) Wi-Fi networks. For the purpose of this paragraph 3.5, we will have sole discretion (acting reasonably) to determine whether or not a network is a complex, multi-site network.

4.             Premier Maintenance Services

4.1          If, and to the extent that, Premier Maintenance Services are expressly identified in the Order, or We otherwise agree in writing to provide them to You, We will provide You with the Premier Maintenance Services as follows:

(a)           Our Personnel will provide (in addition to the Standard Telephone Support) first level telephone support in relation to any Premier Maintained Equipment and to any Service(s) to which You have subscribed both during and outside of Normal Working Hours on a 24/7/365 basis.

(b)          upon You informing Our telephone support team (as referred to at paragraph 4.1(a)) that the Premier Maintained Equipment is malfunctioning, or has failed, or is otherwise not in Good Working Order, We will use Our reasonable endeavours to:

(i)            attend the Location as soon as is reasonably practicable and in any event within 24 hours of you notifying us of the issue pursuant to paragraph 4.1(b) (which may, if we determine in our sole discretion that the need to carry out Corrective Maintenance is an emergency, and subject to you procuring for us access to the Location, be either during or outside of Normal Working Hours); and

(ii)           use Our reasonable endeavours (while in attendance at the Location) to restore any malfunctioning or failed Premier Maintained Equipment to Good Working Order. Where this is not reasonably practicable, We will either arrange for a further visit to the Location [within Normal Working Hours] to complete the repair, or remove the Premier Maintained Equipment (or part of it) for repair off-site (in which case We may at Our sole discretion provide substitute equipment (Substitute Equipment) to You).

4.2          Where We determine (at Our sole discretion, acting reasonably) that it will be more cost effective to replace an item of the Premier Maintained Equipment rather than performing Corrective Maintenance to and/or repairing or replacing it, We will provide You with a replacement item which We  consider (acting reasonably) to be of an equivalent standard to the relevant Maintained Equipment and You will pay for the cost of the replacement item.

4.3          The Premier Maintenance Services include up to 12 attendances at the Location to provide Premier Maintenance Services in any one PMS Contract Year. If any additional attendances are required for these purposes in any PMS Contract Year, we will only agree to carry them out if we have agreed with you in writing to do so.

5.             Additional Services

5.1          We are not obliged to perform any Excluded Services. That notwithstanding, if we agree in writing with You to perform any Excluded Services, We may charge, and You will pay, the Additional Services Fees in respect of that work in accordance with this paragraph 5.

5.2          Additional Services will be charged at the Additional Services Rates for each of Our Personnel reasonably required to perform the relevant Additional Services.  Additional Charges will be calculated by reference to the relevant information set out in the Order, or as otherwise notified to You by Us in writing from time to time.

6.             Our conduct at the Location, spare parts, consumables and Substitute Equipment

6.1          We will procure that Our Personnel will, while on site at the Location, comply with Your reasonable health and safety and security policies, provided that these policies have been brought to the attention of Our Personnel.  Our attendance at the Location will be subject to our ability to carry out any work in a ‘Covid-safe’ manner.  If we are unable to work in a manner that we consider to be safe for Our Personnel, our Personnel will leave (or, as the case may be, not enter) the Location and there may be a charge to return to the Locationat a later stage.

6.2          In performing the Maintenance Services and subject to paragraph 6.3, We will use Our reasonable endeavours to supply spare parts (on what We consider (acting reasonably) to be a materially like-for-like basis) required to restore the relevant Hardware which is the subject of the relevant Maintenance Services to Good Working Order.

6.3          All spare parts and/or replacements provided by Us to You will become part of the relevant Hardware. On payment by You in cleared funds of every part of the relevant Charges due and payable to us at the relevant time (but not before), We will assign to You, with full title guarantee and free from all third-party rights, all spare parts and/or replacements provided by Us. All parts and components removed from any Hardware by Us in the course of performing the Maintenance Services will no longer constitute part of that Hardware and will be Our property. You will assign to Us, with full title guarantee and free from all third-party rights, all parts and components removed from such Hardware by Us in accordance with the Agreement (including this paragraph 6.3).

6.4          We will have no obligation to supply items which We consider (acting reasonably) to constitute consumables, which will include (but not be limited to): power adaptors or batteries for wireless devices (such as mobile phones or wireless desk phone handsets). (“Consumables”).

