- Definitions and Interpretation
Onecomms: The brand name for all Voice over IP products and Services provided by Computerised Business Systems Limited
Agreement: means these Terms and Conditions together with the Order and any document referred to in the Order.
Associated Company: means any company which is a parent company of the relevant entity or a subsidiary of such parent company, where parent company and subsidiary have the meanings set out in Section 736 of the Companies Act 1985.
BT: means British Telecommunications plc and its Associated Companies.
Call Charge: means the Supplier’s charges for calls (billed in tenth-second units and the aggregate rounded up to the next £0.01) made on the System (including reverse charge calls) as specified in the Order or otherwise notified by the Supplier.
CBS: means Computerised Business Systems Limited (Company number 04180117)
Charges: means any or all of the charges or other sums payable by the Customer pursuant to this Agreement.
Connection Charge: means the non-refundable charge payable by the Customer for installation and connection to the System as specified in the Order or otherwise notified by the Supplier.
Customer: means the party purchasing the Service, as named in the Order.
Early Termination Fee: means the amount determined in its discretion by the Supplier and notified to the Customer following early termination, not exceeding (a) the Rental for the balance of the Minimum Period that remains outstanding or (b) if no Rental is payable, an early termination administration fee of £95.00 plus VAT.
Exchange Line: means apparatus forming part of the System used by the Supplier to connect the Site to a telephone exchange to provide the Service.
IPR: means all intellectual property rights including, without limitation, copyright, patents, trade marks, registered designs, design rights, mask works, know how and all other similarly protected rights.
Migration Charge(s): means the processing charge(s) payable by the customer following an outbound migration of any telephone numbers to another telecommunications provider.
Minimum Period: means twelve (12) months (or such longer period as is referred to in the Order) from the date that the Service is first delivered to the Customer. If the Service is provided in discrete elements (such as separate Exchange Lines or separate Sites) then each discrete element shall have its own Minimum Period.
Offending Material: means any material, data, images or information that is: (i) in breach of any law, regulation, code of practice or Supplier’s acceptable use policy (available on www.cbsys.net) or (ii) offensive, indecent, defamatory, obscene or menacing or otherwise offensive, or(iii) in breach of confidence, IPR, privacy or any right of a third party.
Ofcom: means the Office of Communications or any similar office (or nearest equivalent overseas regulator, if applicable) that may be appointed in addition or in substitution.
Order: means the Service or Sales Order Agreement or such other document(s) that the Supplier deems to constitute the Order.
Rental: means the monthly fee (including line rental, equipment rental, and other rental) payable by the Customer for the Service, as set out in the Order or otherwise notified by the Supplier.
Service: means any and all of the services that the Supplier has agreed to supply to the Customer, as set out in the Order.
Site: means any or all of the Customer’s sites at which the Supplier is providing the Service.
Supplier: means Computerised Business Systems Limited (Company number 04180117) whose registered office is at 554-556 Barton Road, Stretford, Manchester, M32 9TD.
Supplier’s Equipment: means any equipment owned by the Supplier or its licensors that the Supplier uses to provide the Service.
System: means the electronic communications network that the Supplier uses to provide the Service.
VoIP: means Voice over IP, a method of communication made via a computer network infrastructure.
Working Day: means 09:00 to 17:00 Monday to Friday but excluding public holidays in the relevant part of the United Kingdom.
Any reference in this Agreement to any provision of a statute or regulation shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
- Duration and Scope of this Agreement
2.1 This Agreement commences on the date of acceptance of the Order by the Supplier and will continue (subject to Clause 7) until terminated by either party on thirty (30) days (or such longer period as is referred to in the Order) written notice, to expire on or after the end of the Minimum Period. If the Customer terminates this Agreement after the Minimum Period and fails to give such written notice, the Customer shall (without prejudice to the Supplier’s other rights) pay the remaining charges for the minimum period, and an administration charge of £95.00 plus VAT.
2.2 If the Customer terminates the Agreement (other than validly under Clause 7) during the Minimum Period, the Customer shall (without prejudice either party’s other rights including in respect of Charges payable for the period up to the date of termination) pay the Early Termination Fee and any Migration Charges incurred due to transferring one or more telephone numbers to another telecommunications provider.
