Terms and Conditions relating to the supply of Equipment and Services
1.1. In these Terms:
"BT" means British Telecommunications Public Limited Company (registered in England & Wales under company registration number 1800000);
"Business Day" means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
"Charges" means the charges to be applied for individual telephone call charges (exclusive of VAT) and monthly line rental (if any) payable by the Customer to the Company set out in the Contract or as may be notified by the Company to the Customer from time to time;
"Commencement Date" means the date for the Commencement of each Service specified in the Contract or, in the absence of any such date in the Contract, the date of delivery of any Equipment or the date the Company actually begins to provide any Service;
"Company" means Lascom Communications Limited (registered in England & Wales under company registration number 5172120);
"Company's Equipment" means such equipment owned or used by the Company in connection with the provision of the Fixed Line Service;
"Company's Network" means the telecommunications system operated and maintained by the Company;
"Contract" means any contract between the Company and the Customer for the supply of Services incorporating these Terms and the Support Pack;
"Customer" means the person, firm or company whose details are set out in the Contract;
"Equipment" means any equipment to be supplied by the Company to the Customer as set out in the Contract;
"Equipment Price" means the price for the Equipment set out in the Contract;
"Fixed Line Service" means the allocation of Numbers by the Company and access to such of the Company's Equipment and related services to enable the Customer to make or receive a telephone call using one or more of an access code, calling line identity, dedicated leased line and/or a third party's exchange lines to route selected telephone calls over and via the Company's Network;
"Free-phone Service" means the allocation of Numbers by the Company and access by the Customer to such of the Company's Equipment to enable the Customer to receive telephone calls from third parties at no expense to the third party;
"Further Term" means a period of 12 months beginning on the date of any Upgrade or, if later, the expiry of the Initial Term or any Further Term in the event that notice is not served under clause 14.4;
"Initial Term" means, in respect of each Service, the Initial Term specified in the Contract or, in the absence of such, 36 months from the Commencement Date in respect of each Service;
"Internet Service" means the services relating to the Customer's connection to the internet and internet supply.
"Maintenance Service" means the maintenance service provided by the Company to the Customer, details of which are set out in the Support Pack;
"Mobile Service" means the allocation of Numbers by the Company and access by the Customer to such of the Company's Equipment and related services to enable the Customer to make or receive telephone calls using a cellular/mobile telephone;
"Modifications" means any modifications which the Company may require the Customer to make to the Premises prior to the Commencement Date as set out in the Contract which may include but is not limited to the installation of or connection to any equipment required to be installed by any network operator in order to facilitate the operation of the Equipment;
"Numbers" means the telephone numbers to be allocated by the Company;
"Order" means the Customer's order for Services as set out in the Contract;
"Premises" means the premises of the Customer where the Company's Equipment or Equipment, as the case may be, is to be installed, details of which are set out in the Contract or such other premises as may be notified to the Company from time to time and as approved by the Company following the completion of a satisfactory Site Survey;
"Services" means the Fixed Line Service, the Free-phone Service, the Internet Services and/or the Mobile Service as set out in the Contract;
"Site Survey" means a survey to be carried out at the option of the Company at the Premises to ascertain the suitability of the Premises for the installation of the Company's Equipment or the Equipment;
"Support Pack" means the support pack supplied by the Company to the Customer as may be modified from time to time by the Company;
"Terms" means the terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Company and the Customer in the Contract; and
"Upgrade" means an upgrade to the Equipment or Service made by the Company at the request of the Customer or, at the discretion of the Company, by the Company in order to maintain full functionality of the Equipment and/or the Service as the case may be.
1.2. Any reference in these Terms to a statute or a 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.
1.3. The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Equipment and/or Services in accordance with these Terms.
2.2 The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point the Contract shall come into existence with effect from the Commencement Date(s). Delivery of the Equipment and/or the provision of Services by the Company shall constitute acceptance by the Company of an Order.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Company relating to the Equipment and/or the Services, and any descriptions or illustrations contained in any catalogues or brochures (including without limit any specifications, technical data, performance criteria or storage information) are issued in good faith for guidance purposes only and do not form part of the Contract or have any contractual force.
2.5 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which may be implied by trade, custom, practice or course of dealing.
2.6 Provisions relating solely to the Fixed Line Service, Free-phone Service, Internet Service or Mobile Service (as the case may be) are set out in these Terms and are to govern those Services only but are to be read in conjunction with provisions relating to the Services generally.
2.7 Following completion of a Site Survey, the Company may require Modifications to be made to the Premises in accordance with clause 5.1.6 or the Company may require changes to be made to the scope or execution of the Services. Within a reasonable time of completion of the Site Survey, the Company shall submit details of any such changes to the Customer in writing providing a written estimate to the Customer of:
2.7.1 Any changes to the Commencement Date;
2.7.2 any necessary variations to Charges arising from the changes; and
2.7.3 any other impact of the change on the Contract.
