Terms and conditions for VoIP services
Please read these terms and conditions carefully. If you’re unsure of your rights or responsibilities under them, or you would like anything explained please call us today on 0800 505 3210. We’re here Monday to Friday 8.30am to 5pm, excluding Bank Holidays.
SERVICES AGREEMENT
MAIN BODY TERMS
This agreement is made between 4tel Communications Limited trading as 4tel (‘4tel’) and the Customer whose details are set out on the Order and is subject to these terms and conditions.
The Customer confirms that they understand and are responsible for ensuring the User understands that:
a. whilst VoIP services allow calls to the emergency services numbers 999 and 112, the ability to make calls to the emergency services using VoIP cannot be guaranteed.
b. calls will fail if there is a power cut or the internet connection either fails or suffers degradation in quality, and that in case of emergency they will need to dial 999 or 112 from a traditional landline or mobile.
c. for these purposes the Customer should maintain a separate traditional landline.
d. VoIP services provide a “Mean Opinion Score” comparable to mobile services. In other words the quality of sound experienced using VoIP services is comparable to the quality experienced when using mobile services. This means it is typically less than the quality experienced on a traditional landline.
1. Interpretation
1.1 In this Agreement unless the context otherwise requires:
Agreement means this contract including any attached schedules and any variation made to it in accordance with Clause 19;
Commitment Date means any date specified overleaf or on any attached sheets for any particular Service before which the Customer may not cancel the supply of that Service;
4tel means 4tel Communications Limited trading as 4tel together with any subcontractors which 4tel Communications Limited may employ;
Service(s) means the telecommunications services detailed in Clause 23 or any subset thereof.
Words in the singular include the plural and vice versa.
2. Provision of Services
2.1 All Orders accepted at our discretion. 4tel reserves the right to refuse an application for Service at any time.
2.2 Subject to acceptance 4tel shall provide the Services on the terms and conditions of this Agreement.
2.3 4tel shall exercise reasonable care and skill of a competent telecommunication service provider in the performance of its obligations under this Agreement.
2.4 For operational reasons 4tel may vary the functions of the Services time and will use all reasonable efforts to notify the Customer of any necessary change in the Services.
2.5 It is technically impracticable to provide the Services free of faults and 4tel does not undertake to do so. 4tel will however use reasonable endeavours to remedy any failure of the Services as soon as reasonably practicable.
3. Ordering
3.1 The Customer may order new Services or expansion of existing Services from time to time. Any such order will only be deemed to have been accepted by 4tel and be incorporated into this Agreement when 4tel notifies the customer in writing of such order being accepted.
4. Suspension
4.1 4tel may at any time:
(a) temporarily suspend the Services due to a material breach or persistent breaches of this Agreement (including a failure to pay any sums due in accordance with Clause 10). In addition if you go over your credit limit, we may demand that you pay your outstanding balance immediately, or we may suspend the service. If we suspend your service, you’ll still be responsible for all charges you run up, including those over your credit limit.
(b) temporarily suspend the Services for repair, maintenance or improvement of any of its systems wherever located;
(c) give instructions about the use of the Services which it considers reasonably necessary in the interests of safety, or of the quality of Services to its other customers; BUT before doing any of these things 4tel will give as much written or oral notice as is reasonably practicable in the circumstances and will restore the Services as soon as reasonably practicable after such temporary suspension.
5. Equipment
5.1 In the event that 4tel wish to install equipment to facilitate provision of the Services the Customer shall, at its own expense, in advance of installation:
(a) obtain all necessary consents including landlord and other buildings consents;
(b) provide a suitable environment including all necessary trunking, conduits and cable ducts;
(c) provide any necessary electricity supply;
(d) carry out all necessary preparatory work including the removal of all floor coverings and make good any such work.
5.2 Any equipment sited at the Customers premises for the provision of the Services shall remain the property of 4tel at all times. The Customer shall be liable for any damage to such equipment howsoever incurred other than normal wear and tear.
6. Access
6.1 The Customer must allow anyone accredited by 4tel, on production of official evidence of identity and authority, reasonable access to its premises at reasonable times for the purposes of this Agreement and, where necessary, the Customer must obtain the permission of any other person if such permission is required. 4tel will try to comply with the Customers reasonable requirements as to the safety of people on the Customers premises.
7. Forecasting
7.1 4tel may require the Customer to provide forecasts of traffic and/or the use of the Services in any format it may reasonably require and not more than once each month. The Customer will make such forecasts available to 4tel within 14 days of 4tel’s request.
8. Obligations of 4tel
8.1 4tel will use reasonable endeavours to supply the Services to the Customer by any date agreed in writing.
8.2 In the event of a fault arising with the Services then 4tel will follow the procedures set out in Clause 24 in relation to fault handling
9. Charges
9.1 The Customer shall be billed monthly in advance for any recurring charges for the Services whereas charges for calls will be billed monthly in arrears. Any one-off charges or connection charges shall be billed on the appropriate Service first being made available to the Customer.