2.3 If no Rental is payable and the Customer does not (other than for reasons of the default of the Supplier or Clause 9) incur Call Charges in any month during the Minimum Period, the Customer shall in respect of each such month pay a minimum invoice Charge of £5.00 plus VAT.
2.4 The Customer shall provide such information as is reasonably requested by the Supplier, and also access to the Site for the Supplier, BT and anyone acting on their behalf, to carry out their obligations. The Customer acknowledges that the Supplier may not be readily able to process the provision of the Service until such information and access is provided.
2.5 The Customer shall provide a suitable and safe working environment for the Supplier, BT and anyone acting on either of their behalf, to the Customer’s premises.
- The Supplier’s General Obligations
3.1 The provision of the Service is subject to all relevant licences, infrastructure (or interconnect arrangements) and consents being in place. The Supplier shall use reasonable endeavours to meet any agreed dates but shall not be liable for failure to meet them. The Customer shall obtain any consent (including landlord’s consent) or facility that is reasonably requested for the Supplier to provide the Service on the Site.
3.2 The Supplier shall exercise the reasonable care and skill of a competent communications operator but the Service cannot be guaranteed to be fault free at all times.
3.3 The Customer shall report any fault to the Supplier’s Customer Services Department, where it will be dealt with in accordance with any agreed fault repair service. The Supplier may request that the Customer first have its designated maintainer check and/or re-program the Customer’s equipment. If the Supplier agrees to fix a fault that is caused by the Customer or that otherwise falls outside the responsibility of the Supplier or where no fault is found, the Supplier may charge the Customer for any work that the Supplier has undertaken at its applicable man-hour rate.
3.4 Where the Supplier allocates telephone numbers to the Customer, the Customer will not (without prejudice to any statutory number portability rights) acquire any rights whatsoever in such telephone numbers. The Customer will not apply for registration of the telephone numbers as part of a trademark. The Supplier may change any telephone number allocated to the Customer after giving reasonable notice where such change is necessary or desirable to comply with the law, any Ofcom decision or for operational reasons.
3.5 The Supplier does not accept any liability for claims relating to the Customer’s ability to use or to continue use of a particular telephone number.
- The Customer’s Obligations
4.1 The Customer shall not utilise and shall ensure that no other person uses the Service:
i. For sending, knowingly receiving, uploading, downloading, using or re-using any Offending Material; or
ii.Unlawfully or fraudulently or in breach of any legislation; or
iii. To make nuisance Calls; or
iv. Contrary to instructions that the Supplier may reasonably give to the Customer from time to time.
4.2 The Customer will provide the Supplier with all information that the Supplier reasonably requests and allow the Supplier to use that information for credit checking and debt collection (including disclosure to and use by third parties acting for the Supplier) and any other uses and disclosures allowed by the Data Protection Act 1998 and will allow the Supplier to disclose such information to the extent that the Supplier is required to do so by Ofcom, the law or any relevant authority. In addition, the Customer consents to the Supplier disclosing to BT, and BT processing, the Customer’s personal data for the purposes of the performance by BT of its obligations in so far as relevant to this Agreement.
4.3 The Customer shall keep all of the Supplier’s Equipment and BT’s equipment at the Site safe and shall pay for the replacement and/or repair of any of the Supplier’s Equipment or BT’s equipment which is lost, damaged (otherwise than by fair wear and tear) or destroyed. The Customer shall not alter or move any of the Supplier’s Equipment or BT’s equipment, nor do anything that is likely to damage or adversely affect its performance, nor remove or deface any words or signs on it, nor permit anyone else to do so. The Customer shall not sell, let, mortgage, charge, pledge, dispose of or do anything that would prejudice the Supplier’s Equipment or BT’s equipment or the System in any way. The Customer will allow the Supplier to inspect, test, modify, change, add to, replace or remove any Supplier’s Equipment or BT’s equipment, either remotely or via a designated maintainer. At the end of the term of the Agreement, the Customer will allow the Supplier and BT access at all times to collect any of the Supplier’s Equipment and BT’s equipment at the site or in the Customer’s possession or control.
4.4 The Customer shall, at its own cost, arrange for the required Site specific conditions, as notified by the Supplier. This will include, without limitation, a suitable location, mains electricity supply, connection points and computer terminals. In addition, the Customer shall comply with any reasonable instructions given by the Supplier or BT which they respectively believe are necessary for health, safety or the quality of the Service.