6.5          Where We provide Substitute Equipment (pursuant to paragraph 4.1(b)(ii) or otherwise), You acknowledge and agree that:

(a)           the Substitute Equipment will at all times remain Our property and You will have no right, title or interest in or to the Substitute Equipment (save the right to use the Substitute Equipment in the ordinary course of trading, subject to the terms and conditions of the Agreement);

(b)          the risk of loss, theft, damage or destruction of the Substitute Equipment will pass to You on delivery and the Substitute Equipment will remain at Your sole risk during the period which the Substitute Equipment is in Your possession, custody or control, until such time as the Substitute Equipment is redelivered to Us (“Risk Period”);

(c)           during the Risk Period, You will at Your own expense, obtain and maintain the following insurances:

(i)            insurance of the Substitute Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as We may from time to time designate in writing;

(ii)           insurance for such amounts as a prudent owner or operator of such Substitute Equipment would insure for, or such amount as We may reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Substitute Equipment; and

(iii)          insurance against such other or further risks relating to the Substitute Equipment as may be required by law, together with such other insurance as We may from time to time advise you is reasonably necessary to take out and maintain in relation to the Substitute Equipment;

(d)          You will give immediate written notice to Us in the event of any loss, accident or damage to the Substitute Equipment arising out of, or in connection with, Your possession or use of the Substitute Equipment;

(e)           if You fail to effect or maintain any of the insurances required under these Maintenance Services Supplemental Terms and Conditions, We will be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose, and recover the same as a debt due and payable immediately from You; and

(f)           You will, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Us and proof of premium payment to Us to confirm the insurance arrangements.

6.6          In respect of the Substitute Equipment, You will:

(a)           be responsible for making good any damage to the Substitute Equipment (fair wear and tear only excepted);

(b)          make no alteration to the Substitute Equipment and will not remove any existing components from it;

(c)           not, without Our prior written consent, part with control of, sell or offer for sale, underlet or lend the Substitute Equipment, or allow the creation of any mortgage, charge, lien or other security interest in respect of it;

(d)          not without Our prior written consent, attach the Substitute Equipment to any land or building, so as to cause it to become a permanent or immovable fixture on such land or building. If the Substitute Equipment does become affixed to any land or building, then the Substitute Equipment must be capable of being removed without material injury to such land or building and You will repair and make good any damage caused by the affixation or removal of the Substitute Equipment from any land or building, and indemnify Us against all losses, costs or expenses incurred as a result of such affixation or removal;

(e)           not do or permit to be done any act or thing which will or may jeopardise Our right, title and/or interest in the Substitute Equipment and, where the Substitute Equipment has become affixed to any land or building, You must take all necessary steps to ensure that We may enter such land or building and recover the Substitute Equipment both during the term of this agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of Us of any rights such person may have or acquire in the Substitute Equipment, and a right for Us to enter onto such land or building to remove the Substitute Equipment;

(f)           not suffer or permit the Substitute Equipment to be confiscated, seized or taken out of Your possession or control under any distress, execution or other legal process, but if the Substitute Equipment is so confiscated, seized or taken, You will immediately notify Us and You will (at Your sole expense) use Your best endeavours to procure an immediate release of the Substitute Equipment, and will indemnify Us on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;

(g)          not use the Substitute Equipment for any unlawful purpose;

(h)          ensure that at all times the Substitute Equipment remains identifiable as being Our property and, wherever possible, will ensure that a visible sign to that effect is attached to the Substitute Equipment; and

(i)            deliver up the Substitute Equipment at such time and such address as We require, or, if necessary, allow Us or Our Personnel access to the Location, or any premises where the Substitute Equipment is located, for the purpose of removing the Substitute Equipment.

6.7          You acknowledge that We will not be responsible for any loss of or damage to the Substitute Equipment arising out of, or in connection with, any negligence, misuse or mishandling of the Substitute Equipment, or otherwise caused by You or Your Personnel. You undertake to indemnify Us on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of, or in connection with, any failure by You to comply with the terms of this paragraph 6.

7.             Your obligations

7.1          You will:

(a)           ensure that the Maintained Equipment is in Good Working Order at the Commencement Date, or otherwise instruct Us to undertake such services as We consider to be reasonably necessary, in order to bring the Maintained Equipment up to Good Working Order, in which case You will pay Us such fees as We advise You are payable in this regard;

(b)          ensure that the Maintained Equipment is installed and kept in suitable premises and under suitable conditions, as specified in the Operating Manuals, or as otherwise directed by the relevant Hardware manufacturer, and follow any instructions as We or the Hardware manufacturer (as the case may be) may give from time to time (including in relation to preventative maintenance measures);

(c)           take all reasonable measures adequately to protect the Maintained Equipment against Malicious Software, including by using the latest versions of anti-virus software available from an industry-accepted anti-virus software vendor to check for and delete Malicious Software;