9.2 In the absence of any obvious error, the records of calls collected by 4tel will be deemed to be conclusive.
9.3 The Customer is responsible for all charges for the Services supplied to it under this Agreement, whether used by employees of the Customer or any other person with or without the Customer’s permission.
9.4 Any fraud or other improper use of the Services committed by the Customer, its employee(s) or any other party with or without the Customers permission shall not relieve the Customer of its payment obligations to 4tel under the Agreement.
9.5 Unless otherwise stated on the Order charges will be calculated by reference to the rates for those Services shown in the 4tel Standard Price List. 4tel reserves the right to update its standard price list for the Services from time to time, a copy of which will be supplied to the Customer on request.
10. Payment
10.1 The Customer must pay the charges (without deductions) for the Services within 14 days of the date of any bill issued by 4tel.
10.2 Unless otherwise stated all rates and prices are exclusive of value added tax which, where applicable, will be added to the Customers bill at the prevailing rate.
10.3 4tel reserves the right to charge the Customer interest at the rate of 2% over the base rate of Barclays Bank PLC from time to time for bills which are not paid by the due date as stated in clause 10.1.
10.4 4tel may from time to time limit the amount of credit which it advances the Customer and 4tel may require the Customer to pay a deposit, make payments on account or provide some other form of guarantee (all of which to be determined by 4tel at its absolute discretion) as security for future charges.
11. Misuse of the Services
11.1 The Customer must not use or permit anyone else to use the Services:
(a) to send a message or communication which is offensive, abusive, indecent, defamatory, obscene or menacing;
(b) for any fraudulent, illegal or immoral purposes;
(c) other than in accordance with instructions issued by 4tel under paragraph 4(b);
(d) to cause annoyance, inconvenience or needless anxiety. If 4tel suspends the Services for contravention of this Clause 11 it can refuse to restore it until it receives an acceptable assurance from the Customer that there will be no further contravention.
12. Indemnity
12.1 The Customer indemnifies 4tel against any claims or legal proceedings (including damages, costs and expenses) arising solely from the Customers use of the Services which are brought or threatened against 4tel by any third party.
13. Security
13.1 In order to access the Services, 4tel may provide the Customer with a set of passwords. The Customer is responsible for the security and proper use of all passwords relating to the Services and must keep them confidential and must not disclose them to any third party.
13.2 The Customer must inform 4tel immediately if it suspects that any password in relation to the Services has become known to someone who is not authorized to use it.
13.3 If 4tel suspects that there is likely to be a breach of security or a misuse of the Services it may change the Customers password and notify the Customer accordingly.
14. Intellectual Property Rights
14.1 Where software is supplied to enable the Customer to use the Services 4tel grants the Customer a non-exclusive, non-transferable licence to use the software for that purpose only.
14.2 The Customer shall not copy, modify, reverse engineer, decompile or otherwise endeavour to obtain the source code of the software except to the extent permitted by law.
14.3 All intellectual property rights in the software shall remain the property of 4tel or its licensors.
14.4 The Customer shall sign any agreement required by the owner of the intellectual property rights in the software to protect such rights.
15. Confidentiality
15.1 The parties will keep in confidence any information of a confidential nature obtained under this Agreement (whether written or oral), including but not limited to the prices payable by the Customer for the Services, and will not disclose such confidential information to any person (other than their employees who need to know the information for the purpose of this Agreement and who are under a duty of confidentiality equivalent to this Clause 15) without the prior written consent of the other party.
15.2 This Clause 15 will not apply to:
(a) any information which has been published other than through a breach of this Agreement;
(b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
(c) information obtained through a third party who is free to disclose it; and
(d) information which a party is required by law to disclose.
16. Limitation of Liability
16.1 4tel does not exclude or limit its liability for personal injury or death caused by its negligence and paragraphs 16.2, 16.3 and 16.4 do not apply to such liability .
16.2 4tel will only be liable to the Customer for claims made by it in writing within six months of the date on which it becomes aware or ought reasonably to have become aware of the grounds of such a claim.
16.3 Subject to Clause 16.2 above, 4tel’s aggregate liability to the Customer in connection with this Agreement whether in contract, tort (including negligence) or otherwise shall be limited to £10,000 in respect of any single occurrence or series of occurrences whether successive or concurrent in any 12 month period.
16.4 Subject to Clause 16.2 above, 4tel shall not be liable to the Customer in connection with this Agreement whether in contract, tort (including negligence) or otherwise for direct or indirect loss of profit, business, anticipated savings or wasted expenditure or for any indirect or consequential loss, corruption or destruction of data whether or not 4tel was advised or aware of the possibility of such damages, losses or expenses.
