Terms & Conditions

These General Terms and Conditions including Schedule 1 shall govern the supply of the Products and Services (as defined below) by PIMvoip LIMITED registered in England with number 07152093 Whose registered office is at 21 Rochford Avenue, Whitefield, Manchester, M45 7PQ, UK (hereinafter known as the “Company”) and the Customer (as defined below)

1. STRUCTURE OF AGREEMENT
1.1 The Customer acknowledges and agrees that it enters into this Agreement for the Products and Services in the course of business and intends to use said Products and Services for business use only.
1.2 These GTCs incorporating the Relevant Supplementary Terms shall govern the supply by the Company of the Products and Services.

2. TERM
2.1 Subject to the parties rights of termination set out in the Agreement, this Agreement shall continue from the Effective Date until the expiry or termination of all Orders for the Products and Services under the Agreement.

3. GRANT
3.1 The Company hereby grants to Customer a non-exclusive revocable right to use Products and Services in accordance with this Agreement.
3.2 All rights not specifically and expressly granted to the Customer under this Agreement are reserved for the Company.

4. ORDERS
4.1 During the term of this Agreement the Customer may place individual written Orders with the Company for the supply of Products and Services, the availability of such Products and Services being confirmed by inclusion in the Price List. All Orders shall be on the Company’s standard order form or in some other form agreed by the Company.
4.2 Every Order shall be subject to acceptance in writing by the Company. For the avoidance of doubt, nothing shall oblige the Company to accept any Order.
4.3 On acceptance of the Order by the Company, each Order shall form a separate contract for the relevant selected Product or Service and shall be subject to the terms of the GTCs, the Relevant Supplementary Terms, and Order. For the avoidance of doubt, an Order containing Products and Services provided pursuant to different Supplementary Terms shall be deemed separate Orders for the purposes of the Agreement.
4.4 All Orders are subject to the terms of this Agreement and any terms proffered by the Customer shall have no effect.

5. PRICES AND PAYMENT
5.1 All Prices are exclusive of VAT. Customer shall bear the cost and shall be responsible for the timely payment of all relevant taxes, duties and assessments imposed upon Customer in connection with the payments due to the Company under this Agreement, including all VAT and any other sales taxes, withholding tax and other taxes.
5.2 Unless otherwise expressly provided in the Relevant Supplementary Terms or Order, the Price is due and shall be paid without setoff or deduction within 14 days of the date of the invoice or prior to shipment for any Products to be delivered outside the mainland United Kingdom. The Customer acknowledges and agrees that should the Customer require any information of any kind to be included on any invoice prior to payment, such information shall be submitted to the Company in writing prior to the date for invoicing. The Customer acknowledges and agrees that any failure by the Customer to provide such information shall not prevent or delay payment.
5.3 Unless otherwise expressly provided in the Relevant Supplementary Terms or Order, all payments from Customer to the Company hereunder will be in pounds sterling by means of a company cheque, bank cheque or bank transfer to the bank account nominated by the Company.
5.4 The Company reserves the right to charge interest at the rate of 3% over the base rate of HSBC Bank Plc on a daily basis on all monies outstanding after the due date until the actual date of payment (both before and after judgement).
5.5 The Company reserves the right at its sole discretion to reject Orders and / or delay shipment of Products or provision of Services where the aged debt of the Customer rises to a level unacceptable to the Company and where 5 days prior written warning of such action has been given by the Company to the Customer.
5.6 The Company or its authorised representative may on giving reasonable notice, at the Company’s own expense, audit the records of the Customer relating to this Agreement to ensure the Customer is complying with the terms of this Agreement. Any such audit shall be conducted during regular business hours either remotely or at the Customer’s premises. If an audit reveals that the Customer has underpaid the Price, the Company shall be entitled to require the Customer to make good the underpayment.

6. CONFIDENTIALITY
6.1 During the term of this Agreement and following termination hereof both parties undertake to keep confidential the Confidential Information received from the other party (the “disclosing party”) and undertake not to use the same other than to enable it to perform its obligations under this Agreement. Accordingly, the parties shall not in any manner, directly or indirectly transmit, reveal, disclose, cause to be disclosed, publish, distribute, copy or make available any such Confidential Information to any party except those of the receiving party’s employees who need access to the Confidential Information to enable it to carry out its obligations in accordance with the terms of this Agreement. In the event of such disclosure the Customer will obtain from such employees duly binding agreements to maintain in confidence the information to be disclosed to the same extent at least as the Customer is so bound hereunder.
6.2 The foregoing obligations will not apply if and to the extent that:
(a) the receiving party clearly establishes that the Confidential Information was already known to it at the time of receipt from the disclosing party; or
(b) the Confidential Information subsequently comes lawfully into the possession of the receiving party in good faith from a third party; or
(c) the Confidential Information is in the public domain other than through breach of this Agreement; or
(d) the Confidential Information is required to be disclosed by governmental, statutory, regulatory or judicial body and even then any such disclosure shall be subject to the confidentiality obligations prescribed by the relevant form.
6.3 Without limitation to clauses 6.1 or 6.2 Customer agrees to notify the Company in writing of any suspected or known breach of the obligations under this clause as soon as it becomes aware of such breach and shall implement such security procedures it uses for its own Confidential Information which it protects against unauthorised disclosure, appropriation or use.
6.4 For the purposes of this Agreement, Confidential Information means all information of a confidential nature or which is commercially sensitive or of a secret nature including information contained in or embodied in any software (such as the structure, sequence organisation and screen presentation), this Agreement, the specifications, and user manuals and all information relating to any and all aspects of the financial and business and operations of the disclosing party whether such information is marked as confidential or not. Such information may be expressed in any form including but not limited to orally.

7. PROPRIETARY RIGHTS
7.1 The Customer acknowledges that all Intellectual Property Rights in the Products and Services including all modifications and enhancements and related documentation (including all versions of any specification and user manual) are and shall remain the property of the Company or its third party suppliers.
7.2 Customer acknowledges that the Company’s Confidential Information, software and Know-How and all related documentation may contain substantial trade secrets of the Company.
7.3 Customer shall not remove or alter any copyright, Mark or other proprietary notice on the Products or Service, or any part of it or on any other material whatsoever provided by the Company.

