Network Services Terms and Conditions
TELCOWORX is trading name of MMD TECHNOLOGIES LTD registered at companies house (Reg No 13629694)
and HRMC VAT Office (VAT No 439 3803 76).
TELCOWORX is a provider of managed communications services including mobile products, networked IT
services, local, national, and international telecommunications services, and broadband, M2M Services and
internet products and services. By taking the Landline Service(s) you agree to the following Terms and
Conditions and that they set out the basis upon which TELCOWORX will provide the Landline Services to you
the Customer.
1. DEFINITIONS AND INTERPRETATIONS
1.1 The Order Form and Supplementary Order Form(s) form part of this Contract and are contractually
binding on the parties.
1.2 In this Contract the following expressions have the following meanings, unless the context requires
otherwise:-
“Billing Period”
Means any period in respect of which we bill you from time to time for your use of any of the Services
provided to you
“Charges”
Means our published list of prices as amended from time to time applicable both to our Services in general and
your particular Tariff Plan available from Customer Services
“Commencement Date”
Means the date upon which our supply to you of any Service commences
“Conditions” & “Terms and Conditions”
Means these terms and conditions as amended by us from time to time in accordance with clause 18.3
“Confidential Information”
Means any information marked confidential or information that the author would not wish to be disclosed to
customers, suppliers or to be publicly available
“Contract”
Means the contract between you and us to pay for and receive the Service set out in these Conditions and the
Order (together with such changes and/or other terms as may be notified to you from time to time) and your
current Tariff Plan as amended from time to time
“Credit Limit”
Means any credit limit, which is applied to your account either when you apply for any Service or at any time
thereafter at TELCOWORX’s sole discretion
“Customer Purchased Equipment”
Means any equipment sold or provided to the Customer by TELCOWORX
“Customer “Representative”
Means the person or persons named under Customer Representative on the Order Form
“Customer Services”
Means the customer services facility provided by us for you to report any faults with any Service or make
general or account enquiries via 0330 996 0161 (or such other number as may be advised to you by us from
time to time) or by email. Customer Services help-line facilities are available in respect of the Landline Service
between the hours of 9am to 5pm Monday to Friday. Calls to Customer Services may be monitored
“Customer”
Means any customer who enters a Contract
“Customers Logo”
Means the trading Logo of the Customer
“Delivery Address”
Means the Delivery Address as detailed on the Order form
“Directors Guarantee Provision”
Means a personal guarantee given by a Director of the Customer to TELCOWORX
“Equipment”
Means any equipment, electronic portal or Service provided to the Customer for the performance of the
Services
“CPS”
Means Carrier Pre-Select, a method of indirect access to route your calls over a network of TELCOWORX’s
choice
“Good Industry Practice”
Means standards, practices, methods and procedures conforming to the Law and the degree of skill and care,
diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and
experienced person or body engaged in a similar type of undertaking under the same or similar circumstances
“GSM Gateway”
Means a fixed device containing one or more SIM Cards which enables a call from a fixed phone to a Mobile
Phone to be routed directly into a mobile Network as if it were from a Mobile Phone
“TELCOWORX PORTAL”
Means the electronic portal allowing the Customer access to control of some or all of the Services
“TELCOWORX Representative”
Means the person or persons named under TELCOWORX Representative on the Order form or other such
person or Subcontractor notified by TELCOWORX to the Customer from time to time
“Initial Term”
Means the term outlined in the Order Form which begins on the Commencement Date. For a Verbal Contract
means the term agreed on the Sales Call which begins on the Commencement Date. Where no Initial Term is
recorded on the Order Form or on a Sales Call the Initial Term will be 36 months which begins on the
Commencement Date or earliest date of payment being made by the Customer for any invoice
“Installation Date”
Means the date when the Service(s) are activated and ready for use
“Minimum Period”
Means the minimum period that applies to your Contract, which will depend on the Tariff Plan you select at
the time you place your Order as outlined on your Order Form. If no Minimum Period is defined on the Order
form the Minimum Period will be 36 months. Where additional Landline Services are taken the
Commencement Date for the additional Services is applied to all existing Services meaning all Services