4.5 The Customer shall ensure that any equipment (excluding Supplier’s Equipment) that it uses in connection with the Service meets any legal or regulatory requirements and is approved for connection to the System. If not, the Customer must immediately disconnect it or allow the Supplier to do so at the Customer’s expense.
5.1 The Customer shall pay for the Connection Charge when the Service is available to the Customer, for the Rental monthly in advance and for the Call Charges after the end of the month in which the relevant calls were made. The Customer shall pay all Charges whether the Customer or someone else uses the Service. The Call Charges will (in the absence of fraud or manifest error) be calculated using the details recorded or logged by the Supplier and not details recorded by the Customer. Where no Rental Charge is payable, the Customer shall pay a minimum of £5.00 per month plus VAT Charges.
5.2 The Customer shall pay any charges for cancellation, abortive visits, engineering visits or site surveys, or maintenance service imposed on the Supplier by BT relating to the Service, save where such abortive visit or service maintenance charges arise through the Supplier’s default.
5.3 If the Customer disputes any invoice, it must notify the Supplier within thirty (30) days of the date of the invoice giving its reasons.
5.4 The Charges are exclusive of Value Added Tax, which shall be payable by the Customer in addition to the Charges at the rate applicable from time to time.
5.5 The Customer shall (without set-off or deduction) pay in Pounds Sterling all invoices issued by the Supplier within thirty (30) days (or such other period as is specified in the Order) of the date upon them. If the Customer’s credit rating decreases at any time, the Supplier shall be entitled to revise the credit terms to require payment in less than thirty (30) days. If the Customer fails to make payment by the due date in full, in addition to the Supplier’s right to suspend set out in Clause 6.1, the Supplier may charge an administration fee and/or interest at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998 on any amounts outstanding from the due date for payment until payment is made in full. Time is of the essence in relation to payments due from the Customer, and the Supplier reserves the right to treat any failure to pay on time as a repudiatory or material breach by the Customer. In addition, the Customer shall pay all reasonable third party costs incurred by the Supplier in securing payment from the Customer.
5.6 Where the Charges are fixed for the Minimum Period, the Supplier may at any time with effect on or after the expiry of the Minimum Period, change the level of its Charges after giving the Customer four (4) weeks written notice of its intention to do so. This notice may be included in an invoice to the Customer.
5.7 The Supplier may also change the level of its Charges during or after the Minimum Period, retrospectively as well as prospectively, as a consequence of (a) any Ofcom direction, determination, order or similar decision, or (b) any change in BT’s wholesale or interconnect charges to the Supplier. In both cases, the Supplier shall only be entitled to change the level of its Charges where the foregoing impacts upon the basis upon which the Charges were calculated. This notice may be included in an invoice to the Customer.
- Suspension and Variation of the Service
6.1 The Supplier may suspend or vary the Service (without compensation unless directly due to the default of the Supplier) for any period during which:
i. The Supplier is required to do so in order to avoid a breach of the Communications Act 2003 or the Supplier’s authorisation under it;
ii. The Supplier is obliged or requested to comply with an order or instruction of, or a recommendation or request to take such action received from the Government, Ofcom, an emergency services organisation or a competent administrative authority;
iii.The Supplier reasonably suspects or believes that the Customer is in breach of Clauses 4.1 or 5;
iv. The Customer’s credit rating decreases at any time, and the Customer fails to supply security reasonably acceptable to the Supplier in response to a request from the Supplier; or
v. The Supplier’s contract with BT relating to the Services is suspended, varied or terminated.
The Supplier shall try to notify the Customer as soon as reasonably practicable of such suspension or variation.
6.2 The Customer acknowledges that BT may take action or fail to take action which may result in disruption in the Service.
6.3 The Customer shall reimburse the Supplier for all reasonable costs and expenses incurred as a result of the suspension and any re-commencement or variation of the Service where suspension or variation is implemented as a result of any act or omission of the Customer.
6.4 The Supplier may at any time suspend the Service or any part of it:
i. To vary the technical specification of the Service in order to comply with any relevant law or regulation or direction from a competent authority; or
ii. To repair, maintain or improve the Service.
The Supplier will, during such suspension under this Clause 6.4, try to ensure that minimum disruption is caused to the Service.