8. LIMITATION OF LIABILITY
CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8.
8.1 The following provisions of this clause 8 set out the total liability of each party in respect of any breach of its obligations arising under or in connection with this Agreement whether in contract, tort (including negligence) and breach of statutory duty or otherwise howsoever arising and shall for the avoidance of doubt apply to any indemnity given by the Company under this Agreement. Subject to clause 8.2 and to the fullest extent permissible by law in no circumstances will either party be liable in contract tort or otherwise for any costs, claims, damages, losses or liabilities or expenses in respect of:
(a) any direct loss of profit, excluding any element of the Price;
(b) any direct loss of anticipated savings; or
(c) any indirect loss or damage howsoever caused including without limitation;
(i) any loss of profit, excluding any element of the Price;
(ii) loss of use of money;
(iii) loss of anticipated savings;
(iv) loss of business;
(v) loss of opportunity;
(vi) loss of reputation;
(vii) loss of data;
(viii) any wasted expenditure; and/or
(d) any other consequential loss including pure economic loss, excluding any element of the Price.
For the avoidance of doubt, the sub-clauses of this clause 8.1 are intended by the parties to be severable. 8.2 Nothing in this Agreement shall limit or exclude:
(a) either party’s liability for fraud (including without limitation fraudulent misrepresentation) or for death or personal injury resulting from negligence;
(b) either party’s liability for any breach of clause 6;
(c) the Customer’s liability for any infringement of the Company’s Intellectual Property Rights;
8.3 Without prejudice to clause 8.2, the Company's maximum aggregate liability for all claims made in relation to this Agreement:
(a) in respect of loss of or damage to tangible property (which for the avoidance of doubt does not include data) whether belonging to Customer or any third party, shall not in any circumstances exceed £1,000,000 in respect of each event or series of connected events in any one Year; and
(b) in respect of any other loss or damage arising from the Products or Professional Services, the lesser of 115% of the Price paid by the Customer to the Company under the Order for the specific Products or Professional Services that are the subject of the Customer’s claim or £1,000,000;
(c) in respect of any other loss or damage arising from the Services (other than the Professional Services), the lesser of 115% of the Price paid by the Customer to the Company under the Order for the specific Services that are the subject of the Customers claim under this Agreement in the Year in which the loss or damage occurred or £1,000,000.
8.4 The Prices of the Company have been set on the basis of the exclusions and restrictions of liability in this clause 8, and would be higher without those provisions. In the circumstances, Customer agrees that those provisions are reasonable and will accept risk and insure accordingly.
8.5 The provisions of this clause 8 shall continue to apply notwithstanding the termination of this Agreement (howsoever arising).
8.6 For the purposes of this clause 8, a “Year” shall mean a 365 day period (or a 366 day period if that period encompasses 29th February) commencing either on the date of this Agreement or on any anniversary thereof.
8.7 Save as expressly provided for in this Agreement, no warranty, condition, undertaking or term, whether statutory, express or implied as to condition, satisfactory quality, performance, durability, fitness for purpose or otherwise is given or assumed with regards to the Products or Services and all such terms and warranties are hereby excluded to the fullest extent permitted by law.

9. TERMINATION
9.1 Subject to the provisions of Clause 10, without prejudice to a party’s other remedies and accrued rights, and in addition to any rights provided in the Relevant Supplementary Terms either party shall have the right to terminate this Agreement or Order (including any Products or Services provided under such Order) immediately if: -
(a) the other party commits a material breach of this Agreement and (in the case of a breach capable of being remedied) shall have failed to remedy the breach within 14 days of receipt of the request in writing from the other party to do so and a breach shall be considered capable of remedy if the party in default can comply with the provision in question in all respects other than as to the time of performance;
(b) the other party being a company suffers any distress or execution or a resolution or order to wind up the company is passed or made (otherwise than for bona fide solvent reconstruction or amalgamation) or goes into liquidation or becomes insolvent or has a receiver, administrative receiver or administrator appointed over all or any part of its assets or undertakings or an administration order is made in respect of the company or enters into an arrangement or composition with its creditors or ceases to carry on business.
9.2 Without prejudice to the Company’s other remedies and accrued rights, and in addition to any rights provided in the Relevant Supplementary Terms, the Company may terminate this Agreement or Order (including any Products or Services provided under such Order) if following 10 days written notice any amount remains unpaid after the due date for payment.

10. CONSEQUENCES OF TERMINATION
10.1 Without prejudice to any other provisions in this Agreement expressed to have effect upon termination and save as provided in the Relevant Supplementary Terms, on termination of the Agreement or Order (in which case the following provisions shall apply to said Order):
(a) all rights granted to Customer shall terminate;
(b) the Customer shall pay the Company within ten (10) days after such termination, all amounts that are owed to the Company under this Agreement.
10.2 In the event of termination of the Agreement or Order under Clause 9.1(a), such termination shall not affect the rights and obligations of either Party in respect of Orders accepted prior such termination, except in respect of the Order which is the subject of the relevant breach.
10.3 Termination of this Agreement shall not operate so as to affect such of the provisions of this Agreement as are expressed or implied to operate or have effect after termination of this Agreement.

11. DISPUTE RESOLUTION
11.1 This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law save that the Company shall have the right to sue for breach of its Intellectual Property Rights and Know-How (whether in connection with this Agreement or otherwise) in any country where it believes that infringement or a breach of this Agreement relating to its Intellectual Property Rights and Know-How might be taking place.
11.2 The Customer acknowledges and agrees the Company’s business relies upon the protection of its Intellectual Property Rights, Confidential Information and Know-How and that in the event of a breach or threatened breach of Intellectual Property Rights, Confidential Information or Know-How, the Company will be caused irreparable damage and may therefore be entitled to injunctive or other equitable relief in order to prevent such a breach or threatened breach.
11.3 Subject to the above, the parties shall irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Agreement.
11.4 Nothing in this clause shall however prevent either party from exercising any rights available pursuant to any other provisions of this Agreement.

12. FORCE MAJEURE
12.1 Neither party shall be liable for failure or delay in performing any of its obligations under this Agreement if such failure or delay is due to any circumstances beyond the reasonable control of the defaulting party (“Force Majeure”). This includes but is not limited to Acts of God, war, acts of terrorism, fire, explosion, earthquake, flood, strikes and labour disputes, the inability to obtain materials, supplies, Network and PSTN availability, power or equipment necessary to enable such party to perform its obligations under this Agreement and any act or order of any governmental or European Union authority or other regulatory body.
12.2 Each party shall promptly notify the other in writing of any such event of Force Majeure, the expected duration of it and its anticipated effect on its ability to perform its obligations under this Agreement and make reasonable efforts to promptly overcome the delay occasioned by any such event.
12.3 If the Force Majeure in question continues for more than 90 days either party may give notice in writing to the other to terminate this Agreement with immediate effect without liability.

13. NOTICES
13.1 All notices relating to this Agreement shall be given by hand or by prepaid first class post or by facsimile or other form of electronic transmission to the addressee at (1) the address stated above in the case of the Company and (2) the address stated in the Order in the case of the Customer, or such other address as the addressee shall have for the time being notified to the party giving the notice. Such notice shall be deemed to have been delivered if by letter at the expiration of 48 hours after posting and if by facsimile or other form of electronic transmission at the time it was transmitted.

14. DEFINITIONS AND INTERPRETATION
14.1 In this Agreement the expressions shall have the meaning given to them in Schedule 1 except where otherwise provided.
14.2 The headings to this Agreement are for convenience only and shall not affect its interpretation.
14.3 References in this Agreement to a statute or any provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
14.4 References to numbered clauses are references to the relevant clauses in these GTCs unless otherwise specified;
14.5 Reference in any Supplementary Terms to appendices, numbered paragraphs or clauses relate to the appendices, numbered paragraphs or clauses of those Supplementary Terms unless otherwise specified;
14.6 Words importing the singular meaning include where the context so admits the plural meaning and vice versa.
14.7 For the avoidance of doubt and notwithstanding any language in the Agreement capable of being construed to the contrary (including but not limited to “sale”, “sell”, “resell”, “reseller”) all software supplied under the Agreement shall be licensed or sublicensed and not sold.
14.8 In the event of a conflict between the GTCs, Supplementary Terms, and Orders the following order of priority shall prevail (1) the GTCs (2) the Supplementary Terms, and (3) the Order.