2.8 If the Customer does not agree to the changes within 7 days of the date of receipt of notice from the Company under clause 2.7, the Contract shall be deemed void from the beginning without liability on either party.
2.9 Save for any changes to the Contract made in accordance with this clause 2, no variation of the Contract shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
3. Commencement and Duration
3.1 Unless otherwise agreed by the Company in writing the Company shall supply each Service for the Initial Term unless a Further Term has been triggered during the Initial Term in which case the Company shall continue to provide each Service during the Further Term and thereafter shall continue until terminated in accordance with clause 14.4.
4 Supply of Services
4.1 Subject to the completion of a satisfactory Site Survey, the Company warrants to the Customer that the Services will be performed by appropriately qualified and trained personnel, and in accordance with the standards of a competent telecommunications provider (and in compliance with applicable BT and any other appropriate regulatory requirements) and with reasonable skill and care.
4.2 The Company shall use all reasonable endeavours to meet any performance dates specified in the Contract including the Commencement Dates, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
4.4 The Company reserves the right upon giving to the Customer not less than seven days written notice to alter (without incurring any liability) the Number(s).
5 Customer's obligations
5.1 The Customer:
5.1.1 shall ensure that the terms of the Order are complete and accurate;
5.1.2 shall co-operate with the Company in all matters relating to the Services;
5.1.3 warrants that the Customer’s existing telecommunications equipment (if any) is in proper working order and complies with all applicable standards and approvals so as to enable the Company to supply and continue to supply the Services;
5.1.4 shall provide the Company, its employees, agents, consultants and subcontractors, with access to the Premises as reasonably required by the Company;
5.1.5 shall provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
5.1.6 shall prepare the Premises for the supply of the Services and carry out any Modifications at the Customer’s expense and in accordance with the reasonable instructions of the Company;
5.1.7 shall obtain and maintain all necessary licences, permissions and consents which may be required before the Commencement Date;
5.1.8 shall not sell or transfer or attempt to sell or transfer any Number provided to the Customer by the Company for in connection with the Services;
5.1.9 shall not use the Services for any improper or unlawful purposes (including without limitation offensive, indecent, menacing, nuisance or hoax telephone calls) nor allow others to do so; and
5.1.10 keep and maintain the Customer’s Equipment at the Premises in safe custody at its own risk, and not dispose of or use the Equipment other than in accordance with the Company’s written instructions or authorisation.
5.2 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
5.2.1 the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
5.2.2 the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.2.3 the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
6 Fixed Line Service
6.1 The Company shall place such of the Company’s Equipment in the Premises as may be necessary in order to provide the Fixed Line Service.
6.2 In the event that the Customer’s existing telecommunications equipment has least cost routing software, the Customer hereby authorises the Company to reprogram such existing telecommunications equipment in order to facilitate connection to the Company’s Network notwithstanding any manufacturer’s or supplier’s warranty or guarantee that may be in place in respect of such equipment and the Company does not accept any liability for the invalidation of any such guarantee or warranty.
7 Mobile Service
7.1 The Customer acknowledges that owing to the nature of cellular/mobile telecommunications:
7.1.1 the Company cannot guarantee a fault-free or uninterrupted supply of the Mobile Service;
7.1.2 the quality of cellular/mobile telephone calls depends partly upon the applicable cellular/mobile telephone used by the Customer and partly upon the telecommunications network to which such cellular/mobile telephone is connected;
7.1.3 the Mobile Service will only be available in areas covered by the telecommunications network to which the applicable mobile/cellular telephone is connected; and
7.1.4 the quality of the Mobile Service may be adversely affected by atmospheric conditions and geographical or architectural features.
7.2 The Customer shall immediately inform the Company in the event that the applicable cellular/mobile telephone or any constituent part of it is lost or stolen.
7.3 The Customer acknowledges that the Company may charge the Customer for cellular/mobile telephone calls received by the Customer whilst outside of the United Kingdom in accordance with the Charges.
7.4 The Customer acknowledges that the Company may charge the Customer for changes to the number allocated to the cellular/mobile telephone (if any) supplied as part of the Mobile Service.
8 Freephone Service
8.1 The Customer shall promptly inform the Company of any event which is likely to substantially affect the number of calls to the free-phone Number(s) allocated to it by the Company so as to enable the Company to devote appropriate telecommunications capacity to such free-phone Number(s).
9 Internet Service
9.1 The Company shall place such of the Company’s Equipment in the Premises as may be necessary in order to provide the Internet Service.