commence a new Minimum Period from the new Commencement Date
“Minimum Spend”
Means the higher of, the Initial Term multiplied by the average monthly spend in the 6 months prior to
termination notice being received or the sum exclusive of VAT set out in the Order Form that the Customer
shall spend with TELCOWORX for the Service or the estimated
“Landline Service(s)” Or “Service(s)”
Means all Services other than Broadband or Mobile Services to be supplied by TELCOWORX to the Customer
under the Conditions of this Contract
“Network”
Means as the context requires either the public switched telecommunications, internet protocol packet
Network and/or a wireless telegraphy link by means of a cellular radio system operated by a Network Operator
“Order”
Means any request for Services that the Customer makes to TELCOWORX for any Services. Where multiple
services are taken under one Order these are co-dependant for the term of the contract and cannot be
cancelled separately. Where an Order includes calls these are chargeable for the duration of the Minimum
Period. If the Customer moves their calls to another provider during the Minimum Period TELCOWORX will
invoice monthly the amount defined on the Order under monthly call spend. Where no monthly call spend is
defined the average monthly call spend of the previous 6 months will be used to determine the monthly call
spend
“Order Cancellation Charge”
Means a Termination Fee will be payable
“Premises” or “Site”
Means the UK premises where we agree we shall provide you with the Landline Service
“Representatives”
Means a person or company acting on behalf of either TELCOWORX or the Customer
“Sales Call”
Means the telephone conversation between TELCOWORX and the Customer in which the agreement is made
by TELCOWORX to supply services to be used by the Customer
“Service Level Commitment”
Shall have the meaning given to it in the Order Form or clause 16
“Supplementary Order Form”
An additional Order form for use by an existing Customer to take additional Services
“Tariff Plan”
Means the Tariff (that may include some elements which are not chargeable) which you select for the Services
at the time you place your Order and which you may change from time to time by agreement with us and
where we agree, such change to take effect at the start of your next Billing Period
“Tariff”
Means the tariff setting out our list of Charges for any of the Services we offer from time to time
“Term”
Means 36 months or as defined on the Order form
“Termination Fee”
Means the Minimum Spend less any sums already paid to TELCOWORX (exclusive of VAT)
“Title”
Means the legal ownership
“Verbal Contract”
Means any agreement made on a Sales Call
“we”, “us”, “our”, “TELCOWORX”
Means TELCOWORX Solutions Limited of Eden point, Three Acres Lane, Cheadle Hulme SK8 6RL
“Working Day”
Means any day (other than a Saturday or Sunday) when banks are generally open for normal business in
London
“Year”
Means the twelve month period commencing on the installation date until the first anniversary of the
installation date and each subsequent twelve month period until the next anniversary of the installation date
1.3 The headings in these Terms and Conditions are for convenience only and will not affect the construction
of the Terms and Conditions. References to clauses are to the clauses of the Conditions; references to the
Order form and paragraphs are to the Order form for the Services which these Terms and Conditions cover and
the paragraphs within the Order form. If there is any conflict between the Conditions and an Order form the
Conditions will prevail.
1.4 In these Terms and Conditions-
1.4.1 the use of the singular will be construed to include the plural (and vice versa) and the use of any gender
will be construed to include all genders;
1.4.2 references to a person include individuals, incorporated bodies, unincorporated associations and
partnerships and the permitted transferees and assignees of such persons;
1.4.3 references to any statute, enactment, order, statutory instrument or statutory provision include such
statute, enactment, order, statutory instrument or statutory provision together with all regulations and
subordinate legislation made there under, all as from time to time amended, re-enacted, consolidated or
replaced;
1.4.4 the expressions “including”, “include”, “includes”, “included” and “in particular” will be construed to
mean without limitation; and
1.4.5 references to loss include destruction.
2. TERM AND RENEWAL
2.1 This Contract will come into force immediately upon signature by both parties and will remain in force for
the Initial Term and renew for further Terms of equivalent length of the Initial Term upon expiry of the Initial
Period unless and until terminated earlier in accordance with Clause 11.
2.2 The Customer appoints TELCOWORX as its preferred supplier of the Landline Services from the date of
execution of this Contract for the duration of the Contract.
