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Terms & Conditions
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Sale of Goods
The customer's attention is drawn in particular to the provisions of clause 9. 1. Interpretation 1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order (including new and refurbished goods).
Order: the Customer's order for the Goods, as set out in the invoice.
Specification: any specification for the Goods as set out in the invoice.
Supplier: Comms Group (UK) Ltd (registered in England and Wales with company number 06611435).
1.2 Construction. In these Conditions, the following rules apply: (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). (b) A reference to a party includes its personal representatives, successors or permitted assigns. (c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted. (d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. (e) A reference to writing or written includes faxes and e-mails. 2. Basis of contract 2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate. 2.3 The Order shall only be deemed to be accepted when the Supplier issues an invoice. 2.4 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 Supplier which is not set out in the Contract. 2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force. 2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue. 3. Goods 3.1 The Goods are described in the Specification. 3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements. 4. Delivery 4.1 The Supplier shall ensure that: (a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and (b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense. 4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. 4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location and signed for on behalf Customer. 4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a reason beyond the Suppliers control or any Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. 4.5 If the Customer fails to take delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract: (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and (b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance). 4.6 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods. 4.7 The Customer shall not be entitled to reject the Goods if the Supplier delivers less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered. 4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. 4.9 If the Customer wishes to return the Goods or finds any discrepancy with the Goods the Customer must return the Goods in accordance with the Suppliers Warranty and Returns Procedure, which must be requested within 2 Business Days of receipt of the Goods. Such request can be made by telephone or email to our Customer Service Department on 0844 848 8144 or email firstname.lastname@example.org. 5. Quality 5.1 The Supplier warrants that on delivery, and in accordance with the Suppliers Warranty and Returns Procedure, the Goods shall: (a) conform in all material respects with the Specification; (b) be free from material defects in design, material and workmanship; (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and (d) be fit for any purpose held out by the Supplier. 5.2 Subject to clause 5.3, if: (a) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; (b) the Supplier is given a reasonable opportunity of examining such Goods; and (c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full in accordance with the Suppliers Warranty and Returns procedure. 5.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events: (a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2; (b) the defect arises because the Customer failed to follow the Supplier's or manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; (c) the Customer alters or repairs such Goods without the written consent of the Supplier; (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (e) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements. 5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1. 5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract. 5.6 These Conditions shall apply to any repaired, refurbished or replacement Goods supplied by the Supplier. 6. Title and risk 6.1 The risk in the Goods shall pass to the Customer on completion of delivery. 6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for: (a) the Goods; and (b) any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due. 6.3 Until title to the Goods has passed to the Customer, the Customer shall: (a) hold the Goods on a fiduciary basis as the Supplier's bailee; (b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and (f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business. 6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. 7. Price and payment 7.1 The price of the Goods shall be the price set out in the invoice. 7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to: (a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or (c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions. 7.3 The price of the Goods is inclusive of the costs and charges of packaging and insurance. The cost of transportation of the Goods shall be invoiced to the Customer. 7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods (unless exempt). 7.5 The Supplier may invoice the Customer for the Goods on or at any time. 7.6 The Customer shall pay the invoice in full and in cleared funds prior to delivery or in accordance with the credit terms agreed. Time of payment is of the essence. 7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Barclay's base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. 