15. GENERAL
15.1 This Agreement may not be modified or amended nor may any right under this Agreement be waived except by written communication signed by an authorised officer of the party against whom the same is sought to be enforced.
15.2 No failure or delay on the part of either party in exercising any right, power or remedy will act as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right, power or remedy.
15.3 If any clause or part of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall to the extent required be severed from this Agreement and shall be ineffective without as far as is possible modifying any other clause or part of this Agreement and this shall not affect any other provisions of this Agreement which shall remain in full force and effect.
15.4 The Company shall be entitled to assign, transfer, or sub-contract its rights and obligations arising under the Agreement. Except as expressly provided in the Agreement, Customer shall not assign, transfer, or sub-contract any of its rights or obligations under this Agreement without the prior consent in writing of the Company.
15.5 Except as expressly provided in the Agreement, nothing in this Agreement shall be construed as constituting or evidencing any partnership, agency or contracts of employment between the parties and neither party shall have any authority to bind and shall not make any representations binding upon the other party.
15.6 This Agreement contains all the terms which the parties have agreed in relation to the subject matter of this Agreement and supersedes all previous agreements and representations, written or oral, with respect to its subject matter. For the avoidance of doubt any terms and conditions (other than as expressly set out in this Agreement) proffered by Customer shall be null and void and have no effect. Neither party to this Agreement has been induced to enter into this Agreement by a statement, promise or representation which is not expressly set out in this Agreement save that this clause shall not exclude any liability which one party would otherwise have to the other in respect of any statements made fraudulently by that party.
15.7 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

SCHEDULE 1

The expressions in this Agreement shall have the following meanings except as otherwise provided in the Supplementary Terms:
“Agreement” means these GTCs, the Relevant Supplementary Terms, and all contracts pursuant to the Orders;
“Company Website” means the Company website.
“Confidential Information” has the meaning given to it in clause 6.4;
“Customer” means the customer of the Company so named in the Order;
“Effective Date” means the date the first Order is accepted by the Company;
“General Conditions” means the general conditions of entitlement as set out in the notification issued by the Director General For Telecommunications on 22nd July 2003, in accordance with section 48(1) of the Communications Act 2003 pursuant to section 45 of said act as may be amended from time to time;
“GTCs” means these General Terms and Conditions including this Schedule 1;
“Intellectual Property Rights” means all vested contingent and future intellectual property rights including but not limited to goodwill, reputation, rights in confidential information, copyright, trade marks, logos, service marks, devices, plans, models, diagrams, specifications, source and object code materials, data and processes, design rights, patents, Know-How, trade secrets, inventions, get-up, database rights (whether registered or unregistered) and any applications or registrations for the protection of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created “Know-How” means all industrial, marketing and commercial information and techniques including (without prejudice to the generality of the foregoing) the knowledge and expertise of the Company regarding what functions and facilities of Products and Services;
“Laws” means any applicable law (including General Conditions), statue, bye-law, regulation, order, regulatory policy, guidance, standard or industry code, rule of court or directives or requirements of any government or regulatory body, delegated or subordinate legislation or notice of any government or regulatory body and the common law and the law of equity as applicable to the Parties from time to time;
“Maintenance Services” means the maintenance services as specified in the Relevant Supplementary Terms provided in accordance with an accepted Order;
“Marks” means any trade marks, service marks or trade names of the Company or its suppliers and which are associated with the Products and/ or Services(whether registered or unregistered);
“Order” means an order for the Products and Services provided in accordance with the provisions of the clause 4 of these GTCs and the provisions of the Relevant Supplementary Terms;
“Parties” means the parties to this Agreement and “Party” shall be construed accordingly;
“Price” means the charges (as further described in the Relevant Supplementary Terms) for the Company’s products and services;
“Price List” means the document containing the Prices provided and updated by the Company from time to time;
“Products” means the Equipment (as defined in the Relevant Supplementary Terms) but excluding any Services supplied to the Customer by the Company, as specified in an accepted Order;
“Professional Services” means the services (if any) supplied by the Company pursuant to the Relevant Supplementary Terms including (where appropriate) consultancy, installation, commissioning, usage support, site audits, training services and any other services (but excluding any Maintenance Services and Specific Services) as specified in an accepted Order;
“Relevant Supplementary Terms” means the relevant Supplementary Terms which apply to the supply by the Company of the specific products and services;
“Services” means the services supplied by the Company pursuant to the Relevant Supplementary Terms including (as appropriate) Professional Services, Maintenance Services and Specific Services as specified in an accepted Order;
“Specific Services” means the services supplied by the Company pursuant to the Supplementary Terms but excluding the Professional Services and Maintenance Services;
“Specifications” means the relevant specification for the Products and Services as detailed on the Company Website;
“Supplementary Terms” means the terms and conditions agreed between the Parties in respect of the supply and use of the products and services supplied by the Company;
“Territory” means the United Kingdom;
“T&M Rates” means the Company’s time and materials rates for additional Professional Services as set out in the Price List or otherwise provided by the Company, such rate being exclusive of travel, accommodation and sustenance expenses incurred by the Company which shall be charge in addition at cost;
“VAT” means value added tax;
“Working Days” means Monday to Friday inclusive but excluding any United Kingdom bank, public or statutory holidays;and
“Working Hours” means 9:00 -17:00 (UK time) on any Working Day

These Supplementary Terms shall govern the supply by PIMvoip Limited (the “Company”) of the Company Hosted Services (as defined below) and shall be incorporated into the Company General Terms and Conditions (the “GTCs”).