9.2 The Company cannot guarantee a fault-free or uninterrupted supply of the Internet Service.
10.1 The Company shall sell and the Customer shall purchase the Equipment in accordance with the Contract.
10.2 The Customer acknowledges that the Company does not manufacture the Equipment. Consequently, the Customer shall only be entitled to the benefit of any warranty or guarantee in relation to the Equipment as is given to the Company by the manufacturer of such Equipment.
10.3 It shall be the Customer's responsibility to ensure that the Equipment is suitable for its intended purpose. Any knowledge that the Company has of the Customer's intended purpose shall not, unless otherwise agreed in writing, imply any warranty that the Equipment is suitable for that purpose.
10.4 Any claim by the Customer which is based on any defect in the quality or condition of the Equipment or their failure to correspond with any agreed specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 7 days from the date of delivery or of the date the Company tendered delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Equipment and save as expressly provided in these Terms the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the Equipment Price.
11.1 Unless otherwise agreed by the Company in writing, the Customer shall pay the Equipment Price upon delivery of the Equipment.
11.2 Unless otherwise agreed by the Company in writing, the Customer shall pay the Charges for each Service used by the Customer (including in respect of telephone calls made other than by the Customer and where the Services have been unlawfully accessed and used by third parties) by direct debit within 14 days of the date of the Company’s invoice (which shall be deemed to be accepted by the Customer unless the Customer indicates that the invoice is disputed (and provides evidence to support this) within 14 days of the date of the Company’s invoice). Time for payment shall be of the essence of the Contract.
11.3 Upon termination of the Contract for whatever reason, the Company shall be entitled to draw down an additional sum equivalent to the average of Charges invoiced in respect of Services used by the Customer in the six month period immediately preceding the date of termination, excluding any Charges attributable to line rental (the “Closing Payment”). Within a reasonable period of time after the date of termination, the Company shall prepare a final invoice in respect of the actual charges incurred by the Customer in the final month prior to the date of termination and promptly repay any overpayment made by the Customer. In the event the Closing Payment is less than the actual amount due for Services, the Customer shall immediately pay the deficit to the Company upon receipt of the final invoice.
11.4 In the event the Customer wishes to use a payment method other than direct debit, the Company reserves the right to charge an additional administration charge in respect of processing each payment of £5 per month or such other sum as the Company may notify to the Customer from time to time.
11.5 Unless otherwise agreed by the Company in writing, the Customer shall pay the Company’s standard call out/repair charges (as notified to the Customer from time to time) if the Customer reports a fault in the Services and the Company discovers that there is not a fault or that the Customer has caused the fault.
11.6 If the Customer fails to make any payment on the due date under the Contract then, without limiting any other right or remedy available to the Company, the Company may charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of the greater of a fee of £75 or 4% per annum above Lloyds TSB Bank plc’s base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). In addition, the Company shall be entitled to recover any legal and administration costs incurred by it in recovering any amount unpaid.
11.7 In the event the Customer wishes to transfer any Number to another service provider on termination of the Contract, the Company will provide all reasonable assistance to the Customer in doing so, subject to payment of a reasonable termination fee in full prior the actual date of termination.
12 Risk and Property
12.1 Nothing in the Contract shall be construed as transferring ownership from the Company to the Customer of the Numbers and the Customers right to use the numbers shall cease on termination of the Contract for whatever reason.
12.2 Unless otherwise agreed by the Company in writing, risk of damage to or loss of the Equipment shall pass to the Customer on delivery in accordance with the Contract.
12.3 Unless otherwise agreed by the Company in writing, the property in the Equipment shall only pass to the Customer once the Company has received in cash or cleared funds payment in full of the Equipment Price.
12.4 Until such time as the property in the Equipment passes to the Customer, the Customer shall hold the Equipment as the Company's fiduciary agent and bailee, and shall keep it separate from that of the Customer and third parties and properly stored, protected and insured and identified as the Company's property.
12.5 Until such time as the property in the Equipment passes to the Customer, the Company shall be entitled at any time to require the Customer to deliver up the Equipment to the Company and, if the Customer fails to do so forthwith, to enter upon the Premises or the premises of any third party where the Equipment is stored and repossess the Equipment.
12.6 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Equipment which remain the Company's property, but if the Customer does so all moneys owing by the Customer to the Company shall (without limiting any other right or remedy of the Company) forthwith become due and payable.
12.7 Unless otherwise agreed by the Company in writing, the property in the Company’s Equipment shall remain with the Company notwithstanding the delivery of the Company’s Equipment at the Premises. The Customer agrees to indemnify the Company for all costs, claims or expenses incurred by the Company as a result of damage to or loss of the Company’s Equipment whilst such equipment is at the Premises.
13 Indemnity and Limitation of Liability
13.1 The Customer shall indemnify the Company in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Company as a result of or in connection with the Customer’s breach of the Contract.