7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer. 8. Customer's insolvency or incapacity 8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due. 8.2 For the purposes of clause 8.1, the relevant events are: (a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; (b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; (c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; (d) (being an individual) the Customer is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; (f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; (g) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets; (i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a)to clause 8.2(h) (inclusive); (j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; (k) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and (l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation. 8.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect. 9. Limitation of liability 9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (d) defective products under the Consumer Protection Act 1987; 9.2 Subject to clause 9.1: (a) the Supplier shall under no circumstances whatever 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; and (b) the Supplier'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, shall in no circumstances exceed the price of the Goods. 10. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors. 11. General 11.1 Assignment and subcontracting. (a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. (b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier. 11.2 Notices. (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail. (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission. (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. 11.3 Severance. (a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. (b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. 11.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. 11.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it. 11.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier. 11.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
This Agreement covers the provision by Comms Group (UK) Limited to you of our Services. If you have subscribed to Comms Group Broadband or Data Services, a separate agreement will be sent to cover the specific terms for Broadband and Data. “Comms Group”, “we”, “us”, or “our” means Comms Group (UK) Limited a company incorporated in England and Wales registered under Number 06611435 whose registered office is at Artisans House, 7 Queensbridge, Northampton NN4 7BF Tariff - You will be charged for line rental and calls at the rates shown on your Confirmation Letter. Payment - You shall pay our Invoices by direct debit. You will be charged an administration fee for any monthly payments tendered by other means. If you do not pay any of our invoices you will incur an administration fee that will be included on your next monthly bill. Other Charges may apply. Our Charges are specified within your Confirmation Letter. Contract length - The Minimum Term, is specified on the Agreement that you signed. This Agreement begins on the Effective Date and will continue in force until terminated by either of us in accordance with the Agreement. Cancellation Fee - If you terminate the Agreement (or we terminate it because of your conduct) before the end of the Minimum Term, you will be charged a Cancellation Fee for each fixed line. Other Charges may apply to you. Our Charges are specified within your Confirmation Letter.
TERMS FOR SERVICES
DEFINITIONS “Agreement” means these terms and conditions together with your signed Service Order Form, Confirmation Letter and accepted by us; "Cancellation Fee” means a, a reasonable disconnection fee per each fixed line we have to disconnect or allow to transfer to another provider. Our current cancellation fees can be found within your Confirmation Letter. Please note other charges may apply – see section 5.d “Care Level” means our fault repair response times specified in Clause 11(e); “Charges or Fees” mean our charges for providing you with the Services under this Agreement specified in Clause 7 below; “Confirmation Letter” means our letter confirming acceptance of your Order which includes the Tariff, Charges and Minimum Term which will be posted or emailed to you within 10 working days of receipt of your Service Order Form; “Effective Date” means the date specified within your Welcome Letter; “Larger Business” means any business that it is not a Small Business; “Material Detriment” means variations to your Agreement which are likely to be of significant detriment to you, such as an increase in our call Charges for the Services by an amount which is more than the percentage increase in the retail prices index figure (or any future equivalent) in any twelve month period; “Minimum Term” means, where applicable, the minimum term of this Agreement agreed with you in the Order and confirmed to you in our Confirmation Letter; “Order” means any online order, your order via our telephone application process or your signing of our Service Order Form; “Parties” means Comms Group and you, our customer; “Premises” means your premises in which we provide the Services to you; “Renewal Term” means a further commitment term which is for the same length of period as the original Minimum Term; “Services” means the services specified in Clause 1; “Small Business” means a business where no more than 10 individuals work (whether as employees or volunteers or otherwise); “Comms Group”, “we”, “us”, or “our” means Comms Group (UK) Limited a limited company incorporated in England and Wales registered under Number 06611435 whose registered office is at Artisans House, 7 Queensbridge, Northampton NN4 7BF “Comms Group Equipment” means any equipment, including any software, owned or controlled by Comms Group and placed in your Premises to provide the Services; and “you” and “your” or “customer” means you, our customer.
