YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 12.
1.1 Definitions. In these terms and conditions (Conditions), the following definitions apply:
Airtime Contract: a contract which includes calls;
Business Day: a day other than a Saturday, Sunday or public holiday in Bangladesh when banks in Bangladesh are open for business;
Call Network: any network used to carry calls or data on Your behalf;
Commencement Date: the earlier of the date the Services are made available to You or the date of installation of the Equipment unless You have notified Us that you have not received the Equipment or that the Equipment has not been programmed;
Contract: the contract between I Data Com and the Customer for the supply of Equipment and/or Services in accordance with these Conditions;
Equipment: the equipment (or any part of it) set out in the Order;
Force Majeure Event: has the meaning given to it in clause 14.1;
Minimum Term: the minimum contract term which, unless an alternative term of up to 60 months is stated on the Order, will be 24 months from the Commencement Date;
Network Operator: the operator of any Call Network used to carry calls or data on Your behalf;
NGN: any non geographic number used by you for any of our NGN services;
Order: the Customer’s order for the supply of Equipment and/or Services, as set out overleaf;
Services: the services supplied by Us to You as set out in the Order;
We, Us, Our or I Data Com: I Data Com Limited registered in England and Wales with company number 06469177 trading from Vision House, Denbigh Road, Mold Clwyd CH7 1FT;
You, Your or the Customer: the person, firm or company who purchases the Equipment and/or Services from I Data Com;
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 successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory 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; and
(e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by You to purchase the supply of Equipment and/or Services in accordance with these Conditions and the Contract shall come into existence on the Commencement Date. The Contract constitutes the entire agreement between You and Us although You may also be required to enter into a contract with any applicable Network Operator which will also apply to your use of their Network. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Us which is not set out in the Contract.
2.2 Any advertising, illustrations or descriptions of the Equipment or Services issued by Us are issued or published for the sole purpose of giving an approximate idea of the Services and/or Equipment described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract (and to the supply of both Equipment and Services except where application to one or the other is specified) to the exclusion of any other terms that You may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 We reserve the right to make changes to these terms from time to time and/or to introduce new terms from time to time if there are changes to the law or amendments to the terms and conditions upon which we are able to obtain services from the Call Networks or Network Operators we are using or otherwise if we consider it necessary.
3.1 Equipment supplied under an Airtime Contract remains Our property and is not purchased by You unless you pay Us the purchase price of such Equipment in full on delivery as a separate payment to any payments to be made by You under the Airtime Contract.
3.2 We shall exercise reasonable care in the installation, operation and maintenance of the Equipment.
3.3 We reserve the right to amend the specification of the Equipment if required by any applicable statutory or regulatory requirements.
4. DELIVERY OF EQUIPMENT
4.1 We shall deliver the Equipment to the location set out in the Order or such other location as the parties may agree (Delivery Location) at an agreed time after We notify You that the Equipment is ready and delivery of the Equipment shall be completed on the Equipment’s arrival at the Delivery Location.
4.2 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. We shall not be liable for any failure to deliver the Equipment or delay in delivery of the Equipment that is caused by a Force Majeure Event or Your failure to provide Us with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
4.3 If You fail to accept or take delivery of the Equipment within 10 Business Days of Us notifying You that the Equipment is ready, then except where such failure or delay is caused by a Force Majeure Event or by Our failure to comply with Our obligations under the Contract in respect of the Equipment:
(a) delivery of the Equipment shall be deemed to have been completed at 9.00 am on the 10th Business Day following the day on which We notified You that the Equipment was ready;
(b) We shall store the Equipment until delivery takes place, and charge You for all related costs and expenses (including insurance); and
(c) if 30 Business Days after We notified You that the Equipment was ready for delivery You have not accepted delivery of the Equipment, We may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to You for any excess over the price of the Equipment or charge You for any shortfall below the price of the Equipment.
4.4 We may deliver the Equipment 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 You to cancel any other instalment.
5. QUALITY OF EQUIPMENT
5.1 We warrant that on delivery the Equipment shall:
(a) conform in all material respects with its description;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Equipment Act 1979); and
(d) be fit for any purpose held out by Us.
5.2 Subject to clause 5.3, if You give notice in writing within a reasonable time of discovery that some or all of the Equipment do not comply with the warranty set out in clause 5.1 and, at our discretion, You return such Equipment to Our place of business or otherwise permit us reasonable opportunity to inspect the Equipment then We shall, at Our option, repair or replace the defective Equipment.