1. DEFINITIONS
1.1 The terms and expressions in these Supplementary Terms shall have the meaning given in the GTCs except as otherwise provided below:
“Artificial Inflation of Traffic” means a situation where the volume of NTS Minutes is as a result of activity by or on behalf of the Customer disproportionate to the volume of NTS Minutes which would be expected from good faith commercial practice and use of the Service;
“Call Detail Record” means the record created at the start of a call and terminated at the close of a call;
"Carrier" means any supplier or provider of telecommunications services to Company for the Services;
“Equipment” means any equipment provided by Company at the Premises pursuant to the Relevant Supplementary Terms;
“Company Hosted Service” means the Hosted Application Products and Deliverables supplied by the Company pursuant to these Supplementary Terms as specified in an accepted Order;
“Company Technical Specification” means the Company technical specification for the Data Network and Other Equipment as provided on the Company Website, as amended by the Company from time to time;
“Data Network” means the data network (which for the avoidance of doubt shall include LAN and WAN) over which the Company Hosted Services shall be delivered;
“Deliverables” means deliverables supplied by the Company including but not limited to Number Translation Services and Minutes;
“Hosted Application Product(s)” means the Company hosted applications and where applicable user machine resident applications software (in object code only) conforming to the Specifications;
“Identity” means an individual natural person within the Customer, registered and licensed to use the Products under a User, in accordance with the provisions of the Agreement;
“Initial Period” means the minimum initial period in respect of each User as specified in the Order, but which in any case shall be no less than 12 months unless otherwise expressly provided in the Order “LAN” means local area network;
"Minimum Use" means, in relation to a Number, the minimum number of calls which must be made using such Number during the Initial Period or any subsequent period as set out in the Order;
“Minutes” means the facility for Customer using the Hosted Application Products to make and receive external telephone (and where applicable fax) calls via PSTN where such calls are charged to the Customer in accordance with the Charges as set out in the Price List. "Number" means any telephone number allocated for the purpose of obtaining the PSTN;
“Number Translation Services” means the provision by the Company of non-geographic telephone numbers for use in conjunction with the Hosted Application Products;
“Other Equipment” means any apparatus situated at the Premises, not being Equipment, and used by the Customers in order to obtain the Company Hosted Services, including but not limited to telephones, PBX, Ethernet switches, and routers;
"Premises" means the premises of the Customer specified in the relevant Order;
“PSTN” means public switch telephony network;
“Services Commencement Date” means the date Company advises the Customer that the Company Hosted Services is available;
“Services” means the services provided pursuant to these Supplementary Terms;
“Software” means any software supplied by the Company forming part of the Company Hosted Services;
“User ” means the user granted per Identity or per instance (as specified in the Price List) for use of the Hosted Application Products;
“WAN” means wide area network.

2. COMMENCEMENT
2.1 The Company Hosted Services shall come into effect on the Services Commencement Date or such later date as may be notified by the Company and shall continue for the Initial Period and thereafter until terminated in accordance with the Agreement.
2.2 In the event that Company agrees to provide additional Company Hosted Services or change the Company Hosted Services (including without limitation upgrades or downgrades to the Company Hosted Services or moving the Company Hosted Services to other Premises) a new Initial Period shall apply in respect of each additional or changed Company Hosted Services.

3. SERVICES
3.1 Subject to the terms of this Agreement and pursuant to an accepted Order, the Company agrees:
(a) to supply the Company Hosted Services;
(b) to supply the Professional Services;
(c) to provide Maintenance Services in accordance with Appendix 1 of these Supplementary Terms;
3.2 Customer shall;
(a) only use the Company Hosted Services in accordance with the terms of this Agreement for its own internal purposes;
(b) ensure that all Confidential Information of the Company which it is necessary for the Customer to obtain remains at all times confidential and shall be protected as if it was the Confidential Information of the Customer in terms of the standards of protection afforded to it (c) not transfer, assign, or sub-licence the Customer’s right to use the Company Hosted Services under this Agreement 3.3 Except as specifically permitted by this Agreement or by mandatory laws, Customer will not directly or indirectly;
(a) use any Confidential Information of the Company to create any computer software program or user documentation which is substantially similar to the Company Hosted Services;
(b) reverse engineer, translate, disassemble, decompile, alter or otherwise attempt to derive the source code from any Software;
(c) copy, manufacture, adapt, create, derivative works of, localise, port or otherwise modify any Software or other Confidential Information of the Company or grant any party a User to engage in similar conduct. 3.4 The Customer shall;
(a) ensure the Data Network has sufficient bandwidth capacity and be of a satisfactory quality for the provision of the Company Hosted Services;
(b) ensure the number of concurrent calls or access to other services from each Premises is limited and controlled in order to ensure that the bandwidth allocated to the Company Hosted Services is not oversubscribed. Company shall have no liability for any degradation of Company Hosted Services resulting from any such oversubscription;
(c) ensure there is sufficient bandwidth available at each access connection to enable the voice traffic to be carried for the provision of the Company Hosted Services;
(d) ensure that it takes all necessary action to optimise its Data Network and agrees that Company shall have no liability for any degradation of Company Hosted Services:- (i) resulting from failure by the Customer to take such action;
(ii) caused by any services being provided to the Customer including but not limited to data networks or tail circuits provided by other operators, and services provided over the public internet; and (iii) resulting from a service affecting event on the Data Network (including but not limited to a denial of service attack, a virus attack or loss of power);
3.5 The Customer shall;
(a) ensure that any Data Network used in connection with the Company Hosted Services conforms to the Company Technical Specification;
(b) ensure that any Other Equipment used in connection with the Company Hosted Services conforms to the Company Technical Specification;
(c) be responsible for providing all wiring and connectivity to any Equipment, Other Equipment or other third party equipment including but not limited to all aspects of telephony networks and/or computer networks;
(d) be responsible for providing the Data Network, Other Equipment and all infrastructure pursuant to 3.5(c) prior to the Service Commencement Date;
(e) confirm, in accordance with the Company’s instructions, that the Data Network and Other Equipment comply with the Company Technical Specification;
save to the extent that the Company is responsible for any such Products and Services pursuant to the express provisions of an accepted Order. 3.6 The Customer acknowledges and agrees that;
(a) its ability to receive the Company Hosted Services is entirely dependent on the Customer having Data Networks and Other Equipment conforming to the Company Technical Specification and that the Company Hosted Services shall not be capable of delivery unless the Data Networks and Other Equipment remains in place and continues to conform to the Company Technical Specification;
(b) in order for calls to be successfully made using the Company Hosted Services it must ensure that its LAN is optimised so that voice traffic is prioritised over other data traffic;
(c) any failure of the Customer to comply with its obligations under these Supplementary Terms shall not prevent the Company from charging for the Company Hosted Services. 3.7 The Customer shall: (a) not use the Company Hosted Services, and shall not permit or allow others to use the Company Hosted Services;
(i) in a manner that is contrary to any Laws;
(ii) for any fraudulent, improper, immoral or unlawful purpose (including, but not limited to, to transmit, knowingly receive, store, upload, download, use or re-use any material which is abusive, indecent, defamatory, obscene or menacing or which infringes any Intellectual Property Rights of any third party; or (iii) in a manner which may damage the reputation of the Company or Company Hosted Services, or bring the Company or Company Hosted Services into disrepute; (b) provide to the Company such information reasonably required by Company to fulfil its compliance obligations under any Laws.
3.8 The Company may change these Supplementary Terms at any time provided that such changes shall not unreasonably affect the Company Hosted Services, and in the event that the Company Hosted Services are unreasonably affected the Customer shall have the right to terminate such Company Hosted Services within 5 days of the date of such change on one month’s written notice to the Company with no liability for either party.
3.9 Company shall be entitled to improve, modify, change (providing any such modifications or changes do not materially alter the Company Hosted Services to the Customer’s detriment, and in the event that modifications or changes do materially alter the Company Hosted Services to the Customer’s detriment the Customer shall be able to terminate any Company Hosted Services within 5 days of the date of such change on one months notice to Company without liability), test, maintain or repair the Company Hosted Services provided to the Customer and any other Company Hosted Services offered by it in relation thereto, and to interrupt the Company Hosted Services for such purposes without incurring any liability or obligation to the Customers. Company will give to the Customer as much notification of any interruption to the Company Hosted Services as practicable in the circumstances and will use all reasonable endeavours to disrupt the Company Hosted Services as little as practicable.
3.10 Notwithstanding Clauses 3.8 and 3.9 Company shall be entitled to interrupt the Company Hosted Services at any time without notice in cases of emergency.