18 Variations a) We may vary the terms of this Agreement and the Charges from time to time. In the event that we make changes to this Agreement that are likely to cause a Material Detriment to you, you will be entitled to terminate this Agreement within 30 days of Comms Group notifying you of such changes. In order to ensure continuity, time will be of the essence for your notice to be received by us and if we have not received your notice within that time, you will be bound by the terms of this Agreement as varied. b) Subject to Clause 18(a) above, we shall be entitled to notify you of any updates and/or variations of the terms of this Agreement and our Charges, by email, through a notice in Comms Group invoices or by posting our updated Agreement at www.commsgroup.com. c) Unless we give you our prior consent in writing, you shall not be entitled to make any variations to this Agreement. 19 General a) You may not transfer, novate or assign this Agreement or any rights under it without our prior written consent. We may from time to time transfer, novate or assign any of our rights and/or obligations under this Agreement, including partial assignment, to a party who agrees to continue complying with our obligations under the Agreement. If any provision or condition of this Agreement shall be invalid or unenforceable, the remaining terms shall continue to apply. This Agreement represents the entire agreement between the Parties in relation to its subject matter and supersedes all agreements and representations made by either Party, whether oral or written. If there is any inconsistency between this Agreement and your Confirmation Letter, the Agreement shall take precedence. Any failure by either of us to enforce any right shall not be deemed a waiver of any such right. If either Party delays in acting upon a breach of this Agreement that delay will not be regarded as a waiver of that breach. If either Party waives a breach of this Agreement that waiver is limited to that particular breach. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England. The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). The Parties do not intend that this Agreement be enforceable by any person not a Party to this Agreement including under the General Terms (Rights of Third Parties) Act 1999 with the only exception that Clause 14 above which will also be enforceable by Comms Group’s, directors, employees, agents and subcontractors. The Parties acknowledge and agree that they have not been induced to enter into this Agreement by any representation, warranty or other assurance not expressly incorporated into it. Any notices sent by you to us must be sent on company letterheaded paper by post (or fax) to our trading address, Unit 2 IO Centre, Barn Way, Lodge Farm, Northampton NN5 7UW, must quote your account number and shall not be effective until received by us. Notices sent by Comms Group to you may be sent (i) by hand, post or by recorded delivery to your billing address specified on your Order or to your registered office; or (ii) by fax to your fax number specified on your Order or as otherwise notified by you to Comms Group in writing; or (iii) by email to your email address specified on your Order or as otherwise notified to Comms Group in writing; or (iv) by posting information in our website. Notice by us to you given by hand shall be deemed given the same day. Notice by us to you given by post shall be deemed to have been received 48 hours from the date of posting. Notice by us to you given by recorded delivery shall be deemed given on the date and at the time of signature of the delivery receipt. Notice by us to you given by fax shall be deemed given when transmitted, provided that the sender shall have received a transmission report confirming correct transmission. Any communication from Comms Group to you by email shall be deemed to have been made on the working day on which the notice is first stored in your electronic mail-box. 20 The Direct Debit Guarantee a) This guarantee is offered by all banks and building societies that take part in the direct debit scheme. b) The efficiency and security of the Scheme is monitored and protected by your own bank or building society. c) If the amounts to be paid or the payment dates change Comms Group will notify you 10 working days in advance of your account being debited or as otherwise agreed. d) If an error is made by Comms Group or your bank or building society, you are guaranteed a full and immediate refund from your branch of the amount paid. e) If you receive a refund you are not entitled to, you must pay it back immediately when Comms Group asks you to. f) You can cancel a direct debit at any time by writing to your bank or building Society. Please also send a copy of your letter to us as stated within Clause 19
Telecoms Maintenance & Support
The Supplier has supplied certain hardware products to the Customer and has agreed to provide support and maintenance for this hardware on the terms set out in this agreement.