5.3 We shall not be liable for the Equipment’s failure to comply with the warranty in clause 5.1 if:
(a) the defect arises because You failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;
(b) You alter or repair such Equipment without Our written consent;
(c) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(d) the Equipment differs from its description as a result of changes made to ensure it comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, We shall have no liability to You in respect of the Equipment’s failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Equipment supplied by Us under clause 5.2.
6. TITLE AND RISK
6.1 The risk in the Equipment shall pass to You on completion of delivery but Title to the Equipment shall not pass to You unless the Order specifies that You are purchasing the Equipment and We have received payment in full (in cash or cleared funds) for the Equipment in which case title to the Equipment shall pass at the time of payment.
6.2 Unless and until title to the Equipment has passed to You, You shall:
(a) store the Equipment separately from all other Equipment held by You so that it remains readily identifiable as I Data Com’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
(c) maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price on Our behalf from the date of delivery;
(d) notify Us immediately if it becomes subject to any of the events listed in clause 15.3(b) to clause 15.3(h); and
(e) give Us such information relating to the Equipment as We may require from time to time.
6.3 If before title to the Equipment passes to You, You become subject to any of the events listed in clause 15.3(b) to clause 15.3(h), then, without limiting any other right or remedy We may have Your right to use the Equipment in the ordinary course of Your business ceases immediately and We may at any time require You to deliver up all Equipment in its possession and if You fail to do so promptly, enter any of Your premises or of any third party where the Equipment is stored in order to recover it.
7. SUPPLY OF SERVICES
7.1 We shall use reasonable skill and care to provide the Services to You in accordance with the Order and shall use reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.2 We shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and We shall notify You in any such event.
7.3 Any telephone or other number(s) allocated by Us in connection with the Services shall remain Our property at all times. You are not permitted to transfer such number(s) (whether during the Contract or after termination) without our prior written consent which will not be given until all monies due to us have been paid in full including any reasonable administration charges relating to the transfer.
7.4 We shall be entitled to change the Call Network (and Network Operator) being used to route Your calls and data at any time without notice.
7.5 Due to the nature of the telecommunications networks We are unable to guarantee a fault free service and the quality of the Services is dependent on both the quality of the Call Network to which you are connected and also on the quality of the network to which the person you are calling or transferring data is connected. It is Your responsibility (and not Ours) to ensure that your equipment is in working order to enable the provision of the Services.
7.6 Upon receiving notification of a fault in the Services, we will use reasonable efforts during normal working hours to rectify such faults provided that the fault has arisen from normal and proper use of the Equipment and Services. Where there is a network fault on any lines that we provide to you on any Call Network, we will use appropriate engineers to repair the fault within the timescales of your selected maintenance package. You agree to pay any charges we incur for the repair of any faults affecting your lines arising from your equipment or resulting from your negligence.
7.7 If our Call Network is unavailable for a continuous period of 3 Business Days because there is a technical failure; or it is being tested, or maintained then you will receive a credit in your next periodic invoice which will represent that part of the periodic charges relating to the period of suspension. Any such line rental credit is only payable in respect of the period commencing 48 hours after any fault has been reported to us by you and provided you continue to notify us no less frequently than 48 hourly thereafter until such time as the reported fault has been repaired. You will not be entitled to terminate the Contract in these circumstances. Your sole remedy is as set out in this condition.
8. NGN SERVICES
8.1 Upon receipt of a telephone call addressed to the NGN allocated to You, We will use all reasonable skill and care to deliver it to the telephone number requested by you in the Contract (or as subsequently amended by you) and will use our reasonable endeavours to implement any change to the telephone number to which your calls are being delivered within three Business Days from receipt of a written request from you.
8.2 We may withdraw any NGN from you on thirty days’ notice if it has not been used during a period of ninety consecutive days.
8.3 You will give us not less than thirty days written notice prior to television or other mass market advertising of the NGN allocated to you, and provide us with a forecast of the expected number of calls. We shall use reasonable endeavours to route the forecast calls in full but we shall not be liable for any failure to route the telephone calls to your line provider, or their failure to route such calls to you.
8.4 We accept no responsibility for any costs or losses incurred due to any errors in issuing non-geographic number(s). You are therefore strongly advised to fully test all new non-geographic number(s) and until you have done so successfully if you use the number in advertising, on stationery or give the number to anybody, it is done entirely at your own risk.
8.5 In the event you request us to provide additional routing features or any other services in addition to our standard NGN service, we will use our reasonable endeavours to provide them. Any such additional features or services may be subject to both an initial charge and an additional monthly line rental, and it may be necessary to change the NGN allocated to you to provide the additional features or services you have requested.
8.6 It is unlikely, but we may need to change the NGN or any other number allocated to you from time to time, or to use a different Call Network or Network Operator and we shall be entitled to do so at our discretion and without liability to you. We will let you know if this is going to affect the Services.
