1 - Definitions
- 1.1 - In these conditions (unless the context otherwise requires):
- “Acts” means the Telecommunications Act 1984 and the Communications Act 2003 and any amendments, modifications, re- enactments or replacements of the Acts that may be made from time to time;
- “Contract” means the contract between you and us for the provision of the Services;
- “Orchid VoIP Network” means services provided to you on our network or the public switched telecommunications network; “Recurring Charges” includes line and data circuit rentals, service fees and any other fees which are charged monthly as part of the Service;
- “Services” means the telecommunications services to be supplied by us pursuant to the Contract;
- “we”, “us” and “our” means Orchid Telecom Ltd trading as Orchid VoIP Telecom Services and its successors in title and assigns from time to time; and
- “you” and “your” means the individual, partnership, limited company or other legal entity with whom the Contract is made, its successors in title and assigns.
- 1.2 - Words in the singular shall include the plural and vice versa and references to one gender shall include the others.
- 1.3 - The headings in these conditions are intended for reference only and shall not affect their construction.
2 - General
- 2.1 - These conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication you send to us and the provisions of these conditions shall prevail unless expressly varied in writing and signed by a director on our behalf. Where we specifically agree terms with you in writing those terms shall prevail over any conflicting terms in these conditions.
- 2.2 - Any waiver of our rights under these conditions applies only to the circumstances for which it is given. Our failure or delay in exercising any right or remedy under these conditions or at law shall not constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise.
- 2.3 - If any provision of these conditions is found to be invalid, illegal or unenforceable, that provision shall be deemed not to form part of these conditions, and the validity and enforceability of the other provisions shall not be affected.
3 - The Services
- 3.1 - We undertake to provide you with the Services in accordance with these conditions using reasonable skill and care. Except as otherwise provided in these conditions all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- 3.2 - If appropriate, you authorise us, our agents, employees or other authorised personnel, to reprogram and/or install access equipment on your premises, in order to provide the Services to you.
- 3.3 - If we require, you will give your consent to us obtaining details of any incompatible equipment from your current telecoms service providers or the owners of such equipment.
- 3.4 - Unless otherwise agreed in writing, equipment we install at your premises shall remain our property and you shall not obtain any rights or title to it. You are responsible for ensuring that it is returned to us in good condition. If it becomes damaged or unusable (unless we damaged it or it becomes faulty) you agree to meet our reasonable costs for replacement or repair of the equipment.
- All times, dates and periods given for performance of the Services are given in good faith and are estimates only and we shall not be liable for failure to meet such estimates.
4 - Length of the Contract
- 4.1 - The Contract shall come into force on and with effect from the date of written acceptance by us of your order or our commencing to supply the Services to you (whichever is earlier) (“the Commencement Date”) and shall continue (subject to early termination under these conditions) until the expiry of 1 Month (“Minimum Contract Period”). Thereafter, the Contract shall automatically renew for subsequent periods of 1 months (“Renewal Period”) at a time, unless you give us written notice terminating the Contract no less than 30 days prior to expiry of the Minimum Contract Period or then current Renewal Period. You may terminate the Contract early on payment of the early termination fee set out in condition 4.2.
- 4.2 - The early termination fee is an amount equal to: (a) the total amount of Recurring Charges that would be paid until the end of the Minimum Contract Period or then current Renewal Period.
5 - Your use of the Services
- 5.1 You acknowledge that you shall only have a licence to use for the duration of the Contract any UK telephone number(s) thatwe may allocate to you. Further, you acknowledge that you do not acquire any other legal, equitable or other rights in relation to any such telephone number(s). You are not entitled to sell, transfer or assign any telephone number(s) allocated by us (unless such transfer is pursuant to condition 5.2) and neither are you permitted to register them as trade marks. Upon termination of the Contract, for whatever reason, your licence to use such telephone number(s) shall automatically terminate and thereafter you shall cease to use such telephone number(s) (unless they are subject to a transfer under condition 5.2).
- 5.2 You may request (in writing) us to port the UK telephone number that is allocated to you. Unless you owe us any money, we will process the transfer (provided we are able to do so) to your new telecommunications provider as soon as reasonably practicable. If you owe us any money, we will not process your request until you have paid us all the money you owe us. Our charge for processing the transfer will be £50 in respect of the first telephone number plus £10 for each additional telephone number which is part of the same request.
- 5.3 You undertake not to contravene the Acts or any other relevant regulations or licenses regarding the provision and use of the Services particularly, and telecommunications services generally.