AGREED TERMS 1. INTERPRETATION 1.1 The definitions and rules of interpretation in this clause apply in this agreement. Additional Services: any Emergency Maintenance and/or any Excluded Maintenance performed by the Supplier under this agreement. Additional Services Fees: the fees payable in consideration of the provision of any Additional Services, which shall be calculated at the Additional Services Rates. Additional Services Rates: the rates as quoted by the Supplier for the additional work required. Business Day: a day other than a Saturday, Sunday or public holiday in England. Charges: the Maintenance Fees and the Additional Services Fees together. Commencement Date: the date specified in the Telecoms Maintenance & Support Agreement under heading start date. Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Maintenance Services, who need to know the confidential information in question (Representatives) to the other party and that party's Representatives in connection with this agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure. Corrective Maintenance: means: (a) making any adjustments to the Maintained Equipment; and (b) replacing any parts or components of the Maintained Equipment, required to restore the Maintained Equipment to Good Working Order, in accordance with clause 2.3. Customer: you as set out in the Customer’s Company Details on the Telecoms Maintenance & Support Agreement. Excluded Causes: means: (a) a defect in the manufacturer's design of the Maintained Equipment; (b) faulty materials or workmanship in the manufacture of the Maintained Equipment; (c) use of the Maintained Equipment with computer equipment or materials not supplied or approved in writing by the Supplier; (d) any maintenance, alteration, modification or adjustment performed by persons other than the Supplier or its employees or agents [unless approved by the Supplier in accordance with clause 5(f)]; (e) the Customer or a third party moving the Maintained Equipment; (f) the use of the Maintained Equipment in breach of any of the provisions of the agreement under which the Maintained Equipment was supplied; (g) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Maintained Equipment; (h) a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Maintained Equipment, or an error or omission in the correct use of that air conditioning or other environmental controls by the Customer; or (i) the neglect or misuse of the Maintained Equipment. Excluded Maintenance: any maintenance services required to restore any malfunctioning or failed Maintained Equipment to Good Working Order where the malfunction or failure results from or is caused by any of the Excluded Causes. Emergency Maintenance: in accordance with clause 2.4 and clause 2.5. (a) making any adjustments to the Maintained Equipment; and (b) replacing any parts or components of the Maintained Equipment, required to restore the Maintained Equipment to Good Working Order, Fix Time: the applicable fix times as set out in the Telecoms Maintenance & Support Agreement. Good Industry Practice: in relation to any undertaking and any circumstances, the exercise of skill, diligence, prudence, foresight and judgement and the making of any expenditure that would reasonably be expected from a skilled person engaged in the same type of undertaking under the same or similar circumstances. Good Working Order: the Maintained Equipment operates in accordance with the Operating Manuals. Initial Period: the period of time as identified on the Telecoms Maintenance & Support Agreement under heading Duration of Support (Initial Period) commencing on the Commencement Date. Location: the location of the Maintained Equipment at the Customer's premises as specified in the Telecoms Maintenance & Support Agreement, or any other location as may be agreed by the parties in writing from time to time. Maintained Equipment: the equipment specified in the Telecoms Maintenance & Support Agreement. Maintenance Services: Preventative Maintenance, Corrective Maintenance and Emergency Maintenance of the Maintained Equipment.
Normal Business Hours: 9.00 am to 5.00 pm GMT on a Business Day. Operating Manuals: all operating manuals, specifications and other manufacturer documentation relating to the Maintained Equipment. Preventative Maintenance: means: (a) testing that the Maintained Equipment is functional; and (b) making any adjustments as may be required to ensure the Maintained Equipment remains in Good Working Order, in accordance with clause 2.2. Renewal Period: each successive 12-month period after the Initial Period for which this agreement is renewed. Response Time: the applicable response times as set out in the service choice selection or associated special terms as identified in the Telecoms Maintenance & Support Agreement. Standard Maintenance Fees: the fees payable by the Customer for the provision of the Maintenance Services, as set out in the Telecoms Maintenance & Support Agreement, as these fees are varied from time to time in accordance with the terms of this agreement. Supplier: Comms Group (UK) Limited incorporated and registered in England and Wales with company number 06611435 whose registered office is at Artisans House, 7 Queensbridge, Northampton, NN4 7BF Term: the Initial Period together with all Renewal Periods. 1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement. 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 1.4 The Telecoms Maintenance & Support Agreement form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Telecoms Maintenance & Support Agreement. 1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. 1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. 1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. 1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. 1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision. 