4. WARRANTY
4.1 The Company does not warrant that the Services will be error-free or that use of the Services will be uninterrupted, nor does it warrant that the Services will meet the requirements of the Customer.
4.2 The Company warrants that the Company Hosted Services will correspond in all material respects with the Specification.
4.3 Except as expressly set out in these Supplementary Terms Company provides no warranties, conditions, terms or undertakings as to the description or quality of the Company Hosted Services, including without limitation non-infringement of third party rights, satisfactory quality, or fitness for any particular purpose, and all warranties, conditions, terms or undertakings implied by or expressly incorporated as a result of custom and practice, statute, common law or otherwise are hereby expressly excluded so far as permitted by law.

5. CONNECTION TO AND USE OF THE COMPANY HOSTED SERVICES
5.1 The Customer agrees that any equipment it connects to or uses with the Services will be connected and used in accordance with any instructions, safety and security procedures applicable to the use of that equipment.
5.2 The Other Equipment must be technically compatible with the Services and approved for that purpose under any relevant legislation or telecommunications industry standards. Company reserves the right to disconnect any Other Equipment if the Customer does not fulfil its obligations under this clause or if, in the opinion of Company such Other Equipment may cause the death or personal injury to any person or damage to property or materially impairs the quality of any telecommunications service provided by the Company. In the event that Company requests the disconnection, the Customer shall immediately comply with such request.
5.3 The Company may give the Customer instructions which it believes are necessary for reasons of health, safety or the quality of any telecommunications service provided by the Company to the Customer.
5.4 The Customer acknowledges and agrees that only telephones supplied by the Company shall be used in connection with the Company Hosted Services. For the avoidance of doubt should Customer permit the connection to the Company Hosted Services of any telephone not supplied by the Company, the Company shall be under no obligation to provide the Company Hosted Services to said telephone or resolve any fault reported on such device and Customer shall remove such a device from Company Hosted Services immediately on notification from the Company.
5.5 The Customer shall be responsible for the repair and maintenance of any Other Equipment used in order to obtain or use the Company Hosted Services.

6. DATA PROTECTION
6.1 The Services may involve the processing of Personal Data. Customer undertakes to process such Personal Data in accordance with applicable laws including The Data Protection Act 1998 (the "DPA") and if in the performance of the Services it becomes necessary for the Company to use such Personal Data, the Parties agree that the Company shall act as a Data Processor only and that Customer shall at all times remain Data Controller. For the purpose of this clause 6 the terms Data Controller, Data Processor, and Personal Data shall have the same meanings as defined in the DPA.

7. PRICES AND PAYMENT
7.1 The Price for the Services are described below and further detailed in the Price List:
(a) “Subscription Fees”
(i) Subscription Fees are payable monthly in advance per User.
(ii) The first period for a new User is charged pro rata from the date of first availability of the Company Hosted Services to the end of the first calendar month and monthly in advance thereafter. All fees after the first month are charged in whole months including any part month on termination.
(iii) Additional Hosted Application Products are charged in whole months including any part period at the commencement or termination of a User. No Set-up Charge is payable for additional Hosted Application Products for an existing registered Identity.
(iv) All new Users and any Hosted Application Products or additional Hosted Application Products are for the Initial Period from the first day of the calendar month following registrations and are subject to a notice period of three calendar months commencing on the first of the month following receipt of the notice of termination, not expiring prior to the end of the Initial Period.
(b) “Set-up Charges”
(i) Set-up Charges apply to new Users as specified in the Price List and are payable with the initial Subscription Fee pursuant to clause 7.1(a)(ii).
(ii) The User can be transferred between Identities (where the User is charged per Identity) within the Customer without additional Set-up Charges subject always to the Initial Period for the User and Hosted Application Products.
(c) “Usage Charges”
(i) Usage Charges are payable monthly in arrears.
(d) “Excess Usage Charges”
(i) Excess Usage Charges will be calculated on an individual User basis and are payable monthly in arrears in accordance with the Price List.
(e) “Minutes Charges”
(i) Minutes Charges will be charged for Minutes strictly in accordance with Voiceflex Call Detail Record
(f) “Additional Service Charges”
(i) The Company charges for additional services, including Professional Services, are either by quotation or at a daily rate plus expenses for travelling and subsistence. Any materials used will be charged appropriately. Additional Services Charges shall be invoiced upon completion of the particular services or monthly at the discretion of the Company.
7.2 The Company may invoice, at any time, any Prices omitted from a previous invoice.
7.3 All payments shall be made within 14 days of the date of the invoice by standing order
7.4 The Company may decrease its Prices immediately on notice, and its other Prices on 1 months notice to the Customer.
7.5 The Company may require a financial deposit or additional financial deposit from the Customer, at any time. Any such financial deposit must be provided within 5 Working Days of the Company giving the Customer notice that such financial deposit is required. If any financial deposit required by the Company is not received in accordance with this clause 7.5, the Company may suspend the Services until such time as the financial deposit is received.

8. LIABILITY
8.1 The Customer shall indemnify and keep indemnified the Company against any loss or damage, or claims made by any third party including associated costs, damages or legal expenses arising as a consequence of any wilful or negligent act or omission of the Customer in relation to these Supplementary Terms or Customer’s use of the Services in breach of the provisions of this Agreement, including but not limited to infringement of any legislation, regulation or any intellectual property right of any kind.
8.2 Company shall not be liable for failure to meet any Services Commencement Date(s) or any provisioning lead times provided that Company has made reasonable endeavours to meet such timescales.

9. TERMINATION AND SUSPENSION
9.1 Without prejudice to the right to terminate the Services or Agreement contained elsewhere in the Agreement, Company shall be entitled to terminate the Services provided under any Order:
(a) on serving three (1) months prior written notice to the Customer if Company or its third party suppliers no longer operates or provides any or all of the Products or intends to cease operating any or all of the Products or providing any or all of the Products in the immediate future;
(b) by serving written notice on the Customer with immediate effect, or after any period that Company specifies, without any liability on the part of the Customer to pay termination charges, if such action is required in response to or in compliance with any law, statute, legislation, order, regulation or guidance issued by government, a court of law, an emergency service or any other regulatory authority; or
(c) by serving written notice on the Customer with immediate effect, or after any period that Company specifies, if Company has reason to believe that the Services are being used or are likely to be used for the sending, storage or reproduction of any defamatory, offensive, abusive, obscene or menacing material or in such a way as to threaten Company’s ability to provide Services to third parties.
9.2 Without prejudice to its other rights, the Company may at its sole discretion elect to suspend provision of the Services forthwith until further notice if (a) it is entitled to terminate or (b) the Customer is otherwise in breach of the terms of this Agreement or (c) the Company is obliged to comply with any relevant order or instruction of Government or other regulatory authority or (d) the suspension of the Services is required for operational reasons such as maintenance or upgrades or because of an emergency.