3. TELCOWORX’S OBLIGATIONS
3.1 Without prejudice to any other provision in this Contract TELCOWORX shall:-
3.1.1 provide the Services in accordance with this Contract;
3.1.2 take all reasonable steps to obtain such documents, information and co-operation from the Customer as
it may reasonably require to supply the Services;
3.1.3 supply the Services in accordance with health and safety and environmental legislation and other
applicable legislation, statutory requirements, regulations and Good Industry Practice and relevant codes of
conduct of the professions and industries to which TELCOWORX’s activities relate;
3.1.4 ensure that each of its Representatives who visits a Site complies with all rules, instructions, codes of
conduct and security codes in force from time to time at such Site as notified to TelcoWorx’s Representative by
the Customer and with all reasonable requests and requirements in respect of Site rules, instructions, codes of
conduct and security codes communicated by or on behalf of the Customer to TELCOWORX;
3.2 Without prejudice to the generality of the foregoing, TELCOWORX warrants, subject to clause 3.3 that:
3.2.1 the Services will be provided under proper supervision, with reasonable skill and care, in a professional
manner by suitably trained, skilled, experienced professionals;
3.2.2 it shall use reasonable endeavours to perform the Services in accordance with such timescales as may be
agreed between the parties from time to time;
3.3 The Customer acknowledges that the Services in general will not be error free, and agrees that the
existence of such errors shall not constitute a breach of the Contract.
3.4 TELCOWORX does not offer or intimate any guarantee of service and/or service availability.
3.5 Where there is an interruption in service no compensation for loss of business profits or revenues will be
paid by TELCOWORX or any underlying service providing supplier.
3.6 TELCOWORX will provide the Services using such Representatives as it considers suitable to undertake the
work. Nothing in this Contract will in any way restrict TELCOWORX’s right to use its Representatives to supply
services similar to the Services to other customers of TELCOWORX.
3.7 Subject to clause 3.3, the Customer Purchased Equipment will comply with all applicable legal and
regulatory requirements and with applicable British Standards (or, if applicable, their equivalent requirements
in the territory in which the Customer Purchased Equipment is supplied).
3.8 TELCOWORX shall deliver the Customer Purchased Equipment to the Delivery Address and risk in such
Equipment shall pass to the Customer on delivery.
3.9 Title to the Customer Purchased Equipment shall not pass to the Customer until:
3.9.1 TELCOWORX has received payment in full (in cash or cleared funds); or
3.9.2 if subsidised in any way from the recommended retail price by TELCOWORX, once the Minimum Spend
has been satisfied
3.10 TELCOWORX shall endeavour to transfer to the Customer the benefit of any manufacturer warranty or
guarantee given to TELCOWORX in respect of the Customer Purchased Equipment.
3.11 The date for delivery of the Customer Purchased Equipment shall be the date agreed between the parties.
Time shall not be of the essence with respect to the delivery of the Customer Purchased Equipment.
3.12 In respect of leased or rented TELCOWORX equipment all equipment supplied remains the property of
TELCOWORX and Title does not pass to the Customer. Equipment is subject to manufacturer’s warranty and
TELCOWORX does not offer or provide guarantees or warranties on any products. TELCOWORX will replace any
equipment complying with and within the manufacturer’s warranty.
3.13 TELCOWORX does not support any third party software applications and no guarantees of compatibility
are offered.
3.14 Company shall be at liberty, where necessary, to improve, update or upgrade the Services or alter the
provision of the Services without any notice to the Customer.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall provide such co-operation, information (including authorisation to transfer their
existing services, facilities and access to the Site to TELCOWORX and TELCOWORX’s Representatives as may
reasonably be requested and as are reasonably necessary for TELCOWORX to perform its obligations under this
Contract.
4.2 The Customer shall provide TELCOWORX with all information in its possession or power concerning the
Customer’s operations and activities, including but not limited to software, manuals, data, drawings and any
other documents or materials, which may reasonably be necessary to enable TELCOWORX to perform the
Services and will also ensure that its relevant Representatives are generally available to provide such
assistance or information as TELCOWORX may reasonably require in the course of providing the Services.
4.3 The Customer shall be responsible for any changes or modifications made to the Equipment by any person
other than TELCOWORX or a TELCOWORX Representative, unless made with TELCOWORX’s written consent or
approval. TELCOWORX shall be entitled to charge the Customer at TELCOWORX’s standard rates for work
caused by such changes or modifications to the Equipment.
4.4 The Customer shall comply with all licences, acceptable use policies (available on www.TelcoWorx.co.uk),
legislation, regulations and codes of practice to which it is subject in relation to the Equipment and receipt of
the Services.