13.2 Whilst every effort is made by the Company to ensure that the Services are securely provided to the Customer, the Company expressly excludes any liability for any loss or damage caused to the Customer where Charges are incurred as a result of unlawful access to the Services by third parties.
13.3 Nothing in these Terms shall limit or exclude the Company’s liability for:
13.3.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
13.3.2 fraud or fraudulent misrepresentation; or
13.3.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.4 Subject to clause 13.1:
13.4.1 the Company shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including any losses that may result from a deliberate breach of the Contract by the Company, its employees, agents or subcontractors; and
13.4.2 the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Company, its employees, agents or subcontractors shall not exceed £100,000.
13.5 Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.6 This clause 13 shall survive termination of the Contract.
13.7 The statutory rights of consumers are not affected.
13.8 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Services, if the delay or failure is beyond the Company’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
13.8.1 default or failure of a third party (including any public telecommunications network operator or maintainer);
13.8.2 failure in the supply of any third parties’ telecommunications system;
13.8.3 Act of God, explosion, flood, tempest, fire or accident;
13.8.4 war or threat of war, sabotage, insurrection, civil disturbance or requisition; or
13.8.5 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
14 Suspension and Termination
14.1 The Company may suspend any Service immediately if:
14.1.1 the Company has reasonable grounds for believing that the Equipment is being used or may be used in an unauthorised or illegal manner; or
14.1.2 the Customer is in breach of any of the terms of the Contract; or
14.1.3 the Customer notifies the Company that the Equipment is lost or stolen; or
14.1.4 the Company’s Network fails or is being tested, modified or maintained; or
14.1.5 the Customer fails to pay to the Company any charges when they become due; or
14.1.6 the Customer incurs unbilled telephone call charges in excess of those anticipated by the Company or as otherwise agreed with the Customer.
14.2 In the event that the Company suspends the Services pursuant to clause 14.1:
14.2.1 the Company will not provide the applicable Services again until the Customer takes such action as may in the Company’s absolute discretion be required; and
14.2.2 the customer shall continue to be responsible for the Company’s charges in accordance with clause 11 until the Company ends the Contract by giving notice in accordance with clause 14.3 or the Customer terminates the Contract by giving notice in accordance with clause 14.4 (such termination not to be unreasonably delayed by the Company).
14.3 The Company may terminate the Contract in respect of all or part only of the Services without liability to the Customer by giving notice to the Customer at any time if:
14.3.1 the Customer commits any breach of the Contract and, in the case of a breach capable of remedy, fails to remedy the same within 14 days after receipt of written notice from the Company giving particulars of the breach and requiring it to be so remedied; or
14.3.2 the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
14.3.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
14.3.4 there is a change of control of the Customer (as control is defined by section 1124 of the Corporation Taxes Act 2010); or
14.3.5 the Customer ceases, or threatens to cease, to carry on business or substantially changes the nature of its business or changes the structure under which the business operates; or
14.3.6 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
14.4 The Customer may terminate the Contract in respect of all or part only of the Services by giving three month’s written notice to the Company to expire at the end of the Initial Term or any Further Term.
15 Consequences of Termination
15.1 In the event that the Contract is terminated in accordance with clause 14:
15.1.1 the Customer will permit the removal of any of the Company’s Equipment situate or installed at the Premises;
15.1.2 the Customer will be responsible for all outstanding charges for the remainder of the Initial Term or any Further Term, as the case may be, together with any disconnection fee notified to the Customer and the Customer shall have no right to withhold or set off any such amounts;
15.1.3 if the Fixed Line Service or Internet Service is terminated by reason of the Customer’s breach of the Contract, the Company reserves the right to charge the Customer for its reasonable costs in respect of the installation of the Company’s Equipment; and
15.1.4 if any Service is terminated by reason of the Customer’s breach of the Contract following an Upgrade, the Company reserves the right to charge the Customer in full the cost of any equipment provided as part of the Upgrade.
16.1 The Contract is personal to the Customer and the Customer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract without the Company’s prior written consent. The Company may assign or transfer any of its rights or sub-contract any of its obligations under the Contract at any time.
16.2 A notice required or permitted to be given by the Customer to the Company under these Terms shall be in writing addressed to the address set out in the Company’s last invoice to the Customer. A notice required or permitted to be given by the Company to the Customer under these Terms shall be in writing addressed to the address to which the Company’s last invoice to the Customer was sent. All such notices shall be served in writing by registered or recorded delivery post or delivered by hand.
16.3 The Company may register information about the Customer with a licensed credit reference agency. This information may be used to make credit decisions by the Company and third parties. The information may also be used to prevent fraud and to trace debtors.
16.4 The Company may monitor and record telephone calls made to it by the Customer for training purposes.
16.5 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
16.6 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
16.7 The Contract shall be governed by the laws of England, and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.
16.8 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.