10. CONSEQUENCES OF TERMINATION
10.1 Without prejudice to its other rights and remedies if at any time this Agreement or Order (in which case the following provisions shall apply to said Order) is terminated for any reason other than the fault or negligence of the Company the Customer shall pay the Company within ten (10) days after such termination, all arrears of the Price and the greater of the Subscription Fees in full for any unexpired Initial Period or any unexpired notice period, or such other cancellation fee as may be specified in the Price List or Order.

11. EMERGENCY SERVICES
11.1 The Customer acknowledges that the Company Hosted Services allow calls to the emergency services but that such calls may fail should there be a failure in the power supply or Data Network connection.

Appendix 1 - Maintenance Services

In the case of defects or faults in the Company Hosted Services (“Service Faults”) the Company will use reasonable endeavours to provide a Response and Fix within the target timescales specified below. All timescales referring to hours are hours during the Cover Period and are measured from notification (in accordance with the Company’s instructions) of the purported Service Fault to the Company. All timescales referring to Working Days shall be measured from Working Day following notification (in accordance with the Company’s instructions) of purported Service Fault to the Company. “Response” means a response regarding the Service Fault by telephone, email or other method from the Company’s support centre personnel to operatives of Customer.

“Fix” means using reasonable endeavours to correct the Service Fault. Severity Level

Fault Classification

Cover Period

Response Target

Fix Target

1

Complete loss of all Company Hosted Services to all Identities.

24 X 7

2 hour

4 hours

2

Loss of all Company Hosted Services to a group of Identities

24 X 7

4 hour

8 hours

3

Minor Service Faults not included in the above

Working Hours

8 hours

20 Working Days

These Supplementary Terms shall govern the supply by PIMvoip Ltd (the “Company”) of the Equipment and Services (as defined below) and shall be incorporated the Company’s General Terms and Conditions (the “GTCs”).

1. DEFINITIONS
1.1 The terms and expressions in these Supplementary Terms shall have the meaning given in the GTCs except as otherwise provided below:
“Acceptance” has the meaning given to it in clause 4.2 and “Accept” and “Accepted” shall be construed accordingly;
“Company Technical Specification” means Company technical specification for the Other Equipment as provided on the Company Website, as amended by the Company from time to time;
“Charge(s)” means the charges for the Equipment (including the Equipment Rent) and Professional Services, as set out in the Order;
“Premises” means the premises at which the Equipment is to be installed and used as specified in any Order;
“Equipment” means the equipment supplied by the Company under these Supplementary Terms (including any Leased Equipment) including but not limited to telephones, PoE switches, gateways and routers, as set out in any Order;
“Equipment Rent” means the Initial Fee and the Rental;
“Equipment Warranty” means the warranty for the Equipment specified at clause 5.2 “Excluded Maintenance Services” means the exclusions to the Maintenance Services as specified in Appendix 1 of these Supplementary Terms;
“Initial Period” means the initial minimum period in respect of the Maintenance Services as specified on the Order commencing on Acceptance, but which in any case shall be no less than 12 months unless otherwise expressly provided in the Order;
“Initial Fee” means the initial fee payable for the Leased Equipment as set out in the Order, payable in accordance with these Supplementary Terms;
“Installation Services” means in the installation and commissioning services provided by the Company with regards to the Equipment as set out in any Order, which for the avoidance of doubt shall include telephone, switch and router deployment, PBX audits, PBX integration/configuration, and network audits;
“Leased Equipment” means any equipment supplied to the Customer on a lease basis in accordance with these Supplementary Terms, as set out in the Order;
‘Lease Term' is the period of 36 months except as expressly provided in the Order;
“Maintenance Fee” means the annual fee payable by the Customer to the Company so as to permit the End User receive the Maintenance Services as set out in the Order;
“Maintenance Services” means the maintenance services as described at Appendix 1 provided in respect of the Equipment, as set out in the Order;
“Manufacturers Specification” means the document(s) specifying the functions and facilities of the Equipment and inter alia the power, network, connectivity, environmental, and other requirements in respect of the Equipment and Other Equipment;
“Other Equipment” means the equipment and facilities (but excluding the Equipment) to be provided by the Customer or third party for use in connection with the Equipment including but not limited to computer software, computer hardware, wiring, power supplies, servers, PBXs, switches, computer or telephony networks, and connectivity, conforming to the Manufacturers Specification, Company Technical Specification or other instructions provided by the Company;
“Rental” means the recurring monthly fee payable for the Leased Equipment and extension as set out in the Order, payable in accordance with these Supplementary Terms;
“RMA Process” means the Company’s Return Materials Authorisation Process as amended from time to time and specified on the Company Website;
“Services” means the Professional Services and Maintenance Services provided by the Company pursuant to these Supplementary Terms;
“Software” means any software on or provided with the Equipment;
'Total Loss' means a total loss or constructive or arranged total loss as declared by the Insurers or otherwise adjudged.

2. OBLIGATIONS OF THE COMPANY
2.1 The Company shall in accordance with this Agreement and subject to an accepted Order:
(a) supply the Equipment;
(b) supply the Professional Services (including Installation Services);
(c) provide Maintenance Services to the Customer in accordance with Appendix 1 and the other provisions of the Agreement. 2.2 For the avoidance of doubt, the Company shall not provide any Professional Services or Maintenance Services unless otherwise expressly provided for in the Order. 2.3 Whilst the Company shall use reasonable endeavours to deliver the Equipment and perform the Professional Services and Maintenance Services or any part thereof in accordance with any target date or target timescales, time shall not be of the essence for the performance by the Company of its obligations under this Agreement. 2.4 Unless expressly provided in any Order under the Agreement, the Company shall not be responsible for any wiring at the Premises in respect of the Equipment or Other Equipment, or be responsible for any Other Equipment.

3. CUSTOMER’S OBLIGATIONS
3.1 The Customer agrees: (a) to be responsible for the Other Equipment, and ensure any Other Equipment required for the correct installation and/or operation of the Equipment is installed and/or operational (in accordance with the instructions of the Company including the provisions of the Company Technical Specification) prior to the agreed date for installation and /or operation of the Equipment;
(b) to be responsible for preparing the Premises in accordance with the Company’s instructions (including the Company Technical Specification) and maintaining a proper and safe environment in which the Equipment is to operate and Services to be provided;
(c) to supply to the Company such information in such form as may be reasonably required by the Company to meet its obligations under the Agreement including but not limited to the provision by the Company of Professional Services and Maintenance Services;
(d) to provide such access to the Premises and Other Equipment as required by the Company and its third party sub-contractors to perform its obligations under the Agreement;
(e) that should the Company on attending the Premises, and as a result of the act or omission of the Customer, Sub-Customer or End User be unable to perform its obligations under the Agreement including but not limited to the provision of any Professional Services and Maintenance Services the Company reserves the right to charge the Customer at the Rates in accordance with these Supplementary Terms. 3.2 The Customer shall not and shall not permit any other party to;
(a) reverse engineer, translate, disassemble, decompile, alter or otherwise attempt to derive the source code for the Software;
(b) copy, manufacture, adapt, create derivative works of, localise, port or otherwise modify any Software;
except to the extent that the Company cannot prohibit such acts by applicable law. 3.3 The Customer shall indemnify and keep the Company fully indemnified against any loss or damage incurred by the Company arising as a result of the acts or omissions of the Customer, Sub-Customer, or End User, or breach by the Customer of its obligations under the Agreement.