6.4.1 The Supplier may at any time take reasonable steps to gather evidence if it suspects that the Customer is in breach of Clause 4.1
6.5 The Supplier reserves the right to vary the terms and conditions of this Agreement by placing the revised terms and conditions on its website www.cbsys.net under “Product” for the relevant Service. Any variation to these terms and conditions will be placed on the website (or otherwise notified to the Customer) not less than one (1) month before such variation is to take effect, except in the case of a Third Party Variation which means a variation which the Supplier considers is required as a result of a change in (a) the law or a decision of Ofcom or other relevant authority or (b) any service of any other operator on which the Supplier relies to provide the Service. A Third Party Variation shall take effect as soon as the law or underlying service changes. The Supplier shall place the change on the website as soon as reasonably practicable. If the variation (other than a Third Party Variation) materially prejudices the Customer, the Customer may before the variation takes effect give written notice to the Supplier objecting to the variation, in which case the variation shall not apply to the Customer, (unless otherwise agreed with the Customer, such agreement not to be unreasonably withheld or delayed). If the Supplier does not receive notice of the Customer’s objection to a material variation prior to the variation taking effect, the Customer will be deemed to have accepted it. The Customer should periodically check the Supplier’s website www.cbsys.net to make itself aware of any variations.
7.1 Either party may immediately terminate this Agreement by written notice if the other party commits a material breach that is not capable of being remedied.
7.2 Either party may serve written notice requiring the other party to remedy within two (2) Working Days in the case of an overdue payment and thirty (30) days in any other case, of receipt or deemed receipt of the notice a material breach of this Agreement that is capable of remedy. In the absence of a remedy in this period, the party that served notice to remedy may immediately terminate this Agreement, confirmed written notice.
7.3 Either party may immediately terminate this Agreement, confirmed by written notice, if the other party commits an act of bankruptcy or goes into or is put into liquidation (other than solely for the purposes of a reconstruction or amalgamation) or if a receiver, administrative receiver or administrator is appointed over all or part of the other party’s assets or the other party suffers seizure of any of its property for non payment of monies owing.
7.4 If this Agreement is signed before the Supplier has completed its credit check of the Customer, the Supplier shall be permitted to suspend and/or terminate this Agreement immediately if the Customer fails to pass the Supplier’s credit policy. The Supplier will notify the Customer.
7.5 The Supplier shall be permitted to terminate this Agreement immediately by written notice at any time for the reasons set out in Clauses 6.1.i and 6.1.ii
7.6 The rights to terminate this Agreement given by this Clause 7 shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
7.7 Following termination of the Service, service may be disconnected unless the Customer makes alternative arrangements with the Supplier or another Communications service provider.
- Limitations and Exclusions of Liability
8.1 The Supplier’s duty in performing any obligations under this Agreement is only to exercise reasonable care and skill of a reasonably competent communications provider. This Clause 8 sets out each party’s entire liability (including any liability for acts or omissions of its employees, agents or subcontractors) to the other party in tort (including negligence), contract or otherwise arising in connection with the performance, non-performance or contemplated performance of this Agreement, other than the payment of the Charges. Except as set out in this Agreement, the Supplier provides no warranties, conditions or guarantees as to the description or quality of the Service, and all warranties, conditions or guarantees 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.
8.2 Subject to Clause 8.4:
i. and subject also to Clause 8.2.ii, the Supplier’s entire liability for non-fraudulent representation, or implied warranty, condition or other term, or under any duty at common law, or in tort (including negligence) or under the express terms of this Agreement shall not in the aggregate, in any period of twelve (12) months, exceed the greater of (a) the Charges paid in respect of that twelve (12) month period and (b) £25,000. If for any reason this limit of liability shall be found to be unlawful or invalid by a court of competent jurisdiction, the Supplier’s entire liability as referred to in this clause shall not exceed £1,000,000 during the term of this Agreement.
ii. in respect of loss or damage to physical property of the Customer, the Supplier actually receives (after taking into account of any deductible or excess) insurance monies from its insurers in excess of the limit referred to in Clause 8.2.i in respect of such loss or damage, the Supplier’s liability to the Customer for such loss or damage shall not exceed such receipts.