16.5 Each provision of this Clause 16 operates separately and if any part is held by a court to be unreasonable or inapplicable the other parts shall remain in force.
17. Matters Beyond Either Parties Reasonable Control
17.1 Neither party is liable for any breach of this Agreement (other than the obligation to make payments due under it) to the extent that the breach was caused by a matter beyond its reasonable control including insurrection or civil disorder, war or military operation, national or local emergency, acts or omissions of government, highway authority or other competent authority, 4tel’s compliance with any statutory obligation or any obligation under a statute, industrial disputes of any kind (whether or not involving 4tel employees), fire, lightning, explosion, flood, subsidence, weather of exceptional severity, or acts or omissions of persons for whom it is not responsible (including in particular other telecommunications services providers).
18. Termination
18.1 Either party may terminate this Agreement with immediate effect on written notice to the other if the other:
(a) commits a material breach or persistent breaches of this Agreement (including a failure to pay any sums due under this Agreement) and, where such breach is capable of being remedied, has failed to do so within 14 days of written notice to do so;
(b) is subject to bankruptcy or insolvency proceedings or , in Scotland, sequestration proceedings, becomes insolvent, makes any composition or arrangement with or assignment for the benefit of its creditors, or goes into either voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets.
18.2 4tel may (without losing or reducing any other right or remedy) suspend the Services (in whole or in part) temporarily without notice if:
(a) within 14 days of a written demand being sent, the Customer fails to pay any charges due to 4tel under this Agreement or any other agreement you have entered into with 4tel; or
(b) the Services are used in breach of Clause 11.
18.3 4tel may terminate this Agreement with immediate effect on written notice in order to comply with a decision or action of a competent regulatory authority.
18.4 This Agreement shall have an initial Term of Twelve (12) months (or such other period as is set out on the Order) from the date that the Service is first delivered to the Customer.
The Customer may terminate this Agreement with immediate effect at any time by giving 30 days written notice to 4tel. 4tel may terminate this Agreement with immediate effect on giving no less than 30 days written notice to the Customer to expire on or after 12 months.
Until termination for whatever reason, the Supplier agrees to provide the Service to the Customer in accordance with this Agreement in consideration of the agreement of the Customer to use the Service in accordance with this Agreement and to pay the Charges when they are due.
18.5 Any particular Service or part thereof which carries recurring charges or has minimum call volumes associated with it must be purchased by the Customer at least until the Commitment Date for that particular Service or part thereof.
18.6 On termination all charges incurred up to the date of termination shall become immediately due and payable.
18.7 On termination of this Agreement (for whatever reason) Clauses 1, 9.3, 12, 15, 16, 17, 18 and 20 shall remain in force.
18.8 The waiver or failure by 4tel to exercise in any respect any right or remedy provided under this Agreement shall not be deemed to be a waiver of any further right or remedy under this Agreement.
19. Changes to this Agreement
19.1 This Agreement, other than the charges payable under it, may only be modified by a document in writing which refers explicitly to this Clause 19 and is signed by both the Customer and 4tel.
20. Entire Agreement
20.1 This Agreement comprising these terms and conditions, the information set out overleaf and any attached sheets sets out the entire agreement and understanding between the parties and supersedes all prior agreements, understandings or arrangements in respect of the subject matter of this Agreement. The parties acknowledge and agree that:
(a) they have not been induced to enter into this Agreement by any representations, warranty or other assurance not expressly incorporated in it;
(b) their sole remedies in connection with this Agreement are those for breach of contract and all other remedies are excluded; and
(c) this Clause 20 does not apply in relation to fraudulent representations.
21. Notices
21.1 A notice given under this Agreement must be in writing and may be delivered by hand or sent by facsimile or post to the addressee at the following addresses:
(a) To 4tel Communications Limited, Waterside Court, Falmouth Road, Penryn, TR10 8AW
(b) To the Customer at the address of your registered office or such other address as you advise to us in writing from time to time.
22. Assignment
22.1 The Customer must not assign or otherwise transfer any of its rights or obligations under this Agreement.
23. Fault Handling
23.1 In the event of a fault affecting service 4tel will respond within 24 hours of the Customer reporting such fault to the Faults Department on 0333 320 7022.
If the fault is not cleared within the response time, a full progress report will be given by telephone.