9. YOUR OBLIGATIONS
9.1 You shall:
(a) ensure that the terms of the Order are complete and accurate and co-operate with Us in all matters relating to the Services;
(b) prepare Your premises for the supply of the Services and provide Us, our employees, agents, consultants and subcontractors, with access to Your premises, office accommodation and other facilities as reasonably required by Us to provide the Services and maintain the Equipment;
(c) obtain and maintain all necessary licences, permissions and consents which may be required for the Equipment or Services before the date on which the Services are to start;
(d) use the Services and Equipment only for the purposes for which they are supplied and in accordance with the Telecommunications Act 1984 and any relevant licences;
(e) provide Us with such information and materials as We may reasonably require to supply the Services (including details of all relevant addresses, phone and fax numbers), and ensure that such information is accurate in all material respects;
(f) keep and maintain the Equipment and all property of I Data Com at Your premises in safe custody at Your own risk, maintain such property in good condition until returned to Us, and not dispose of or use such property other than in accordance with Our written instructions or authorisation and notify us immediately of any loss or damage to the Equipment and shall indemnify us for any such loss or damage;
(g) ensure your own equipment conforms with all applicable standards (including those required under the Telecommunications Act 1984), is in good working order, and safe to our reasonable satisfaction;
(h) not connect any attachments other than those approved for use with the Services or Equipment under the Telecommunications Act 1984 nor contravene the Telecommunications Act 1984 or any other applicable licences or laws;
(i) not use the Services as means of transmitting any material that is defamatory, offensive, or of an abusive, obscene, or menacing nature.
9.2 If Our performance of any of our obligations in respect of the Services is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation (Customer Default):
(a) We shall without limiting our other rights or remedies have the right to suspend performance of the Services until You remedy the Customer Default, and to rely on the Customer Default to relieve Us from the performance of any of Our obligations to the extent the Customer Default prevents or delays Our performance of any of its obligations;
(b) We shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Our failure or delay to perform any of Our obligations as set out in this clause
(c) You shall reimburse Us on written demand for any costs or losses sustained or incurred by Us arising directly or indirectly from the Customer Default.
9.3 We reserve the right to charge you for any maintenance or repair work we undertake which in our reasonable opinion is a result of you not using the Equipment in accordance with the manufacturers or our instructions or is as a result of damage or abuse by you, or where the Equipment requires reprogramming as a result of abuse or negligence by you.
10.1 If you are purchasing the Equipment the price shall be the price set out in the Order or, if no price is quoted, the price set out in Our published price list as at the date of delivery. Unless otherwise stated the price of the Equipment is exclusive of all costs and charges of packaging, insurance, transport and installation of the Equipment, which shall be paid by You when You pay for the Equipment.
10.2 All work (including installation and programming work and whether carried out in conjunction with the Services or at Your request and whether on the Equipment or on Your own Equipment) carried out by Us at Your premises is chargeable in accordance with our published price list at the time the work is carried out and You acknowledge that:
(a) we normally carry out work by appointment during normal working hours. Occasionally we may ask to work at other times to ensure we provide the best possible service but You are not obliged to provide access outside normal working hours if You do not wish to do so;
(b) if You request that we work outside normal working hours we may charge you a reasonable rate for any work we agree to carry out following any such request; and
(c) You must ensure at Your own cost that a suitable electricity supply, if required, is within 3 metres of the proposed BT network termination point in your premises.
10.3 We will calculate your monthly invoice for the Services using
(a) any minimum monthly charges specified in the Order;
(b) the prices shown in our current price list for the tariff applicable to the Services you are in receipt of, a copy of which is available upon request; and
(c) data recorded by the Network Operators and Call Networks which we use, and not from any data recorded by you. In the event of any dispute, the call data record from the Network Operator or Call Network shall be deemed to be conclusive evidence of that call.
10.4 All calls are charged in increments of 1 second and rounded up to the nearest whole 1p or to the minimum call charge if the cost of the call is below the minimum call charge. If you have selected an inclusive call package, the duration of each call will be rounded up to the next whole minute; only calls to UK numbers beginning 01, 02 or 03 will be included as part of the inclusive call package.
10.5 If we have reasonable cause to believe any of your calls are not being routed on our network where we are providing line rental services, we reserve the right to increase the price we charge you for the line rental services and other standing charges by 20% with immediate effect.