1.10 A reference to writing or written includes faxes but not e-mail. 1.11 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule. 1.12 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 2. MAINTENANCE SERVICES 2.1 During the Term, the Supplier shall provide the Customer with the Maintenance Services for the Maintained Equipment at the Location. 2.2 The Supplier shall perform Preventative Maintenance of the Maintained Equipment in accordance with Service Choice Selection and any associated Special Terms as referred to on the Telecoms Maintenance & Support Agreement. 2.3 On the Customer informing the Supplier that the Maintained Equipment is malfunctioning or has failed or is otherwise not in Good Working Order, the Supplier shall use all reasonable endeavours to perform Corrective Maintenance of the Maintained Equipment within the relevant Fix Time in accordance with Service Choice Selection and any associated Special Terms as referred to on the Telecoms Maintenance & Support Agreement. 2.4 On the Customer informing the Supplier outside of Normal Business Hours that the Maintained Equipment is malfunctioning, has failed or is not in Good Working Order, the Supplier shall use all reasonable endeavours to perform Emergency Maintenance of the Maintained Equipment within the relevant Fix Time in accordance with Service Choice Selection and any associated Special Terms as specified on the Telecoms Maintenance & Support Agreement. 2.5 Emergency Maintenance shall be charged at the Additional Services Rates for each of the Supplier's personnel reasonably required to attend the Location or provide office assistance remotely. Any additional charges shall be calculated from when the personnel arrive at the Location until they leave the Location or for time spent for remote assistance. 2.6 In performing the Maintenance Services, the Supplier shall use all reasonable endeavours to restore any malfunctioning or failed Maintained Equipment to Good Working Order while in attendance at the Location or remotely. Where this is not reasonably practicable, or not reasonably practicable within Normal Business Hours (in the case of Preventative Maintenance and Corrective Maintenance), the Supplier shall either arrange for a further visit to the Location or further remote work within Normal Business Hours to complete the repair, or remove the Maintained Equipment or part of the Maintained Equipment for repair off-site. 2.7 The Supplier shall procure that its personnel shall, while on site at the Location, comply with the Customer's reasonable health and safety and security policies provided that these policies have been brought to the attention of its personnel. 3. REPLACEMENTS AND SPARE PARTS 3.1 In performing the Preventative Maintenance, Corrective Maintenance and the Additional Services, the Supplier shall use all reasonable endeavours to source spare parts (new or refurbished) required to restore the Maintained Equipment to Good Working Order. The Supplier shall have the right to charge the Customer for the spare parts. 3.2 All spare parts and/or replacements provided by the Supplier to the Customer shall become part of the Maintained Equipment and the property of the Customer. The Supplier will assign to the Customer, with full title guarantee and free from all third-party rights, all spare parts and/or replacements provided by the Supplier. All parts and components removed from the Maintained Equipment by the Supplier in the course of performing the Preventative Maintenance, Corrective Maintenance and/or the Additional Services shall no longer constitute part of the Maintained Equipment and will be the property of the Supplier. The Customer will assign to the Supplier, with full title guarantee and free from all third-party rights, all parts and components removed from the Maintained Equipment by the Supplier in accordance with this clause 3.2. 4. CUSTOMER'S OBLIGATIONS The Customer shall: (a) ensure that the Maintained Equipment is installed and kept in suitable premises and under suitable conditions, as specified in the Operating Manuals, permit only trained and competent personnel to use it and follow any operating instructions as the Supplier may give from time to time; (b) notify the Supplier promptly if the Maintained Equipment is discovered to be operating incorrectly; (c) at all reasonable times permit full and free access to the Location and to the Maintained Equipment to the Supplier, its employees, contractors and agents, and provide them with adequate and safe working space, and any telecommunications facilities as are reasonably required to enable the Supplier to perform the Maintenance Services and the Additional Services while at the Location; (d) provide the Supplier with any information that is reasonably requested in the performance of the Maintenance Services and the Additional Services; (e) take any steps reasonably necessary to ensure the safety of the Supplier's personnel when attending the Location; (f) not allow any person other than the Supplier to maintain, alter, modify or adjust the Maintained Equipment without the prior written approval of the Supplier; (g) not move the Maintained Equipment from the Location without the prior written approval of the Supplier (approval not to be unreasonably withheld or delayed); (h) store any reserve equipment only in conditions approved by the Supplier, and make this equipment available for periodic maintenance, as with all other Maintained Equipment; and (i) only use supplies or materials supplied or approved by the Supplier (approval not to be unreasonably withheld or delayed). 5. EXCLUDED MAINTENANCE 5.1 The Supplier is not obliged to perform any Excluded Maintenance. 