SCHEDULE OF SPECIAL TERMS FOR HOSTED VOICE EXCHANGE / HVX / HOSTED PBX SERVICE
1. In this Agreement the following expressions shall have the following meanings unless the context otherwise requires:
“Additional Charges” means Charges which may be made (in addition to the Annual Support Charge) for additional services supplied pursuant to condition 9.3.3;
“Annual Support Charge” means the support charge for the Maintenance Services as set out on the Order Form;
“Delivery” means the point that the Equipment arrives at the Customer’s or Customer’s Sites before (where applicable) the unloading of Equipment from the delivery vehicle and `Delivered’ shall be construed accordingly;
“Emergency Call” means a Call to 999 or 112 and any other number associated with UK emergency services;
“Equipment” means the equipment and/or software related products to be supplied under the Agreement;
“Installation” means the physical installation of Equipment at the Customer’s or Customer’s Sites;
“Installation Services” means services relating to the supply and Installation of Equipment (where applicable);
“Order Form” means the order form to which is subject to these Conditions which sets out the details of the order, including (without limitation) the Customer’s and the end user details and the Equipment and/or Services to be supplied under the Contract and the related charges, and constitutes the Customer’s order;
“Site” means a place of business at which the Services and/or Equipment are to be provided as specified in the Order Form;
2. Customer’s Order and Specifications
2.1 The Customer shall be responsible for providing 4tel with all information relevant to the supply of the Equipment and the provision of Services (as the case may be) within sufficient time to enable 4tel to duly perform the Contract.
2.2 The Customer shall be responsible for ensuring that the details set out on the Order Form and any drawings, sketches, specifications, descriptions or other instructions supplied by the Customer or any agent or representative of the Customer in connection with the supply of any Equipment or the supply of any Services (as the case may be) by 4tel are accurate and fully describe the Customer’s requirements and the Customer shall be liable in respect of any liability, loss, injury, damage, demand, claim, cost charge or expense which may be incurred or sustained by 4tel by reason of or arising directly or indirectly out of or in respect of any inaccuracy in respect of any such drawings, sketches, specifications, descriptions or other instructions in relation thereto, or where the compliance with any such any drawings, sketches, specifications, descriptions or other instructions by 4tel constitutes the infringement of the intellectual property or other rights of another person.
3. Duration of services
3.1 The Service initial Term or Minimum Period for the Hosted Voice Exchange service is normally 12 months unless stated otherwise on the Order Form. However for Hosted Voice Exchange Customers individual licences are NOT subject to a Service Minimum Period and are charged for the period they are active.
4. Charges
4.1 The Charges are specified on the Order Form.
5. Delivery
5.1 Any Contract including the provision of Equipment and/or Installation Services based on an order which is accepted by 4tel pursuant to Clause 5.1 is, until the delivery of the applicable Equipment, conditional upon the availability of the relevant Equipment and the Company providing confirmation by email to the Customer that the terms stated on the Order Form of the applicable Contract for Equipment and/or Installation Services do not contain any errors or omissions
5.2 4tel shall subject to Clause 7 supply the Equipment, and shall take reasonable steps to deliver the Equipment and where applicable supply the Installation Services within an estimated period for delivery, such period shall (unless otherwise specified) commence from the date of receipt by 4tel of all instructions and information for the execution of the Contract, but such time is not guaranteed nor deemed to be of the essence of the Contract.
5.3 The Customer shall be responsible for providing 4tel with any necessary instructions for delivery of the Equipment within a reasonable period prior to the estimated delivery date advised by 4tel to the Customer.
5.4 If the Customer fails to take delivery of the Equipment or if by reason of instructions or lack of instructions from the Customer the delivery of any Equipment in accordance with the Contract is delayed for more than twenty-eight days after 4tel has given notice in writing to the Customer that the Equipment is ready for delivery the Equipment shall be deemed to have been Delivered in accordance with the Contract and thereafter the Equipment shall be deemed to be at the risk of the Customer. The Customer shall pay to 4tel the reasonable costs of storing, protecting and preserving such Equipment after the expiry of such period of twenty-eight days.
5.5 If the Contract provides for Delivery by instalments, any delay in the Delivery of any instalment shall not entitle the Customer to treat the Contract as at an end or to reject any other instalment.
5.6 If by reason of refusal or delay of delivery or installation the Equipment shall be deemed to have been Delivered in accordance with Clause 5.3 then payment shall be made by the Customer to 4tel of the balance of the Price within seven days of such deemed delivery date.
6. Connection
6.1 The responsibility for the cost of connection to the public switch network and/or the provision of additional lines to the public telephone system lies with the Customer.
6.2 The Customer shall ensure that a suitable earthed mains electricity supply of 240 volts ac to the Institution of Engineering and Technology’s IEE Wiring Regulations in force at the date of Delivery is available for each piece of Equipment within 3 metres of such pieces of Equipment.
6.3 The Customer shall prepare the Site(s) in accordance with 4tel’s instructions so that any necessary Equipment can be installed. The Customer will meet the costs of preparing the Site(s).
7. Property and risk
7.1 The Equipment shall be at the Customer’s risk from the moment of Delivery or deemed Delivery (as described in Clause 5.3) whether or not property in the Equipment has passed or payment or part payment made therefore, and thereafter the Customer shall be responsible for insuring the Equipment.