(d)          take all reasonable steps to ensure that the Maintained Equipment is operated in a normal and proper manner, and used only by competent and trained personnel;

(e)           notify Us promptly in writing if the Maintained Equipment is discovered to be operating incorrectly, and immediately cease to use the relevant Maintained Equipment, unless and until We confirm otherwise in writing;

(f)           at all reasonable times permit Us and Our Personnel full and free access to the Location and to the Maintained Equipment, and provide Us and Our Personnel with adequate facilities and safe working space, and any cabling, power, telecommunications facilities and Consumables as are reasonably required to enable Us and/or Our Personnel to fulfil Our obligations under the Agreement;

(g)          keep Us fully informed of all material matters relating to the Maintained Equipment and provide Us with any information that is reasonably requested in the performance of the Maintenance Services;

(h)          take reasonable care to ensure that the health and safety of Our Personnel is protected when they are attending the Location and/or any other premises under your ownership or control;

(i)            not maintain, alter, modify, dismantle, repair, adjust or in any way interfere with (or allow any person other than Us or the relevant Hardware manufacturer (as the case may be) to maintain, alter, modify, dismantle, repair, adjust or in any way interfere with) the Maintained Equipment, without Our prior written approval;

(j)            ensure that appropriate environmental conditions (including in relation to temperature and humidity) are maintained for the Maintained Equipment, including by complying with any requirements or recommendations of the relevant Hardware manufacturer in this regard;

(k)           keep full backup copies of all of Your data, applications and operating systems and (notwithstanding the foregoing) conform with good industry practice in this regard;

(l)            ensure that there is an adequate power supply supplying the Maintained Equipment which provides adequate protection against lightning strikes, power surges and other reasonably foreseeable external factors;

(m)         not move the Maintained Equipment from the Location without Our prior written approval; and

(n)          only use supplies or materials supplied or approved by Us or the relevant Hardware manufacturer (as the case may be).

8.             Definitions and interpretation

8.1          In these Maintenance Services Supplemental Terms and Conditions, the following additional definitions apply:

Additional Services: means any Excluded Services performed by Us pursuant to these Maintenance Services Supplemental Terms and Conditions.

Additional Services Fees: means the fees payable in consideration of the provision of any Additional Services, which will be calculated at the Additional Services Rates.

Additional Services Rates: means the rates set out in the Order or otherwise notified by Us to You in writing, as those rates are amended from time to time in accordance with the Agreement.

Affected Hardware: has the meaning given to it at paragraph 2.2(c).

Consumables: will have the meaning given in paragraph 6.4.

Corrective Maintenance: means (subject to paragraph 3.3) making any adjustments to the Maintained Equipment to restore it to Good Working Order (but excluding any Out-of-Scope Activities, and/or any Excluded Services, and/or the repair or replacement of any parts or components of the Maintained Equipment), in each case as required to restore the Maintained Equipment to Good Working Order and in accordance with paragraph 3.2.

Customer Operating System: means the customer’s operating system, as set out in the Order, or as agreed in writing from time to time.

EMS Contract Year: any 12-month period starting on the EMS Commencement Date and on each anniversary of the EMS Commencement Date.

Good Working Order: means the Maintained Equipment operates materially in accordance with the Operating Manuals.

Location: means the location of the Maintained Equipment at Your premises as specified in the Order, or any other location as may be agreed by the parties in writing from time to time.

Maintained Equipment: means the equipment specified in the Order as being covered by the Enhanced Maintenance Services and/or the Premier Maintenance Services and/or any other equipment as may be agreed by the parties in writing from time to time, as subject to either the Enhanced Maintenance Services and/or the Premier Maintenance Services, including in each case (to the extent that we have authorised You to use it) any Substitute Equipment.

Malicious Software: means any software program or code intended to destroy, interfere with, corrupt or have a disruptive effect on program files, data, or other information, executable code or application software macros, whether or not its operation is immediate or delayed, and whether such software program or code is introduced wilfully, negligently or without knowledge of its existence.

Operating Manual: means all manufacturer operating manuals, specifications and other manufacturer documentation relating to the relevant Hardware.

PMS Contract Year: any 12-month period starting on the PMS Commencement Date and on each anniversary of the PMS Commencement Date.

Premier Maintained Equipment: means the equipment specified in the Order as being covered by the Premier Maintenance Services and/or any other equipment which the parties subsequently agree in writing will be so covered.

Risk Period: in relation to the Substitute Equipment, shall have the meaning given in paragraph 6.5(b).

Standard Telephone Support: has the meaning given to it at paragraph 2.2(a).

            Substitute Equipment: shall have the meaning given in paragraph 4.1(b)(ii).