10.6 We reserve the right to increase or decrease our charges and/or introduce new charges from time to time. If we increase any of our charges (except in so far as may be necessary to reflect any increase(s) beyond our reasonable control in the cost to us of the Equipment or Services) such that you will be paying in excess of 10% more for the Services then We will provide You with at least 14 days prior notice, and in such circumstances you may cancel the Service to which the increase relates with immediate effect by notifying us before any increase takes effect. In all other circumstances, you will be notified of any price changes on your next monthly bill.
10.7 We may set a credit limit on Your account from time to time and require You to pay a deposit if You wish the credit limit to be increased.
10.8 Unless you have requested us to provide line rental services, you will still receive a regular bill from your existing Network Operator for your line rental and any calls not routed on our Call Network.
10.9 All amounts payable by You under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) which shall be payable in addition.
11.1 Charges relating to work carried out at Your premises (including installation and programming fees) will be invoiced (and must be paid) prior to the work being carried out.
11.2 Periodic charges for line rental and inclusive call package charges will be invoiced in advance or in arrears as notified to you and call charges not included in inclusive call packages will be invoiced monthly in arrears.
11.3 You shall pay Our invoices in full and in cleared funds within 14 days of the date of the invoice and time for payment shall be of the essence of the Contract.
11.4 We strongly recommend that you complete a direct debit instruction. We will consider accepting payment by other methods but unless agreed in the Order We will charge an administration fee of 5% of the value of any invoice not paid by direct debit. In the event that a direct debit request is rejected a £10 administration charge will be added to Your next monthly invoice.
11.5 If we have reason to believe any amount due from you may not be paid, or if your call usage in any month is materially greater than usual, We may ask for a reasonable deposit to be used as security. Should you refuse to pay a reasonable deposit within the timeframe requested we may withdraw access to the Services.
11.6 If any service is disconnected due to non-payment, you will be responsible for any disconnection charges. Reconnection will be at our discretion and you will be responsible for all applicable reconnection charges
11.7 We may charge interest calculated daily at a rate of 5% above the then current base rate of Lloyds TSB Bank plc on any amount you fail to pay by the due date whether before judgement or after until we receive payment of that amount. You agree to pay any fees or expenses reasonably incurred by us in collecting or attempting to collect any amount owed by you.
11.8 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. We may, without limiting its other rights or remedies, set off any amount owing to Us by You against any amount payable by Us to You and may also use any deposit paid by You to settle amounts due to Us.
12. CASH BACK & REBATES
12.1 Where You purchase Goods and/or Services with a cash back or rebate incentive then, subject always to You fully complying with any conditions applicable to such cash back or rebate notified to You in writing, You will receive payment of the agreed cash back or rebate on a basis agreed by Us. In the event that You fail to fully comply with any conditions applicable to the cash back or rebate or that You terminate the Contract other than pursuant to conditions 15.2 or 15.3 then Your entitlement to the cash back or rebate will cease and You will be liable to re-pay to Us any cash back or rebates already paid to You.
13. LIMITATION OF LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
13.1 Nothing in these Conditions shall limit or exclude Our liability for:
(a) death or personal injury caused by Our negligence, or the negligence of Our employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Equipment and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Equipment Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
13.2 Subject to clause 13.1:
(a) We shall under no circumstances whatever be liable to You, 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) Our liability to You in relation to a Call Network fault shall be limited to the amount of compensation we receive from the relevant Network Operator in respect of the impact of such fault on You.
(c) Our total liability to You 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 amount paid for the Equipment and Services over the preceding 12 months of the Contract.
13.3 The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 and the terms implied by sections 3 to 5 of the Supply of Equipment and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.4 This clause 12 shall survive termination of the Contract.
14.1 Without prejudice to our other rights and remedies, we can suspend the provision of the Services immediately without notice if:
(a) we believe the Equipment (or Your Equipment) is being used in an unauthorised way or for criminal activities or for the transmission of any material which is of a defamatory, offensive, abusive, obscene or of menacing nature; or
(b) you commit a substantive breach of the Contract fail to pay any of our proper charges when due or we have reason to believe that any amount due from you may not be paid; or
(c) your credit limit is exceeded or your direct debit instruction is refused or cancelled; or
(d) you do anything (or allow anything to be done) which we think may damage or affect the operation of the Networks.
14.2 Following suspension as a result of the above the Contract remains in force and You remain liable for all periodic charges including applicable line rental charges due during any period of suspension. In certain of the above circumstances, all outbound calls may be routed directly to our overdue account team in which case you will hear an automated announcement advising you of the reason why your call could not be completed as dialled. If you have arranged call forwarding on your line, then we shall have no liability for any loss (whether direct, indirect or consequential) or embarrassment caused to you in the event that someone calling your number also hears this message when their call is forwarded.