7.2 Notwithstanding Delivery and the passing of risk, the property and the legal and beneficial title in the Equipment supplied under the Contract shall not pass to the Customer until 4tel has received in cash or cleared funds payment in full of all sums due for the Equipment and Installation Services (where applicable) and all other equipment and/or services agreed to be sold by 4tel to the Customer for which payment is then due.
7.3 Until such time as the property in the Equipment has passed to the Customer, the Customer shall hold such Equipment as 4tel’s fiduciary agent and bailee, and keep such Equipment properly stored, protected and insured and identified as being 4tel’s property until title passes.
7.4 Until such time as the property in the Equipment passes to the Customer 4tel shall be entitled at any time to require the Customer (at the Customer’s cost) to deliver up the Equipment to 4tel at its nominated location and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Equipment is stored and remove and repossess such Equipment.
7.5 The Customer shall not, without the written consent of 4tel, be entitled to pledge or in any way charge by way of security for any indebtedness, or alter or modify, any Equipment which remains the property of 4tel, but if the Customer does so all monies owing by the Customer to 4tel shall (without prejudice to any right or remedy of 4tel) forthwith become due and payable. The Customer shall ensure that any Equipment provided by 4tel which remains the property of 4tel shall remain identifiable and shall be kept free from any loss, damage, and/or deterioration and insured against all risks for its full reinstatement value.
8. Liability for replacement or repair
8.1 Subject to the following sub-Clauses of this Clause 8, 4tel shall, for a period of twelve months from the date of Delivery or Installation (where applicable) whichever is the later event, at its option and without cost to the Customer either repair or replace any defective Equipment to make good any defect which shall be proved to the satisfaction of 4tel to be the result of faulty design, materials or manufacture or Installation (only where 4tel supplies Installation Services under the Contract) provided that 4tel shall have no liability for any such defects unless the Customer notifies 4tel, within three Business Days from Delivery or Installation (where applicable) whichever is the later event, of any defect arising prior to and/or on Delivery or Installation (as the case may be) and (subject to Clause 8.2) within twenty four hours of any latent defect arising within such twelve month period.
8.2 Where the Customer enters into an agreement for maintenance of the Equipment with a third party, the Company’s liability for repair, replacement, and renewal under the Contract shall be transferred to the relevant third party maintenance provider on Delivery, subject only to 4tel’s relevant liability in respect of defects arising on or before Delivery of the Equipment provided that the Customer notifies 4tel within three Business Days of Delivery in accordance with Clause 8.1.
8.3 The liability of 4tel shall apply only to defects that appear under proper use and under conditions of operation not more onerous than those declared to 4tel by the Customer prior to entering into the Contract, and in particular shall not apply to defects which arise from the neglect, misuse, or faulty maintenance of the Customer or any of its other contractors, or from alterations carried out without the prior written consent of 4tel or from repairs carried out improperly by the Customer or its servants or agents or arising from normal wear and tear.
8.4 Any repaired or new parts provided by 4tel under this Clause 8 will be delivered by 4tel to the Customer or Customer free of charge. Any Equipment (or part) which has been returned to 4tel and replaced by 4tel shall become the property of 4tel.
8.5 4tel reserves the right to charge on a quantum meruit (amount deemed reasonable for labour and / or materials) basis for the costs of repairs and/ or call-outs where the damage has resulted from misuse or unauthorised repair or alteration of the Equipment by the Customer, or from normal wear and tear.
8.6 Neither acknowledgement of receipt nor investigation by 4tel of any claim hereunder or consent given hereunder shall constitute or imply admission by 4tel of any liability in respect of such claim.
8.7 Save where the Customer has purchased Maintenance Services in respect of the relevant Equipment (in which case Clause 2 shall apply) the Customer acknowledges and agrees that, subject to clause 7.4 of the Agreement, the rights and remedies provided to the Customer (in connection with any defect in the Equipment resulting from faulty design, materials or manufacture or installation) under this Clause 6 shall be the Customer’s sole and exclusive remedies in respect of any defect in the Equipment resulting from faulty design, materials or manufacture or installation.
9. Maintenance Services
In the event that the section relating to Maintenance Services is completed on the relevant Order Form, this Clause 9 shall apply to the Contract.
9.1 Duration Of Maintenance Services
9.1.1 Any Contract including the provision of Maintenance Services based on an order which is accepted by 4tel until the Commencement Date, conditional on 4tel providing confirmation by email to the Customer that the terms stated on the Order Form of the applicable Contract for Maintenance Services do not contain any errors or omissions. Subject to this Clause 9.1.1 and in consideration of (and subject to) the payment of the Annual Support Charge each year by the Customer, 4tel shall supply to the Customer the Maintenance Services in accordance with the Contract.
9.1.2 Subject to earlier termination in accordance with its terms, the Contract for Maintenance Services shall run for the Minimum Term. Upon the expiry of the Minimum Term, or any anniversary thereafter, the Contract in relation to the Maintenance Services will renew automatically for further periods of twelve months.