4. DELIVERY
4.1 Unless otherwise expressly provided in the Order, all deliveries of the Equipment shall be on a FCA basis.
4.2 Unless otherwise expressly provided in the Order, the Equipment shall be accepted by the Customer when delivered, or if said Equipment is installed by the Company pursuant to an Order for Installation Services, on completion of said Installation Services at the Premises.

5. WARRANTIES
5.1 The Company warrants that the Professional Services will be carried out in accordance with the Order with reasonable care and skill..
5.2 The Company warrants that the Equipment for a period of 90 days from delivery to the Premises will be free from material defects in workmanship and materials..
5.3 Save as expressly provided for in these Supplementary Terms, no warranty, condition, undertaking or term, whether statutory, express or implied as to condition, satisfactory quality, performance, durability, fitness for purpose or otherwise is given or assumed with regards to the Equipment and Professional Services and all such terms and warranties are hereby excluded to the fullest extent permitted by law..
5.4 To the extent permitted by law, the sole remedy of the Customer for any breach by the Company of the warranties provided shall be the replacement or repair of the defective Equipment or part thereof on a parts only return to Company basis in accordance with the Company’s RMA Process. The Company shall have no liability in respect of any fault or defect arising in the Equipment as a result of the Excluded Maintenance Services.

6. TITLE AND RISK
6.1 Risk of damage to or loss of the Equipment and any related documentation shall pass to the Customer upon delivery. Notwithstanding delivery, property in and title to the Equipment shall not pass to the Customer until the Company has received in full all sums due to it in respect of all Equipment and Professional Services under the Order.
6.2 Until property in and title to the Equipment has passed to the Customer the Customer must hold the Equipment on a fiduciary basis as the Company’s bailee. Until title in the Equipment passes the Customer must keep such Equipment separate and identified as the Company’s and suitably insured.
6.3 The Customer grants the Company, its employees and agents an irrevocable User at any time to enter any premises (upon reasonable notice) where the Equipment is or may be stored in order to inspect it, or, where the Customer’s right to possession has terminated, to recover it.

7. LEASED EQUIPMENT
7.1 The Leased Equipment shall be hired to the Customer for the Lease Term. Following the Lease Term the lease shall be extended for subsequent 12 month periods except and until either party gives to the other not less than 3 months notice to terminate the lease, such notice expiring on the final day of the Lease Term and each subsequent anniversary of the same.
7.2 So long as the Customer is neither in default in the payment of any sum of money payable nor is in breach of any of the covenants on its part toperform in this agreement it may peaceably hold and enjoy quiet possession of the Leased Equipment for the Lease Term and any extension thereof.
7.3 The Customer agrees: (a) that the Company reserves the right to substitute the Leased Equipment stated in the Order with alternative equipment of an equal or higher value specification; (b) to allow the Company or its duly authorised agent or representative upon reasonable notice at any time access to inspect the Leased Equipment; (c) not to alter, modify or adjust the Leased Equipment in anyway and not to remove any existing component from the Leased Equipment without the written consent of the Company; (d) not subject the Leased Equipment to any misuse or wear or tear over that consistent with normal and reasonable use; (e) to use the Leased Equipment in a skilful and proper manner and in accordance with any operating instructions issued for them and to ensure that the Leased Equipment are operated and used by properly skilled and trained personnel; (f) to obtain effective and keep effective all permissions Users and permits and to pay all rates rents taxes and charges which may from time to time be required in connection with the business of the Customer the Leased Equipment and their use on the Premises and to comply with all statutory and other obligations of all kinds in relation to the Leased Equipment and the use of them and at its own expense to add to or install with the Leased Equipment any safety or other equipment required by any applicable law or regulation to be so added or installed for the use or operation of the Leased Equipment and to protect the Leased Equipment against distress execution or seizure (g) to indemnify the Company against all losses charges and damages however incurred by the Company by reason of failure by the Customer to comply with any of the terms of the Agreement. (h) to insure the Leased Equipment and keep the Leased Equipment insured throughout the Lease Term and any extension thereof (in the joint names of the Company and the Customer) for their full replacement value against all risks on a comprehensive policy without restriction or excess (i) to insure the Company and the Customer against all liability to third persons for death personal injury and damage to or loss of property arising directly or indirectly out of the use possession or operation of the Leased Equipment for such amount as the Company may stipulate from time to time or in the absence of any such stipulation for such amount as is prudent in all the circumstances; (j) to pay punctually all premiums due for such insurance and to produce to the Company on request the policy or policies together with evidence of payment of the premiums and agrees that the Company may effect the insurance referred to in clause 7.3(h) if the Customer has failed to do so (though it is not under any obligation so to do) and to reimburse the Company on demand the cost of so doing; (k) to pay to the Company upon the expiry of 30 days after a Total Loss (or on such later date as the Company may agree) an amount equal to the sum of: (i) all arrears of Equipment Rent including apportioned Equipment Rent for any broken period as a result of the Total Loss (ii) such sum as is required to compensate the Company for the loss or destruction of or damage to the Leased Equipment; (l) if on the expiry of the period of 30 days from the date of the Total Loss the insurers have not made payment to the Company under the policy or policies maintained in compliance with clause 7.3(h) above the Customer shall pay to the Company upon demand such sum as shall calculated and paid under the terms of clause 7.3(k); (m) if the Leased Equipment sustains loss or damage not amounting to a Total Loss forthwith to notify the Company and to make good such damage and to apply all insurance moneys payable in making good such damage and upon being requested by the Company so to do forthwith to assign to the Company all the Customer's rights benefits and claims under any relevant policy of insurance and (n) to be solely responsible for and to indemnify the Company in respect of all loss of or damage to the Leased Equipment (in so far as the Company is not reimbursed by the proceeds of insurance in respect thereof) however caused occurring at any time or times before they are redelivered to the Company; (o) to keep the Leased Equipment at the Premises; (p) to indemnify the Company against all loss actions claims demands proceedings (whether criminal or civil) costs legal expenses (on a full indemnity basis) insurance premiums and calls liabilities judgments damages or other sanctions whenever arising directly or indirectly from the Customer's failure or alleged failure to carry out its duties under these Supplementary Terms or by reason of any loss injury or damage suffered by any person (including without limitation the Company) from the presence of the Leased Equipment or the delivery possession hiring transportation condition use operation removal or return of them or their sale or disposal by the Company or any defect in the Leased Equipment or the design manufacture testing maintenance or overhaul of them or the Company exercising any right in respect of the Leased Equipment or their ownership or hiring (q) to deliver up the Leased Equipment in good repair and working order at the expiration of the Lease Term or extensions thereof or upon earlier determination of this agreement or the hiring under it at such address in the United Kingdom as the Company shall notify to the Customer and to allow the Company its agents or representatives access to any Premises where the Leased Equipment may be for the purpose of inspecting and removing them and if the Company requires to carry out any servicing maintenance repair or other work to the Leased Equipment as a result of any failure of the Customer in its obligations under the Agreement to reimburse the cost thereof (together with VAT thereon) to the Company forthwith upon demand.
7.4 The Company shall at all times retain the ownership of and title to the Leased Equipment and the Customer shall have no interest in the Leased Equipment save as is provided by these Supplementary Terms. Notwithstanding that the Leased Equipment may have been affixed to any land or building the Company shall continue to be the owner of them and they shall as between the Company and the Customer and their respective successors in title remain the personal property of the Company
7.5 The continuance of this Agreement or the Customer's liability for payment of Equipment Rents and all other sums under it shall not be affected in any way by the loss theft Total Loss or any damage to in the Leased Equipment.