4.5 The Customer shall prevent its Representatives from using the Services in any of the following ways:
4.5.1 in breach of any reasonable instruction given by TELCOWORX, or any body which has regulatory powers
relating to the Services;
4.5.2 to send, receive, upload, download, use or reuse any information or material which is offensive, abusive,
indecent, defamatory, obscene or menacing or in a breach of any legally enforceable right of confidence,
copyright, privacy or any other similar right;
4.5.3 to put TELCOWORX in breach of the terms of any agreement TELCOWORX has with any public
telecommunications operator or any of its suppliers, the details of which have previously been notified in
writing by TELCOWORX to the Customer; or
4.5.4 in any way which could render TELCOWORX subject to any criminal prosecution, enforcement action, civil
claim or other action or liability.
4.6 The Customer shall comply with TELCOWORX’s reasonable instructions as to the use and care of the
Equipment. The Customer will pay for any repair or replacement needed if the Equipment is damaged by any
means.
4.7 The Customer shall take all reasonable steps to ensure that PIN numbers and passwords are kept
confidential and secure, are used properly and are not disclosed to unauthorised persons. The Customer shall
indemnify TELCOWORX and keep TELCOWORX effectively indemnified against all and any losses, costs and
expenses (including legal costs) that TELCOWORX may suffer from fraudulent activity on the Service(s) or
incurred as a consequence of any failure on the part of the Customer to comply with the terms of this clause.
4.8 If applicable the Customer shall provide TELCOWORX with the necessary written authorisation to enable
TELCOWORX to arrange for the Services to be transferred to TELCOWORX as soon as possible following the
signature date of the Order form.
4.9 If required by TELCOWORX either at the start of the Contract, or at any point thereafter, agree and sign
TELCOWORX’s Directors Guarantee Provision.
4.10 The Customer shall ensure that they have correctly given any notice periods required to any previous
Service providers.
4.11 The Customer agrees that at all times during the term of the Contract it shall inform Company by one
month’s prior notice in writing of any premises relocation, registered address changes, or change of telephone
number(s) on which the Services are registered.
4.12 The Customer undertakes to Company that:
a) for the duration of the Minimum Term it will route all its inbound, non-geographic and outbound calls
(including without limitation all its voice, fax and data traffic) via Company on an exclusive basis. For the
avoidance of doubt the Customer acknowledges and accepts that during the Minimum Term it shall not use
any services offered by a third party which are competitive with or substantially similar to the Services. In the
event of any breach by the Customer of this Condition 4.12(a) the terms of Condition 7.16 shall apply;
b) the Services and the Company Network will only be used in accordance with the Contract.
5. ADDITIONAL ITEMS
5.1 The Customer may at any time during the term of their Contract request additional goods or Services via a
Supplementary Order Form.
6. THIRD PARTY RIGHTS
6.1 A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act
1999 to enforce any term of this Contract, but this does not affect any right or remedy of a third party which
exists or is available apart from under that Act.
7. PAYMENT OF THE CHARGES
7.1 The Customer shall pay the Charges as set out on the Order form or as advised by TELCOWORX from time
to time.
7.2 TELCOWORX will invoice the Customer for the Charges on the basis of and in accordance with this clause 7
and the Order form.
7.3 The Customer shall also pay all Value Added Tax, or any other applicable sales tax or like charge in a
country where the Services are provided.
7.4 Subject to clause 7.5 below, the Customer shall pay the invoices submitted by TELCOWORX in accordance
with this Contract within 14 days of receipt by direct debit. If payment of any undisputed invoice is not made
by the due date, we reserve the right to charge you an administration fee of £25.00 plus VAT. TELCOWORX
Shall be entitled to charge interest on such overdue invoice at 8% per annum over HSBC Plc’s base lending rate
from time to time, applicable pro-rata to the number of days elapsed between the due payment date and the
actual payment date.
7.5 If the Customer disputes any invoice from TELCOWORX relating to the Services, the parties shall work
together in good faith to ensure that items under query or in dispute by the Customer are dealt with promptly.
The Customer shall only withhold payment of the specific items agreed with TELCOWORX as being under query
or under dispute. If the parties are unable to resolve the dispute as above, then the parties shall attempt to
resolve the dispute in accordance with the provisions of Clause 13.
7.6 The Customer may not exercise any right of set off, abatement, counterclaim, retention, deduction or any
other withholding against amounts invoiced to it by TELCOWORX.
7.7 Subject to Clause 7.5 if the Customer fails to pay the invoice submitted by TELCOWORX in accordance with
7.4 then TELCOWORX shall at its sole discretion immediately suspend any Service(s) provided by TELCOWORX
to the Customer under this or any other Contract. Such suspension of Service(s) shall be without any
compensation or penalty.