9.1.3 The Customer may terminate the Contract in relation to the Maintenance Services by giving ninety days’ notice in writing to 4tel, such notice to become effective no earlier than the day after the last day of the Minimum Term or upon each anniversary of such date thereafter (as applicable).
9.2 Provision of Maintenance Services
9.2.1 The Maintenance Services shall apply only in respect of Equipment as set out in the Order Form and any other equipment which it is agreed between the parties in writing shall be included under the Contract for Maintenance Services, which for the purposes of this Clause 9 shall be deemed Equipment.
9.2.2 Unless it is otherwise stated on the Order Form that a different level of Service (in terms of response times and hours of attendance) will apply, 4tel will use its reasonable endeavours to, within two Business Days of receipt of notification from the Customer of a request for the provision of Maintenance Services and the Equipment being made available, commence during Normal Working Hours all adjustments, repairs and replacements of defective components resulting from fair wear and tear and/or faulty workmanship of 4tel and/or materials which in the opinion of 4tel are necessary for the proper functioning of the Equipment. Any time period stated in respect of 4tel’s obligations under a Contract is not guaranteed nor deemed to be of the essence of the Contract.
9.2.3 Where 4tel replaces defective Equipment or part thereof, it shall be entitled to supply serviceable reconditioned items in substitution thereof. These Clauses shall continue to apply to the Equipment embodying such substituted items.
9.2.4 4tel does not warrant that the provision of Maintenance Services (or any additional services supplied pursuant to Clauses 9.3.1 and 9.3.2) will ensure that the Equipment operates without interruption or error.
9.2.5 Subject to spare part availability, 4tel shall provide all necessary spare parts (in the reasonable opinion of 4tel) required to keep the Equipment in satisfactory operation. All replaced parts shall become the property of 4tel.
9.2.6 Subject to Clause 9.3.1, Maintenance Services shall not include the following (the “Excepted Services”):
(a) the repair of damage to the Equipment resulting from accident, neglect or causes other than ordinary use (including, but not limited to, failure to observe any instructions supplied by 4tel regarding the operation of the Equipment);
(b) repair, labour or materials required as a result of theft, vandalism, fire, lightning, water damage, fluctuations in electrical power supply, unsatisfactory environmental conditions, telephone line conditions, the connection of unapproved accessories, attachments or other devices or as a result of breach by the Customer of any of the terms of Clause 9.5;
(c) the alteration, modification or maintenance of the Equipment by any person other than 4tel without 4tel’s prior written consent;
(d) the transportation or relocation of the Equipment save where the same has been performed at the request of 4tel;
(e) the maintenance or repair of any extension wiring (after the initial twelve month warranty period under Clause 8.1. has passed), any Equipment not at the Site, or of anything other than the Equipment;
(f) any defect or error in any software used upon or in association with the Equipment;
(g) the supply of replacement cassettes, aerials, aerial systems and batteries;
(h) the reprogramming of the Equipment to provide improved or modified service or facilities;
(i) Equipment faults caused by telephone area code changes or changes in Carriers;
(j) ancillary items including but not limited to answer-phones, analogue and digital phones or devices, call loggers, payphones, computers, servers, uninterruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, any cabling and/or consumables unless otherwise agreed in writing;
(k) maintenance arising from loss of equipment as the Maintenance Services are limited to repair or replacement of faulty equipment on a like-for-like exchange basis; and/or
(l) a dedicated helpdesk.
9.3 Additional Charges
9.3.1 4tel may, in its discretion, upon request by the Customer provide all or any of the Excepted Services (as referred to in Clause 9.2.6 above) but shall be entitled to charge for the same by levying Additional Charges in the manner described in Clause 9.3.3 below.
9.3.2 Without prejudice to Clause 9.3.1 above 4tel shall be entitled to levy (and receive from the Customer) Additional Charges in the manner described in Clause 9.3.3 below if:
(a) Maintenance Services are provided in circumstances where any reasonably skilled and competent person would have judged the Customer’s request to have been unnecessary; and/or
(b) the Customer reports an apparent fault of the Equipment to 4tel and upon investigation by 4tel the Equipment and/or its Installation is found not to be defective (in respect of a charge for the investigation and/or for any call-out including, without limitation, Equipment changed in a postal exchange where 4tel reserves the right to make a charge up to the replacement value of the item in question); and/or
(c) where a fault that has been reported to 4tel has been a non-Equipment fault but instead one of the Carrier (in respect of a charge for the call-out in accordance with 4tel’s then current Tariff).
9.3.3 Additional Charges shall be levied by 4tel as follows:
(a) following completion of the work in respect of additional services supplied under Clause 9.3.1 and 9.3.2(a); and
(b) following completion of the investigation and/or call out in respect of Clause 9.3.2(b) and 9.3.2(c);and
(c) such Additional Charges (calculated in accordance with the Tariff prevailing at the time) shall be payable by the Customer within ten days of the date of an invoice.