8.3 Except in respect of the payment of the Charges and any liability under Clause 8.4, neither party shall be liable to the other party under the express terms of this Agreement or by reason of any non-fraudulent representation or implied warranty, condition or other term, or any duty at common law, or any tort (including negligence), whatsoever and howsoever caused, for any:
(a) loss or reduction of profits
(b) loss or reduction of revenue or income
(c) increased costs of operation
(d) loss of or damage to business
(e) loss of or damage to goodwill or reputation
(f) loss or reduction of anticipated savings
(g) loss or corruption of, or damage to, data
(h) loss or reduction of use
(i) damages payable or other payments to any third party, or
(j) indirect or consequential or special loss or damage.
8.4 Neither party excludes or restricts its liability for death or personal injury resulting from its own negligence or for fraudulent misrepresentation.
8.5 Each of the Supplier and the Customer acknowledges that it considers the provisions of this Clause 8 to be reasonable, taking account of the other terms of this Agreement (including the Charges, which have been based upon the allocation of risk in this Agreement) and its ability to insure against losses which may arise from any breach by the other Party of its obligations under this Agreement.
8.6 The provisions of this Clause 8 shall survive termination or expiry of the Agreement.
9 Circumstances beyond Reasonable Control
9.1 Neither Party shall be liable for any delay in performing its obligations under this Agreement caused by circumstances beyond its reasonable control. These are circumstances such as, but not limited to, Acts of God, insurrection or civil disorder or military operations, national or local emergency, acts or omissions of government or other competent authority or regulatory authority, acts or omissions of suppliers or other communications network operators, fire, flood, lightning or other weather of exceptional severity, radio interference, line-of-sight interference, subsidence, explosion or industrial disputes. This Clause does not apply to the Customer’s obligation to pay.
9.2 If either party is affected by circumstances beyond its reasonable control, it shall notify the other party and shall use reasonable endeavours to overcome the effects. If those effects continue for more than three (3) months, the parties shall enter into a discussion to agree, in good faith, the best way forward.
10.1 Notices must be written and delivered by (a) hand, (b) facsimile or electronic mail (confirmed by first class pre-paid post in respect of posting and delivery within the UK or airmail otherwise) or (c) first class prepaid post in respect of posting and delivery within the UK or airmail otherwise. The address for service on the Supplier (subject to any change notified by the Supplier) is: Computerised Business Systems Limited, 554-556 Barton Road, Stretford, Manchester M32 9TD.
10.2 The address for service on the Customer is as set out in the most recent invoice.
10.3 A notice will be deemed served as follows:
i. By hand, on delivery except where this is outside a Working Day, in which case the next Working Day;
ii. By fax (written record of successful dispatch) on delivery except where this is outside a Working Day, in which case the next Working Day;
iii. By electronic mail on delivery except where this is outside a Working Day, in which case the next Working Day, provided that either a telephone call is made to and received by the recipient informing the recipient of the date and time of that electronic mail message or the recipient expressly or impliedly acknowledges receipt of the electronic mail message;
iv. Two Working Days after posting, if posted in and for delivery in the UK; or five Working Days if otherwise.
11.1 A delay in enforcing rights under this Agreement shall not be a waiver unless expressly granted in writing.
11.2 The unenforceability or invalidity of any part of this Agreement shall not affect the enforceability or validity of the remainder of it.
11.3 The termination or expiry of this Agreement shall be without prejudice to the rights of either party, which have accrued prior to termination or expiry. Clauses that are expressed to survivor which are by implication intended to survive termination or expiry of this Agreement shall so survive.
11.4 Where an Order is signed (or, in the case of Orders taken over the telephone, a contemporaneous recording of the telephone Order is made by the Supplier) this Agreement contains the entire agreement and supersedes all other agreements and understandings between the parties with respect to its subject matter. Any terms proposed by the Customer that are not expressly accepted in the Order shall be invalid. Subject to Clause 8.4, each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly written in this Agreement, and that its only remedy can be for breach of contract. Nothing in this Clause shall operate to limit or exclude any liability for fraud.
11.5 This Agreement is not intended to be for the benefit of and shall not be exercisable by, any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself trustee of the rights under it for the benefit of any third party.
11.6 The Supplier may transfer or assign its rights and obligations to any of its Associated Companies or to any purchaser of the whole or a substantial part of the Supplier’s retail business and may sub-contract any of its obligations. Otherwise, neither party may transfer, assign, sub-licence or subcontract any rights, licences or obligations under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed.
11.7 English law shall govern the validity, construction and performance of this Agreement and the parties submit to the exclusive jurisdiction of the English Courts.