7.8 If a Customers Service is suspended in accordance with Clause 7.7, the Company reserves the right to
charge £35.00 plus VAT for each service that is reconnected. Reconnection of Service’s can take up to 72 hours
and the Company will not be liable for any loss of calls, business revenues or profits during this period. If
payment is made as a result of judgement the Company reserves the right to charge interest at the rate of 8%
over the base rate of HSBC Bank PLC on a daily basis on all monies outstanding after the due date until the
actual date of payment.
7.9 TELCOWORX has a minimum call duration of 59 seconds with an incremental duration of 60 seconds for all
calls, unless agreed in writing by TELCOWORX.
7.10 All calls are rounded up to the nearest penny, unless agreed in writing with TELCOWORX.
7.11 Line Rental is payable a quarterly in month one and monthly thereafter from month 2 of the Contract,
unless expressly agreed in writing by the Company. The Customer shall pay the charges by Direct
Debit. Payment is due on receipt of the invoice.
7.12 Should the Direct Debit agreement be cancelled for any reason, all Services will be suspended
immediately. If no alternative payment is made within 7 working days all Services will be ceased and all
contractual commitments will be due and payable in full including any Termination Fee.
7.13 The Company may pay losing provider termination fees, if agreed this will be put in writing by the
company and the credit will be offset against Monthly bundled call charges over the term of the contract.
7.14 If any Service is cancelled during the provisioning stage (pre live) an Order Cancellation charge will be
applied at £25.00 per line or SIP line.
7.15 The Customer must dispute any invoice within three months of the invoice date.
7.16 In the event of the Customer obtaining any services from a third party which are competitive with or
substantially similar to the Services during the Minimum Term or if there has been a material breach of the
Contract, the Customer accepts that Company shall be entitled to invoice the Customer during each month of
the remainder of the Minimum Term an amount equal to either:
(a) the average of the monthly amounts invoiced by Company to the Customer prior to the breach by the
Customer of Condition 4.12(a); or
(b) a 30-percent (30%) increase in monthly recurring rental charge for allowing third party Services to be used
by means of the Company Services including but not limited not limited to broadband, FTTC, LLU, Internet
leased lines and MPLS data.
8. LICENCE GRANT AND INTELLECTUAL PROPERTY INDEMNITY
8.1 Subject to clause 8.2, TELCOWORX grants to the Customer a non-exclusive, non-transferable, royalty free
licence to use TELCOWORX PORTAL for the purposes described in this Contract for so long as this Contract
remains in force.
8.2 The Customer will not without TELCOWORX’s prior written consent;
(a) distribute or sell copies of the TELCOWORX PORTAL or its documentation to third parties; or
(b) sub-licence or otherwise grant rights to third parties for the use of TELCOWORX PORTAL; or
(c) copy nor (except as permitted by law) decompile or modify the software, or copy manuals or
documentation licensed to it by or on behalf of TELCOWORX. In the case of manuals or documentation such
written consent will not be unreasonably withheld or delayed.
The licence granted under subclause 8.1 shall terminate when this Contract expires or is terminated.
8.3 TELCOWORX shall indemnify the Customer to the extent that it suffers any damage, loss, liability, cost, fine
or expense of any kind in relation to a claim or allegation from a third party that the Customer’s use of the
Services infringe a third party’s Intellectual Property Rights. As a condition of this indemnity the Customer
must:
8.3.1 notify TELCOWORX forthwith in writing of any allegation of infringement;
8.3.2 make no admission in respect of or settlement of any claim without TELCOWORX’s prior written consent;
8.3.3 allow TELCOWORX sole control of all negotiations and defence of proceedings;
8.3.4 provide TELCOWORX all reasonable assistance in dealing with the allegation or claim (TELCOWORX shall
pay the Customer’s reasonable expenses for such assistance); and
8.3.5 allow TELCOWORX to modify or replace the Services or any part thereof, so as to avoid the infringement.
8.4 The indemnity in clause 8.3 above does not apply to infringements caused by the use of the Services in
conjunction with other equipment, software or services not supplied by TELCOWORX and not approved by
TELCOWORX for use in conjunction with the Services or to infringements occasioned by designs or
specifications made by or on behalf of Customer (but excluding designs or specifications made or approved by
TELCOWORX).