9.3.4 In respect of a fault which is a failure by the Carrier as referred to in Clause 9.3.2(c) 4tel will provide to the Customer a Carrier fault reference number that may be used by the Customer to recharge the cost 4tel has charged on to the Carrier, however this does not constitute any acceptance of liability for such costs by 4tel and, for the avoidance of doubt, 4tel is not liable to the Customer where the Carrier refuses to cover such costs (or any of them).
9.4 Discontinued Services
9.4.1 Without prejudice to Clause 12 of the Agreement or any other right of suspension or termination of Services under these Clauses, 4tel shall have the right to discontinue the Maintenance Services in respect of specified Equipment (without further liability to the Customer) in the event that 4tel’s supplier and/or the manufacturer has ceased to supply such Equipment PROVIDED THAT 4tel shall notify the Customer as soon as reasonably practical after it is aware of any cessation in supply of the Equipment and shall arrange with the Customer to either terminate the Contract or replace or upgrade the affected Equipment at the Customer’s expense.
9.4.2 Without prejudice to Clause 12 of the Agreement or any other right to terminate any Services under these Clauses, 4tel shall have the right to terminate forthwith the supply of the Maintenance Services (without further liability to the Customer) in the event that any necessary approvals required by 4tel to maintain any of the Equipment are disallowed or revoked by any government or regulatory agencies or any third party.
9.5 The Customer undertakes that:
9.5.1 it shall ensure that the Equipment is used in a normal and proper manner;
9.5.2 It will carry out such routine day-to-day preventive maintenance measures as may be recommended in the customer operating instructions and manufacturer’s written recommendations supplied with the Equipment (“User Instructions”);
9.5.3 it will carry out minor maintenance adjustments suggested by 4tel which includes minor programming changes with telephone support and replacement of handsets and cords which are relayed by courier or post;
9.5.4 it will not permit alteration to call routing apparatus or extension wiring except by 4tel, or by 4tel’s authorised agents, save that in relation to the connection of other apparatus to the Equipment, such connection may be performed by another person at the Customer’s expense if either
(a) 4tel so agrees in writing, or
(b) 4tel fails to carry out the connection itself within twenty-eight days after receiving written notice from the Customer stating that the Customer wishes specified apparatus to be so connected and naming that other person by whom the Customer wishes the connection to be performed;
9.5.5 it will appoint at least one member of its staff as a “Principal Operator”, who will be trained in the use of the Equipment. The Customer will ensure that such Principal Operator is available to carry out the instructions in the User Instructions and to liaise on Maintenance Services matters with 4tel;
9.5.6 it will not employ or permit a third party to make any alterations to the programming or physical structure of the Equipment;
9.5.7 it will ensure that the environmental conditions for the Equipment are maintained in accordance with the User Instructions;
9.5.8 if the Equipment is not (immediately prior to the Commencement Date) either already maintained by 4tel or within the scope of an express warranty given by the supplier thereof, then 4tel may at its discretion inspect the Equipment and undertake such repair work as may be necessary to put the Equipment in good working order. The Customer shall pay for such inspection and repair at 4tel’s then current charge rates applying at that time, and such payment shall be in addition to the Annual Support Charge.
9.6 Change of Location
9.6.1 The Customer will not move any of the Equipment, nor remove the Equipment from its location as at the Commencement Date without the prior written consent of 4tel, (such consent not to be unreasonably withheld). Where 4tel consents to such relocation, 4tel shall provide a relocation and installation service, the cost of which shall be paid by the Customer in accordance with 4tel’s then current Charges applying at that time, and such payment shall be in addition to the Annual Support Charge.
10. Sites
10.1 To enable 4tel to fulfil its obligations under any Contract:
10.1.1 the Customer shall permit or procure permission for the Company and any other person(s) authorised by 4tel to have reasonable access to the Customer’s Sites, Equipment and any other relevant telephone system and other equipment and shall provide such reasonable assistance as 4tel requests.
10.1.2 4tel will normally carry out work by appointment and during Normal Working Hours but may request the Customer to (and the Customer shall) provide access at other times. In the event that the Customer cancels, reschedules or misses any pre-arranged appointment, it shall be liable to 4tel for any costs and expenses which 4tel incurs as a result of such cancellation, rescheduling and/or missed appointment.
10.2 At the Customer’s request, 4tel may agree (at its sole discretion) to work outside Normal Working Hours and the Customer shall pay 4tel’s reasonable charges for complying with such a request.
10.3 The Customer warrants, represents and undertakes that it has adequate health and safety provisions in place at its Sites.
10.4 The Customer shall procure all consents, licences and permissions necessary from landlords or other third parties for the carrying out of preparation work, installation of Equipment and for the provision, use and operation of the Equipment and/or Services at the Sites (save to the extent 4tel has agreed in writing to do it).