8. MAINTENANCE SERVICES
8.1 Subject to an accepted Order, the Maintenance Services shall be provided to the Customer for the Initial Period. The Initial Period shall be extended for subsequent 12 month periods except and until either party gives to the other not less than 3 months notice to terminate the Maintenance Services, such notice expiring on the final day of the Initial Period and each subsequent anniversary.
8.2 In the event of any failure in the Equipment due to the Excluded Maintenance Services, the Company reserves the right to charge the Customer for attendance at the Premises, costs of repair, and engineering charges which shall be payable by the Customer to Company at the Rates in accordance with these Supplementary Terms.
8.3 In the event that the Customer wishes to terminate the Maintenance Services during the Initial Period or extension thereof, prior to the last day of the Initial Period or extension thereof, Company reserves the right to enforce a cancellation charge equal to 100% of the total Maintenance Fees payable under the Agreement.

9. PRICES AND PAYMENT
9.1 All Charges for the Equipment are exclusive of delivery and installation unless otherwise expressly provided in the Order.
9.2 All Charges for Installation Services are subject to survey of the Premises and/or Other Equipment. Where, following such survey the Company considers it appropriate or necessary in the circumstances to provide the Installation Services:
(a) wholly or in part, utilizing non-standard Equipment, more expensive methods or additional work than it normally incurs; or
(b) at the Customer’s request, the Installation Services are provided at greater expense by reason of the type of materials used, the length or manner of installation than the Company normally incurs; then Company in addition to (or instead of) the Charges set out in the Order, may determine a supplementary charge be payable in relation to the Installation Services.
9.3 Company shall inform the Customer of any supplementary charges payable in accordance with clause 9.2, and the Customer may, in a case where clause 9.2(a) applies cancel the relevant part of the Installation Service by written notice to Company prior to commencement of the Installation Services or within 2 Working Days of notification of such supplementary charges, whichever date is earlier. In the event that the Customer cancels the Installation Services as provided in this clause, the Customer shall pay the Company’s reasonable costs incurred in the performance of the Order prior to cancellation, such costs being chargeable at the Rates.
9.4 The Charges (excluding the Rental) shall be invoiced as follows:
(a) 30% of the Charges (excluding the Rental) shall be invoiced when the Company accepts the Order; and
(b) the remaining 70% of the Charges (excluding the Rental) shall be invoiced on Acceptance.
9.5 The Rental is payable and shall be invoiced monthly in advance on Acceptance
9.6 All Charges, Maintenance Fees, and Equipment Rent shall be paid within 30 days of the date of invoice by Standing Order.
9.7 In the event that any issue is referred to the Company by the Customer or any End User pursuant to the Company’s agreement to provide Maintenance Services, and following investigation by the Company, the Company determines in its reasonable opinion that (1) such issue has arisen as a result of circumstances described in the Excluded Maintenance Services, or (2) the Customer has failed to comply with its obligations under this Agreement in respect of the Maintenance Services, the Customer shall be charged by the Company for any work carried out in connection with such issue at the Rates.
9.8 Charges for the Rates due under this Agreement are exclusive of travel, accommodation and sustenance expenses incurred by the Company. In addition to the Rates the Customer shall reimburse the Company in respect of such reasonable travel, accommodation and sustenance expenses incurred by the Company. The Company shall invoice the Customer monthly in arrears for such Charges.

10. CONSEQUENCES OF TERMINATION
10.1 Without prejudice to any other provisions in this Agreement expressed to have effect upon termination, on termination of the Agreement or Order (in which case the following provisions shall apply to said Order) by the Customer other than in accordance with its express terms or on termination of the Agreement by the Company under clause 10 of the GTCs;
(a) the Customer shall immediately cease to use the Leased Equipment and Equipment for which payment has not been received in full and in which title has not passed to the Customer;
(b) the Customer shall permit the Company (or procure permission for the Company) to enter the Premises or any other premises at which the Equipment referred to at Clause 10.1(a) is located in order to remove such Equipment;
(c) the Customer shall pay all amounts due under the Agreement within 10 days .
10.2 Forthwith upon the hiring of the Leased Equipment being determined (except by the Customer as expressly provided in the Agreement) the Customer shall pay to the Company:
(a) all arrears of Equipment Rent plus any interest due including apportioned Equipment Rent for any broken period;
(b) damages for any breach of the Agreement and all expenses and costs incurred by Company in retaking possession of and selling or re-hiring the Equipment or attempting to sell or re-hire the Equipment and/or enforcing its rights under the Agreement; and
(c) Equipment Rent which would have been payable for the remainder of the Lease Term less discount at the rate of 3 per cent per annum for accelerated payment, calculated from the date of payment until the date such payment would otherwise have been made; and
(d) all other sums due from the Customer to Company under this Agreement.
10.3 It is the responsibility of the Customer, upon termination of the lease, to return the Equipment and keep all Leased Equipment safe and free from damage until returned to Company.
10.4 Upon return of the Leased Equipment the Company will inspect the Leased Equipment for any loss or damage. If any loss or damage is discovered, other than fair wear and tear, then Company shall notify the Customer of such loss or damage within a reasonable time. The Customer shall be responsible for compensating Company for any costs incurred in repairing or replacing the Leased Equipment and any loss of revenue to Company whilst the Leased Equipment is not available for hire.
10.5 In the event the Customer disputes the costs or liability pursuant to clause 10.4 and wishes to inspect the Leased Equipment, the Customer must give notice in writing of his intentions within 48 hours of Company initial report. The Customer shall be entitled inspect the Leased Equipment within 7 days of giving notice of his intentions, otherwise the Customer must accept the valuation costs notified to him by Company.

Appendix 1

Maintenance Services
The Maintenance Services shall consist of the correction of defects in the Equipment supplied by the Company (“Equipment Fault”) in accordance with the following. For the avoidance of doubt the Maintenance Services are subject to the provisions of the Excluded Maintenance Services below. The Company shall use reasonable endeavours to:

  • provide a Response to the Customer.
  • investigate the Equipment Fault and where available provide a remote Fix.
  • where a remote Fix is not available confirm with the Customer when an engineer will be sent to Customer Premises.
  • provide a Site Visit.
  • provide a Fix for the Equipment Fault.
  • provide telephone support to Customers for reported Equipment Faults during the Cover Period;

“Response” means a response regarding the Equipment Fault by telephone, email or other method from the Company’s support centre personnel to operatives of Customer.
“Site Visit” means a visit to the Customer Premises by an engineer to investigate the Equipment Fault.
“Fix” means using reasonable endeavours to correct the Equipment Fault.