8.5 The Customer agrees to indemnify TELCOWORX against all claims, proceedings, costs and expenses of any
nature arising from infringement (or alleged infringement) of any third party Intellectual Property Rights by
reason of the Customer’s use of the Services in conjunction with other equipment, software or services not
supplied by TELCOWORX and not approved by TELCOWORX for use in conjunction with the Services and
infringements occasioned by designs or specifications made by or on behalf of Customer (but excluding
designs or specifications made or approved by TELCOWORX). TELCOWORX shall:
8.5.1 notify the Customer forthwith in writing of any allegation of infringement;
8.5.2 make no admission in respect of or settlement of any claim without TELCOWORX’s prior written
consent.;
8.5.3 allow the Customer to conduct all negotiations and defence of proceedings;
8.5.4 provide the Customer all reasonable assistance dealing with the allegation or claim (Customer shall pay
TELCOWORX’s reasonable expenses for such assistance); and
8.5.4 allow the Customer to modify any equipment, software or services it uses in conjunction with the
Services so as to ensure the equipment, software or services does not continue to infringe the third parties
Intellectual Property Rights.
8.6 The limitations and exclusions of liability contained in clause 10 below do not apply to liability under this
clause 8.
9. CONFIDENTIALITY AND PUBLICITY
9.1 Each party will keep strictly confidential all Confidential Information belonging to the other and/or the
other’s Representatives which is received or obtained during the negotiation or performance of this Contract
and, except with the prior written consent of the other (or of the relevant Representative of the other) or to
the extent that disclosure is required by law, will not disclose such Confidential Information to any third party
or copy or use it for any purpose other than for the proper performance of its obligations or the proper
exercise of its rights under this Contract.
9.2 Neither party will acquire any right in or Title to Confidential Information of the other or the other’s
Representatives nor any licence in respect of it except as expressly stated in this Contract. Each party will
protect the Confidential Information of the other and of the other’s Representatives as if it were its own
Confidential Information and will not copy, summarise, modify or disclose it except to the minimum extent
necessary to perform its obligations or exercise its rights under this Contract. Each party will ensure that all
persons to whom it discloses Confidential Information of the other or the other’s Representatives are bound
by obligations of confidentiality and non-disclosure at least equivalent to those in this Contract.
9.3 The duties imposed on the parties by clauses 9.1 and 9.2 above do not extend to information or data which
at the time of its disclosure or use by the receiving party:-
9.3.1 is generally available and known to the public other than by reason of the receiving party’s breach of this
clause 9;
9.3.2 the receiving party can demonstrate had previously come lawfully into the receiving party’s possession
from a third party under no restriction as to its use or disclosure; or
9.3.3 the receiving party can demonstrate that it developed independently without reliance on Confidential
Information of the other or of the other’s Representatives.
9.4 Each party agrees and acknowledges that damages alone may not be an adequate remedy for breach of
this clause 9 and that each party and their Representatives may be entitled to seek injunctive or other
equitable relief to remedy or prevent any breach or threatened breach of this clause 9.
9.5 TELCOWORX may use the Customers Logo on sales and promotional material without notification to the
Customer. However neither party will use the other’s name nor issue any statement, press release, other
advertising or other publicly disseminated material in connection with this Contract without the other’s
express prior written consent (not to be unreasonably withheld).
9.6 On termination of this Contract, each party shall;
A) return to the other party all documents and materials (and any copies thereof) containing, reflecting,
incorporating or based on the other party’s Confidential Information;
B) erase all the other party’s Confidential Information from its computer systems (to the extent possible); and
C) certify in writing to the other party that it has complied with the requirements of this clause, provided that a
recipient party may retain documents and materials containing, reflecting, incorporating or based on the other
party’s Confidential Information to the extent required by law or any applicable governmental or regulatory
authority.
9.7 The obligations in this clause 9 will remain in force following termination of this Contract for any reason.
10. LIABILITY
10.1 Neither party limits its liability for death or personal injury arising from its negligence (or its officers,
agents or employees) or any other matter in respect of which liability cannot be limited by law and clause 10.3
below will not apply to such liability.
10.2 Nothing in this clause 10 will exclude, restrict or limit either party’s liability for fraud or fraudulent
misrepresentation committed by that party (or its officers, agents or employees).
10.3 Subject to clauses 10.1 and 10.2, TELCOWORX’s entire liability under this Contract (other than under
clause 8.3 above) or for any cause of action related to the Services shall be limited to 25% of the invoiced value
in the preceding 12 months.