- 5.4 You shall ensure that your telecommunications equipment shall at all times conform to the relevant standard or standards (if any) for the time being designated under the Acts and we shall not be under any obligation to connect or keep connected any of your equipment if it does not conform or if in our reasonable opinion it is liable to cause death, personal injury or damage to property or impair the quality of any the Services, or any other services, we provide or to put us in breach of our obligations to any third party. You shall also comply with all relevant statutes, regulations or other legislation in force from time to time.
- 5.5 You undertake to use the Services in accordance with the Acts, and any licence granted thereunder. You further undertake not to use the Services:
- (a) as a means of communication for a purpose other than that for which the Services are provided;
- (b) for the transmission of any material which is defamatory, offensive or of an abusive or obscene or menacing character oris of a nature which if transmitted would constitute a criminal offence or would infringe the rights of any third party including but not limited to contractual rights and intellectual property rights; or
- (c) for any purpose which we may notify to you from time to time by reason of any relevant legislation which comes intoforce.
- 5.6 You shall indemnify us, and keep us indemnified, from all losses, fines, damages, claims, costs and expenses suffered or incurred by us arising from or in connection with your use of the Services in breach of the provisions of this condition 5 or in breach of any other provision of the Contract.
6 - Our access to your premises and provision of information by you to us
- 6.1 To enable us to perform our obligations under the Contract you shall permit or procure permission for us, our agents, employees and any other authorised persons to have access to your premises (and any equipment located there) and shall provide such reasonable assistance and information as we shall request from time to time. Access will usually be arranged by appointment.
- 6.2 If you request maintenance or repair work which is found to be unnecessary or you report a fault with our Service, but the fault turns out to be with your equipment or the equipment of a third party, you may be charged for that work and the reasonable costs we incurred in doing that work or investigating that fault. Where possible, we will give you notice that work is considered unnecessary prior to the completion of the work.
7 - Suspension of the Service by us
- 7.1 We may at our sole discretion upon giving you written notice elect to immediately suspend the provision of the Services to you until further notice (without compensation) if:
- (a) you are in breach of any term of the Contract;
- (b) we are obliged to comply with an order, instruction or request of the UK Government, an emergency servicesorganisation or other competent administrative authority; or
- (c) you have failed to pay when due any amounts due to us under the Contract.
- 7.2 Where we suspend the Services as a consequence of your breach, you shall reimburse us for all reasonable costs and expenses we incur implementing such suspension or recommencing the provision of the Services, or both (such costs are typically a couple of hours of developer time).
- 7.3 If we exercise our right to suspend the Services this shall not restrict our right to terminate the Contract.
8 - Our liability and limitation
- 8.28.1 Nothing in these conditions excludes or restricts our liability for:
- (a) death or personal injury resulting from our negligence;
- (b) fraud or fraudulent misrepresentation;
- (c) breach of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982; or
- (d) any other matter for which liability cannot be excluded or restricted under law.
- 8.2 In the event that the Services fail and your calls are diverted to another carrier, we shall not be obliged to pay any charges incurred by you with that carrier.
- 8.3 Nothing in these conditions shall impose any liability upon us in respect of our non-performance or the non-performance of the Services in accordance with the Contract where such non-performance is as a consequence, whether directly or indirectly, of your acts, omissions, negligence or default.
- 8.4 Subject to condition 8.1, we shall not be liable to you for loss of profit, loss of revenue, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of contract, loss of use, loss or corruption of data or information (in each case whether the same is direct, indirect or consequential) or any special losses, costs, damages, charges or expenses.
- 8.5 Subject to condition 8.1, our total liability in contract, tort (including negligence or breach of statutory duty)misrepresentation, restitution or otherwise to you arising in connection with the performance, or contemplated performance, of the Contract, shall be for direct loss only and shall be limited to, and in no circumstances shall exceed, a sum equal to one (1) month’s billing for the Services by us to you based on the average billing for the Services over the previous three (3) months or, if the Services commenced within three (3) months of the date of the claim concerned, since the commencement of the Services.
9 - Charges and payment
- 9.1 Unless otherwise agreed by a director of our company in writing, you agree to pay for the Services by direct debit mandate within 14 days of the date of our bill, such bill to be rendered once in each calendar month. If we agree with you to accept payment by cheque we reserve the right to make a reasonable monthly handling charge to defray our additional costs.
- 9.2 We reserve the right to terminate your use of the Services without notice upon rejection of any direct debit mandate or payment or if your bank (or its agent or affiliate) seeks return of payments previously made to us, or any of our agents, when we, in good faith, believe you are liable for the charges. Such rights are in addition to and not in lieu of any other legal rights or remedies available to us.