5.2 Where the Supplier is performing or has performed the Maintenance Services in circumstances where it is established that the Maintained Equipment was not in Good Working Order due to any of the Excluded Causes, the Supplier may charge, and the Customer shall pay, the Additional Services Fees in respect of that work. 6. CHARGES 6.1 For the performance of Corrective Maintenance and Preventative Maintenance, the Customer shall pay to the Supplier the Standard Maintenance Fees. 6.2 For the performance of any Additional Services, the Customer shall pay to the Supplier the Additional Services Fees. 6.3 The Standard Maintenance Fees and the Additional Services Fees shall be inclusive of all expenses, other than those recoverable in accordance with clause 3.1, and the Supplier shall be responsible for all costs and expenses incurred in providing the Maintenance Services (other than those recoverable in accordance with clause 3.1). 6.4 The Standard Maintenance Fees shall be due and payable as specified on the Telecoms Maintenance & Support Agreement. Any Additional Services Fees shall be due and payable as specified on any additional quotation provided by the Supplier. Any charges for spare parts recoverable in accordance with clause 3.1 shall be as specified on any additional quotation from the Supplier. 6.5 The Supplier reserves the right to charge interest at an annual rate of 8% above the base rate of Barclays Bank plc, calculated on a daily basis in respect of any sum which is due and unpaid, that interest to run from the date on which that sum is due and payable until receipt by the Supplier of the full amount, whether before or after judgment. 6.6 All Charges are exclusive of VAT or any other applicable sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law. 6.7 The Supplier may, at any time on the anniversary of the Commencement Date, increase the Standard Maintenance Fees by giving to the Customer not less than one month’s written notice. 7. SUPPLIER WARRANTIES 7.1 The Supplier represents and warrants to the Customer that: (a) the Maintenance Services and the Additional Services shall be performed: (i) by an appropriate number of suitably qualified and experienced personnel; (ii) using all reasonable skill and care and in accordance with Good Industry Practice; and (iii) in accordance with all applicable laws and regulations in force from time to time. (b) the Supplier has the full capacity and authority and all necessary permissions, licences and consents necessary to enter into, and perform its obligations under, this agreement. 7.2 Except as expressly stated in this agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including fitness for purpose and suitability) are hereby excluded to the extent permitted by law. 8. LIABILITY 8.1 Neither party excludes or limits liability to the other party for: (a) fraud or fraudulent misrepresentation; (b) death or personal injury caused by negligence; or (c) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982. 8.2 Subject always to clause 8.1, neither party shall be liable whether in contract, tort (including for negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, for: (a) any loss (whether direct or indirect) of profits, business, revenue, or goodwill; (b) loss or corruption (whether direct or indirect) of data or information; or (c) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement. 8.3 Subject always to clause 8.1, each party's total aggregate liability in contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the greater of £250. 9. CONFIDENTIALITY 9.1 The term Confidential Information does not include any information that: (a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause); (b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; (c) was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; (d) was known to the receiving party before the information was disclosed to it by the disclosing party; (e) the parties agree in writing is not confidential or may be disclosed; or (f) is developed by or for the receiving party independently of the information disclosed by the disclosing party. 9.2 Each party shall keep the other party's Confidential Information confidential and shall not: (a) use any Confidential Information except for the purpose of exercising or performing its rights and obligations under this agreement (Permitted Purpose); or (b) disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause. 9.3 A party may disclose the other party's Confidential Information to those of its Representatives who need to know that Confidential Information for the Permitted Purpose, provided that: (a) it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and (b) at all times, it is responsible for the Representatives' compliance with the confidentiality obligations set out in this clause 9. 9.4 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible. 9.5 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information, other than those expressly stated in this agreement, are granted to the other party, or are to be implied from this agreement. 9.6 The provisions of this clause 9 shall continue to apply after termination of this agreement. 10. TERM AND TERMINATION 10.1 This agreement shall commence on the Commencement Date and shall remain in force, unless terminated earlier in accordance with clause 10.2, for the Initial Period. The Term of the agreement shall automatically be extended for a Renewal Period at the end of the Initial Period and at the end of each Renewal Period, unless a party gives written notice to the other party, not later than 90 days before the end of the Initial Period or the relevant Renewal Period, to terminate this agreement. 