10.4 Except as regards to 10.1 TELCOWORX shall not be liable to the Customer, whether in contract, tort
(including negligence) or otherwise, for:
10.4.1 loss of profits;
10.4.2 business interruption; or
10.4.3 loss of anticipated savings; or
10.4.4 for any special, indirect or consequential loss or damages; or
10.4.5 for any loss, corruption or destruction of data; or
10.4.6 loss of business opportunity.
11. TERMINATION
11.1 TELCOWORX may terminate this Contract by:
11.1.1 giving not less than 30 days written notice to the Customer to expire no earlier than the end of the
Initial Term.
11.1.2 by notice to the Customer if any third party service which is essential to the provision of the Service(s) is
terminated or ceases to be available to TELCOWORX, at all or at an appropriate quality and no suitable
replacement shall be available on commercially reasonable terms. TELCOWORX shall give such advance notice
to the Customer as it is reasonably able to.
11.2 The Customer may terminate this Contract by giving 90 days written notice to expire at the end of the
Initial Term. If no notice is given the Initial Term restarts at the end of the previous Initial Term for the same
Minimum Period as agreed on the Order Form.
11.3 Either party may terminate the Contract:
11.3.1 immediately by written notice if the other has a receiver, liquidator or administrator appointed, is the
subject of bankruptcy proceedings, ceases to trade, passes a resolution for or is the subject of a winding up
order (except for the purpose of a solvent amalgamation or reconstruction), makes any composition or
arrangement with creditors or is unable to pay debt as and when they fall due;
11.3.2 on 14 days prior written notice if the other party is in material breach of its obligations under this
Contract and, if the breach is capable of remedy, has failed to remedy the breach within 28 days of receiving a
written notice from the other party specifying the breach and requiring it to be remedied.
11.4 Following termination of this Contract for any reason TELCOWORX shall:
11.4.1 if so requested by the Customer immediately destroy all documents and materials of whatever kind
belonging to the Customer and in TELCOWORX’s possession or power which belong to the Customer or which
have been created for the purpose of TELCOWORX’s performance of the Services.
11.5 Provisions which expressly or by implication are intended to come into force upon or survive termination
of this Contract will come into force upon or survive termination of this Contract for any reason.
11.6 If this Contract is terminated and the Customer wishes to transfer to another provider of landline
services, TELCOWORX will provide reasonable assistance to the Customer in respect of the transfer of the
Customer’s service providing all Termination Fees have been paid and no outstanding monies are owed to
TELCOWORX by the Customer.
11.7 Cancellation / Migration requests of services/numbers made during the Minimum Period does not relieve
the Customer from contractual obligations to pay any early Termination Fee due under this Contract, and in
relation to the remainder of the Initial Term, following termination.
11.8 The Tariff chosen at the acceptance of this Contract will remain the minimum Tariff selected for the Initial
Term.
11.9 Upon termination of the Services the Customer may incur additional administration fees and for
Broadband Services will also incur a cancellation fee of £75.00 per connection.
11.10 Should the credit score of the Customer change to a status of ‘Maximum Risk’ TELCOWORX reserve the
right to terminate all Services immediately. In such instances all outstanding invoices become due
immediately including contractual obligations and early Termination Fees.
12. Force MAJEURE
12.1 Neither party will be liable except as specified in this clause for any failure to perform, delay in performing
or imperfect performance of any obligation under this Contract to the extent that such failure, delay or
imperfect performance is caused by a Force Majeure Event.
12.2 If either party is affected by a Force Majeure Event it shall promptly notify the other party of the nature of
the Force Majeure Event, the nature of any actual or anticipated failure, delay or imperfect performance and
the anticipated consequence and length of such failure, delay or imperfect performance.
12.3 If a Force Majeure Event prevents TELCOWORX from providing the Services in accordance with this
Contract for 12 consecutive weeks or more, either party may terminate this Contract immediately by written
notice.
13. ESCALLATION AND DISPUTE RESOLUTION
13.1 If any dispute arises between the parties, the parties shall use their reasonable endeavours to settle such
dispute in accordance with the following procedures:
13.1.1 any dispute which has not been settled by the Customer’s Representative and the TELCOWORX
Representative within 10 working days of the matter being raised, may be escalated by either party;
13.1.2 if the dispute is not resolved under 13.1.1 then both parties shall indicate a Director of their respective
businesses within 10 working days and use their best endeavours to resolve the dispute within 30 working
days of the original dispute being raised;
13.1.3 If the parties fail to reach agreement under 13.1.1 or 13.1.2 the dispute resolution procedure under this
clause 13 shall be deemed exhausted.