- 9.3 You shall pay the price for the Services as set out in our quotation or tariff. We shall be entitled to decrease our prices at any time, such decrease to apply to all Services provided after the date of the decrease and to be reflected in our next bill. We shall be entitled to increase our charges at any time with effect from the start of a new monthly billing period provided that we notify you of any such increase prior to the start of the new monthly billing period, such increase shall take effect at the beginning of the new monthly billing period.
- 9.4 We shall prepare and send bills for telephone call charges each calendar month in arrears or in such other form and manner as shall be determined by us. Call charges payable shall be calculated solely by reference to data recorded or logged by us whether or not the Services have been used by or with Your authority and irrespective of any fraud and such data shall, in the absence of manifest error, be final and binding.
- 9.5 We shall bill you monthly in advance for recurring charges and any other network or ancillary services for which you have contracted with us.
- 9.6 The time of payment shall be of the essence of the Contract.
- 9.7 Without prejudice to any other rights we may have, we are entitled to claim interest on overdue invoices under the LatePayment of Commercial Debts (Interest) Act 1998.
- 9.8 If it is necessary for us to send correspondence to you in order to obtain your payment for overdue accounts, we reserve the right make a charge of £20 per letter sent to you.
- 9.9 All sums referred to in the Contract are exclusive of value added tax and any other taxes of similar nature which may from time to time be introduced which shall (if applicable) be charged and are payable by you in the same manner as the usage charges.
- 9.10 The price for the Services shall be due in full to us in accordance with the terms of the Contract and you shall not be entitled to exercise any set-off, lien or any other similar right or claim.
10 - Termination of the Contract
- 10.1 Notwithstanding any other provision of these conditions, we (without prejudice to our other rights) may terminate the Contract with immediate effect by giving you notice in writing, in the event that:
- (a) you are in breach of any provision of the Contract and (where such breach is remediable) you fail to remedy that breach within 14 days of a written notice specifying the breach;
- (b) you are subject to any form of bankruptcy or insolvency proceedings, including, taking steps towards bankruptcy, becoming insolvent, making any composition or arrangement with your creditors or making an assignment for their benefit, or having any execution, distress or seizure of your assets;
- (c) any licence under which you have the right to run your telecommunication system and connect it to our system is revoked, amended or otherwise ceases to be valid; or
- (d) you fail to make any payment when it becomes due to us.
- 10.2 You shall be deemed to have terminated the Contract if during the period of the Contract you switch all or part of your call traffic or line rental provision or Services from us to another telecoms provider.
- 10.3 On termination of the Contract for any reason you must pay us any outstanding charges for the Services up to the date of termination plus any other amounts that may apply.
11 - Matters beyond reasonable control
- 11.1 Neither we nor you shall be liable to the other for any loss or damage which may be suffered by the other due to any cause beyond its reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire strike, lock-out, trade dispute or labour disturbances, any act or omission of Government, highways authorities, other public telecommunication operators or other competent authority, or production or supply services of third parties.
12 - Representations
- 12.1 No statement, description, information, warranty, condition or recommendation contained in a catalogue, price list, advertisement or communication or made verbally by any of our agents or employees shall be construed to enlarge, vary or override in any way any of these conditions.
13 - Assignment
- 13.1 You shall not assign or delegate or otherwise deal with all or any of your rights or obligations under the Contract without our prior written consent.
14 - Data protection
- 14.1 Both parties agree to comply with their respective obligations under the Data Protection Act 1998 and related regulations and obtain and maintain all relevant notifications and consents.
- 14.2 You acknowledge and agree that we may put your name and other details obtained from you into a computerised directory for internal use and for the purposes of providing the Services to you.
15 - Miscellaneous
- 15.1 The Contract represents the entire understanding between you and us in relation to the subject matter hereof and supersedes all other agreements and representations made by either you or us, whether oral or written.
- 15.2 Failure by either you or us to exercise or enforce any right conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof of any other right on any later occasion.
- 15.3 All equipment which is supplied by us will remain our property until paid for in full.
- 15.4 Any notice, bill or other document which may be given by either you or us under these conditions shall be deemed to have been duly given if left at or sent by first class post to the other’s usual or last known place of business and such notice shall be deemed to be served immediately if left at the address for notice or 48 hours after posting if posted as aforesaid.
- 15.5 The Contract shall be governed by and construed and interpreted in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.
VoIP Telecom Services and Orchid VoIP are trading names and references used by Orchid Telecom Ltd Who’s registered office is Marray & McIntyre Chartered Accountants, Hawthorn House, Oakley Hay, Northampton. NN18 9NF with a Companies House registration Number of 49273145 And who are a registered Communications Provider with OfCom.