10.2 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may terminate this agreement with immediate effect by giving written notice to the other party if: (a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make that payment; (b) the other party commits a material breach of any material term of this agreement (other than failure to pay any amounts due under this agreement) and (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; (c) the other party: (i) suspends, or threatens to suspend, payment of its debts; (ii) is unable to pay its debts as they fall due or admits inability to pay its debts; (iii) (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (iv) (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or (v) (being a partnership) has any partner to whom any of clause 10.2(c)(i) to clause 10.2(c)(iv) apply. (d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (in the case of a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); (g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other similar process is levied or enforced on or sued against, the whole or any part of the other party's assets and that attachment or process is not discharged within 14 days; (j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(c) to clause 10.2(i) (inclusive); (k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or (l) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010). 10.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect. 10.4 Termination of this agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination. 10.5 On termination of this agreement for any reason, each party shall as soon as reasonably practicable: (a) return or destroy (as directed in writing by the other party) any documents, handbooks, CD-ROMs or DVDs or other information provided to it by the other party or data for the purposes of this agreement, including all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information. If required by the other party, it shall provide written evidence (in the form of a letter signed by its Managing Director) no later than 14 days after termination of this agreement that these have been destroyed and that it has not retained any copies of them, except for one copy that it may use for audit purposes only, and subject to the confidentiality obligations in clause 9; (b) delete (to the extent possible) any proprietary software belonging to the other party and all the other party's Confidential Information from its IT network and hard disks or other storage means associated with any computer equipment owned or controlled by the other party. Each party shall provide written confirmation (in the form of a letter signed by its Managing Director) no later than 14 days after termination of this agreement that this software and Confidential Information has been deleted; (c) return all of the other party's equipment and materials, failing which, the other party may enter the relevant premises and take possession of them. Until these are returned or repossessed, the party remaining in possession shall be solely responsible for their safe-keeping; (d) the Supplier shall provide all reasonable assistance to the Customer and/or any third party engaged by the Customer in connection with the maintenance and support of the Maintained Equipment; (e) the Customer shall immediately pay any outstanding amounts owed to the Supplier pursuant to this agreement. 10.6 Regardless of its obligations in this clause 10, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials which it would otherwise be required to return or destroy under clause 10.5, it shall notify the other party in writing of that retention, giving details of the documents or materials that it must retain. Clause 9 shall continue to apply to any retained documents and materials, subject to this clause 10. 11. FORCE MAJEURE Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if that delay or failure results from events, circumstances or causes beyond its reasonable control. In these circumstances the affected party shall be entitled to a reasonable extension of the time for performing its obligations, provided that, if the period of delay or non-performance continues for 2 months, the party not affected may terminate this agreement by giving 14 days' written notice to the other party. 12. ASSIGNMENT 12.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any of its rights and obligations under this agreement without the prior written consent of the Supplier. 12.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person. 13. WAIVER No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. 14. NOTICE 14.1 Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next-working-day delivery service providing proof of postage, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number providing proof of transmission. 14.2 Any notice or communication shall be deemed to have been received, if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by fax, at 9.00 am on the next Business Day after transmission, or otherwise at 9.00 am on the second Business Day after posting. 14.3 This clause 14 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, writing shall not include e-mail. 15. ENTIRE AGREEMENT 15.1 This agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter. 15.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. 15.3 Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract. 16. CHANGES TO THESE TERMS The Supplier reserves the right to amend these terms at any time by giving the Customer at least one month’s notice. 17. SEVERANCE 17.1 If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected. 17.2 If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention. 18. NO PARTNERSHIP OR AGENCY Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. 19. THIRD-PARTY RIGHTS No person other than a party to this agreement shall have any rights to enforce any term of this agreement. 20. GOVERNING LAW AND JURISDICTION 20.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date in which this agreement is signed by the Customer or the Commencement Date, whichever is the earlier.