10.5 In the event that the Customer is not able to procure the necessary consent to provide the Services within ninety days from the Connection Date 4tel will be able to terminate the Contract forthwith by giving the Customer written notice without any liability. If the Customer has not managed to procure the necessary consents and 4tel has commenced work 4tel may ask the Customer shall, on request by 4tel, refund to 4tel the cost of all such work (including, without limitation, staff costs and equipment costs) at its then current rates.
10.6 The Customer shall provide 4tel with the site and building plans (to include full details of all internal cabling runs) of the Sites and provide 4tel with full details of all other services in the vicinity of the proposed works.
10.7 The Customer is responsible for making the Site good after any work undertaken by 4tel at a Site, including without limitation replacing and re-siting items and for re-decorating.
10.8 If the Customer is moving a Site, 4tel must be informed as soon as is reasonably practicable so that suitable arrangements can be made to transfer the Customer’s Services and Equipment. Unless otherwise requested, 4tel, in addition to moving the Service and Equipment, will also endeavour (but cannot guarantee that it will be able, for example where the Customer moves to a different exchange) to retain the Customer’s relevant existing telephone number(s). If 4tel can transfer the Customer’s existing number to the new Site the relevant existing Contract will continue under the same terms and conditions. If 4tel cannot transfer the Customer’s existing relevant number to the new Site, installation of a new line will be required at the new Site, or if the Customer requires any additional new lines, this will attract new line connection charges and a new Contract.
10.9 If the new installation or moving Site involves the visit of an engineer to facilitate the new installation, the Customer will be responsible for the costs incurred by 4tel for the appointment of the engineer together with an administration fee in respect of any additional works required to be undertaken by 4tel to complete the transfer of the Services and Equipment.
10.10 If the Customer moves Sites and leaves the Equipment for the new owner/tenant, the Customer is required to inform them that the relevant Service will be discontinued if 4tel is not contacted by the new owner/tenant within seventy two hours for the purpose of entering into a new contract with 4tel for such services and subject in any event to the agreement of such a contract.
10.11 If at the new Site the Customer receives services from an alternative supplier the Customer is responsible for any contractual agreement the Customer has with them and any liabilities the Customer may incur for terminating such agreement.
11. Voice over internet protocol (VoIP) fixed network services
11.1 Any Contract for VoIP services which results from an order accepted by 4tel is conditional on the Customer acknowledging and accepting that:
11.1.1 the VoIP service may not offer all the features or resilience the Customer may expect from a conventional phone line; and
11.1.2 the VoIP service may sometimes be limited, unavailable or disrupted due to events beyond 4tel’s control e.g. power disruptions, failures or the quality of any connection;
11.1.3 wherever possible, alternative arrangements should be made by the Customer and a primary telephone line maintained;
11.1.4 if the Customer uses the VoIP service to make Emergency Calls, the location information received by the emergency services will be limited to the installation address of the Site, which may not be the location from which the call originated;
11.1.5 Emergency Calls made using the VoIP service may fail if there is a power failure or connection failure; the ability for the Customer to make Emergency Calls cannot be guaranteed;
11.1.6 it will not be possible to make Emergency Calls if 4tel has suspended or interrupted the VoIP service for any reason;
11.1.7 the Customer shall be required to provide/confirm his location when making a VoIP originated Emergency Call to enable the correct emergency organisation to respond; and
11.1.8 a VoIP originated Emergency Call will not receive the same network priority at all points over non- emergency calls as an Emergency Call made on a mobile network or on a circuit-switched fixed line.
12. Publishing of Customer details
12.1 If applicable and unless the Customer requests that 4tel does not do it, 4tel will, as soon as is reasonably practical, publish the User’s name address and the telephone number for the Fixed Network Service in the relevant phone book serving the Customer’s area and make the said telephone number available from a directory enquiries service.
12.2 If the Customer requests a Special Entry to be placed in the relevant phone book issued by the Carrier it must inform 4tel at the earliest available opportunity. Where 4tel agrees to use its reasonable endeavours to register a Special Entry, the Customer may be required to pay an additional charge and sign a separate contract in respect of that entry.
13. Software
13.1 Where 4tel provides software to the Customer to enable the Customer to use the Services (“Software”), 4tel will grant the Customer a non-exclusive, non-transferable licence to use the Software solely for the term and purposes of the Contract (and to extent necessary to use the relevant Services). If required by 4tel, the Customer shall sign such end user licence agreement as may be reasonably required by the owner of the copyright in the Software to protect the owner’s interest in that Software and for the Customer to be able to use the Software
13.2 Except as permitted by applicable law or as expressly permitted under the Contract the Customer shall not de-compile reverse-engineer or modify the Software, or copy the relevant manuals or documentation.