15. DURATION & TERMINATION
15.1 Each Service is subject to the Minimum Term. The Minimum Term applies independently to each line and/or telephone number in respect of which the Services are being provided and/or items of Equipment covered by the Contract. Once the Minimum Term has been completed, this Contract will automatically extend for successive 24 month periods (Extended Term) at the end of the Minimum Term and at the end of each Extended Term until terminated in accordance with condition below.
15.2 You may end the Contract for any line and/or telephone number at the end of the Minimum Term or any Extended Term for that line/number by giving us not less than 90 days written notice (such notice to expire at the end of the Minimum Term or the relevant Extended Term), and paying any outstanding line rental, standing charge(s) and call usage charges. Under such circumstances we will not make any charges for cancellation. For the avoidance of doubt the Contract will remain in place for any other line or telephone number which has not completed its Minimum Term or any Extended Term or in relation to which you have not given notice in accordance with this clause. You will be responsible for any costs you incur in reprogramming your equipment, the cost of any calls made by you on Our Network after the end of the Contract howsoever arising and the cost of returning any Equipment which We supplied to you under the Contract.
15.3 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract or fails to hold any applicable licences relating to the supply and use of the Equipment and/or Services and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;(b) the other party 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 or limited liability partnership) 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; or 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) 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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation or is the subject of a bankruptcy petition or order
(e) a creditor or encumbrancer of the other party 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) 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) or the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver; or 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;
(g) 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 15.3(b) to clause 15.3(f) (inclusive);
(h) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business or, in the case of the Customer, its financial position deteriorates to such an extent that in I Data Com’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15.4 On termination of the Contract for any reason:
(a) You shall immediately pay to Us all of Our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, We shall submit an invoice, which shall be payable by You immediately on receipt;
(b) Save where You are entitled to terminate the Contract pursuant to condition 15.3 above You shall
(i) reimburse Us for all costs incurred by us as a result of the termination in transferring your Services to another service provider;
(ii) pay Us all fixed periodic charges which would become due for each Service from the date of termination until the later of the end of the Minimum Term for that Service or the next anniversary date of that Service;
(iii) pay Us the sum of £25.00 plus VAT for each month from the date of termination to the later of the end of the Minimum Term or the next anniversary date for each Service; and
(iv) (save where You terminate the Contract strictly in accordance with condition 15.2) be liable to re-pay to Us any cash back or rebate which has been paid to You under the Contract.
(c) You shall return all of the Equipment to Us which have not been fully paid for. If You fail to do so, then We may enter Your premises and take possession of it. Until it has been returned, You shall be solely responsible for the Equipment’s safe keeping and will not use it for any purpose not connected with this Contract;
(d) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(e) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
16. FORCE MAJEURE
16.1 For the purposes of this Contract, Force Majeure Event means an event beyond Our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving Our workforce or that of any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
16.2 We shall not be liable to You as a result of any delay or failure to perform Our obligations under this Contract as a result of a Force Majeure Event and, for the avoidance of doubt, if You choose to use an alternative Network Operator or Call Network then we will not be responsible for any costs incurred by you in relation to such decision.
16.3 If the Force Majeure Event prevents Us from providing any of the Services and/or Equipment for more than 13 weeks, We shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to You.
17.1 Assignment and other dealings.
(a) We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) You shall not, without Our prior written consent, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with this 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 or sent by prepaid first-class post or other next working day delivery service, or by 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 above; if sent by pre-paid first class post or other next working day delivery service, 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.
(d) If you telephone us, or if we telephone you, your call may be monitored or recorded.
17.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. Failing that it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
17.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
17.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
17.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by a director of I Data Com.
17.8 Use of Information. Your data will be securely held and will not be disclosed to third parties for their marketing purposes. We may however send you information about offers, products or other services we provide, or from other organisations which we believe may be of interest to you. We may contact you in future to give you information about any of our services, which we believe may save you money unless you have informed us that you prefer not to receive this information. We may use the information held by credit reference agencies to help make credit decisions or for fraud prevention. We may disclose information about You and Your account to credit reference agencies who may share this information with their customers. In addition, we may pass these details to other people in relation to enquiries concerning the prevention and detection of crime or the apprehension or prosecution of offenders or as may be required by law or legal proceedings, and unless you tell us otherwise, we may disclose your name, address and mobile phone number to third parties in order for them to operate a directory service although we cannot be held responsible for the failure of any directory service to hold or include any of Your numbers.
17.9 Governing law & Jurisdiction. 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. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims). Notwithstanding the foregoing You may have the right to refer certain disputes to arbitration in accordance with arbitration procedures set up by the Network Operator under its licence, details of which are available from us upon request.