13.2 Neither of the parties shall commence or pursue legal proceedings against the other until the dispute
resolution procedure under this clause 13 is deemed exhausted save that nothing in this clause 13.2 shall
prevent either party applying for injunctive relief.
14. ASSIGNMENT, SUB CONTRACTING AND DELEGATION
14.1 TELCOWORX may assign the whole or any part of this Contract or any of its rights or obligations under it.
14.2 The Customer may not assign the whole or any part of this Contract or any of its rights or obligations
under it except with TELCOWORX’s express prior written consent (such consent not to be unreasonably
withheld or delayed);
15. INSURANCE
15.1 The Customer warrants that it will insure any Customer Purchased Equipment (to it’s full replacement
value) delivered to it until Title has passed to the Customer pursuant to Clause 3.7
16. SPECIAL CONDITIONS
The Customer agrees to the following special conditions .
16.1 If any Services come with a Service Level Commitment these are only targets and failure to attain these
levels will not be considered to be a breech of this Contract
17. Notices
Any notice to be served on either party by the other under this Contract will be in writing and delivered by
hand or recorded delivery to the registered of the Customer.
17.2 Notices delivered by hand during normal business hours will be served on the day they are
delivered. Notices sent by first class post will be deemed served on the second business day after the date
they are posted.
18. Entire AGREEMENT
18.1 This Contract constitutes the entire agreement between the parties and supersedes any previous
negotiation, written, oral or electronic communication, arrangement or agreement between them or any
other statement or representation made by either of them in relation to the subject-matter of this Contract
including any proposal document (except that neither party hereby seeks to exclude liability for fraudulent
misrepresentation and except to the extent that either party has any outstanding liability to the other under a
previous arrangement or agreement).
18.2 The Customer acknowledges that it has not relied on any statement, promise or representation made or
given by or on behalf of TELCOWORX which is not set out in this Contract.
18.3 From time to time TELCOWORX may update its Terms and Conditions or Contract without being required
to give prior notice to the Customer;
18.3.1 if the Customer, acting reasonably, believes these changes materially affect the commercial viability of
the Service(s) then they will give notice of this within 30 days of receiving the notification from TELCOWORX
and both parties agree to resolve this dispute in line with clause13.
18.3.2 if no objection is received then the TELCOWORX updates are deemed to have been accepted.
18.3.3 any other variation of this Contract or the Terms and Conditions must be in writing and signed by or on
behalf of each party.
18.4 If any provision of this Contract is held by the parties or by any court or competent authority to be illegal,
invalid or unenforceable in whole or in part, that provision will be deemed to be deleted and not to form part
of this Contract and the enforceability of the remainder of this Contract will not be affected thereby. If any
provision of this Contract is so broad as to be held unenforceable, such provision will be interpreted to be only
so broad as is enforceable.
18.5 This Contract and any variation to this Contract may be executed in one or more counterparts, which,
taken together, will constitute a single Contract. If both parties execute two copies of this Contract, each
executed copy will count as an original.
18.6 Certain telecommunication systems and Services are subject to regulation by the Office of
Communications (“ofcom”). Ofcom may from time to time change the regulatory framework within which the
Services and Charges are provided and the Customer accepts that TELCOWORX may need to change the
Services and Charges to comply with such regulatory framework. The parties accept that such changes shall be
deemed to comply with the terms of clause 18.3.
19. WAIVER AND CUMULATIVE NATURE OF REMEDIES
19.1 The failure or delay of either party in any one or more instances to insist on strict performance of one or
more of the terms of this Contract or to exercise any right or remedy under this Contract or at law will not be
construed as a waiver of that or of any subsequent breach of the same term, any breach of any other term nor
of the right to enforce another such right or remedy or the same right or remedy arising on another occasion.
19.2 Unless there is express provision to the contrary in this Contract, no remedy conferred by any term of this
Contract is intended to be exclusive of any other remedy available under this Contract or at law. Each and
every remedy is cumulative and is in addition to each and every other remedy available under this Contract or
existing at law (whether in equity, by statute, at common law or otherwise).
20. LAW AND JURISDICTION
This Contract and all matters arising from it are governed by the laws of England and Wales and are subject to
the exclusive jurisdiction of the courts of England.