This agreement represents the entire agreement between Cranberry Communications Ltd and the Customer named on the order form overleaf for the provision of new services, including (but not limited to) lines, calls, data products and associated services. The Customer hereby confirms that the agreement cannot be modified by its own terms and conditions of business, including any imposed by the Customer’s acceptance or purchase order. The agreement can be modified from time to time by the Service Provider giving the Customer not less than 28 days’ notice; such notice will be given in writing to the Customer.
1. Definitions
The meanings of various terms set out in the agreement are: -
· “Act” the Telecommunications Act 1984 and any amendments to the Act which may be made from time to time.
· “Agreement” the agreement between Cranberry Communications Ltd and the Customer for the provision of products and services.
· “Carrier” the company that provides services resold to the customer.
· “Connection Date” the date when the Service Provider agrees to commence the supply of products and services.
· “Order Form” the attached Customer order form setting out details of the products and services required.
· “Service Provider” Cranberry Communications Ltd, together with its employees and agents (referred to as “We”, “Us” and “Our”).
· “Customer” The person/company/business with whom the contract is made/specified on the order form (referred to as “You” and “Your”).
· “Customer Details” the service numbers of lines to be connected to the Network Services.
2. General
2.1 These conditions shall apply to the Contract to the exclusion of any terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by you or by Us and the provisions of these conditions shall prevail unless expressly varied in writing and signed by a director on Our behalf. Where We specify terms with you in writing, those terms shall prevail over any conflicting terms in these conditions.
2.2 Any concession made, or latitude allowed by Us to you shall not affect Our strict rights under the Contract.
2.3 If in any particular case any of these conditions shall be or be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
3. Provision of products/services
3.1 Cranberry shall provide or procure the provision of the products/services to the Customer in accordance with the details of the Order Form and these conditions. The Customer acknowledges that it is technically impracticable to provide a fault free service and Cranberry does not undertake to do so.
3.2 If appropriate, you authorise Us, Our agents, Our employees or other authorised personnel, to reprogram and/or install access equipment, in order to provide the Services.
3.3 All times, dates and periods given for performance of the Services are given in good faith but without any responsibility on Our part.
3.4 Cranberry Communications Ltd shall have the right to refuse to connect any Customer
3.5 The provision of the data product/service to the Customer will be subject to the characteristics of the Customers access connection. It may be deemed impossible to supply the requested data product/service over the Customers access connection. Where this is the case Cranberry will immediately terminate this agreement, Cranberry will not be liable to the Customer for such termination.
3.6 The provision of telephony products/services will be subject to availability of such products. It may be deemed impossible to supply the requested product/service. Where this is the case Cranberry will immediately terminate this agreement. Cranberry will not be liable for such termination.
3.7 The customer acknowledges that during the installation of the equipment for the provision of the data service the Customer access
Connection may suffer a temporary loss of telephone service, and /or interference to any other Access Connection services, which shall be reinstated following installation. Cranberry will not be liable for any loss, interruption or interference during installation.
3.8 Occasionally Cranberry and/or the carrier may have to interrupt the Service or change the technical specification of the Service for operational reasons (such as maintenance or Service upgrades) or because of an emergency. In these circumstances, where possible, Cranberry will give notice to the Customer of any such interruption however; the Customer shall have no claim against Cranberry for any such interruption.
3.9 Except as otherwise expressly permitted under this Agreement, the Customer may not:
(a) modify the Service without Cranberry’s prior written consent;
(b) redistribute, copy or use the Service, or transfer rights to the use of the Service to any third party;
(c) disclose details of the Service, to any third party without Cranberry’s prior written consent;
(d) use the Service except in conjunction with Cranberry’s recommended operating guidelines;
3.10 Cranberry shall use its reasonable endeavours to comply with the Customers reasonable requests in respect of installation but Cranberry and/ or the carrier’s decision on the routing of cables and wires and the positioning of outlets and other apparatus constituting the equipment shall be final and
binding.
3.11 Cranberry shall use all reasonable endeavours to provide and install or procure the provision and installation of the equipment at the site so that the data product/service can be provided on or before any installation date specified or agreed to by Cranberry. Any installation date is an estimate only and Cranberry shall not be liable for any failure to meet such installation date.
3.12 Installation of the service may be subject to a survey carried out by the carrier and the service may not be provided where the survey carried out is incomplete or unsatisfactory.
3.13 The Customer accepts that the service is rate adaptive and will run at the most reliable speed available. Speed can be affected by external conditions.
3.14 The Customer accepts that peak and sustained throughput rates may be reduced by contention within the network, other components sourced by the Customer to provide the service, end user speed control systems and the internet.
4 Length of the Contract
4.1 The contract for each product/service shall come into force on and with effect from the date of connection and shall continue for the minimum duration stated on this order form (subject to the other provisions for termination contained in these conditions). In the event that no minimum term is specified a minimum term of 24 months commencing from the date of connection shall apply. Thereafter the agreement shall continue until either We or You give 90 days’ written notice to the other and such notice may be given at any time.
5. Your use of the Services
5.1 You undertake not to contravene the Act or any other relevant regulations or licences regarding the provision and use of the data products and services or telecommunications services.
5.2 You shall ensure that Your associated apparatus shall at all times conform to the relevant standard or standards (if any) for the time being designated under the Act and We shall not be under any obligation to connect or keep connected any of your apparatus if it does not conform or if in Our reasonable option it is liable to cause death, personal injury or damage to property or to impair the quality of any services provided by Us 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.
5.3 You undertake to use the Services in accordance with the Act, and any licence granted thereunder. You further undertake not to use the
Services:
(a) as a means of communications for a purpose other than that for which the services are provided; or
(b) for the transmission of any material which is defamatory, offensive or of an abusive, obscene or menacing character, or is of a nature which if transmitted would constitute a criminal offence or which infringes 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 into force.
5.4 You shall indemnify Us 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 contravention of the provisions of this condition 5 or in breach of any other provision of the Contract.
6. Allocation and use of Telephone Numbers
6.1 In the event that the Service Provider allocates any telephone numbers to the Customer, for the purpose of providing the Services, the Customer acknowledges that it shall not acquire any legal, equitable or proprietorial right to any such numbers. The Service Provider, using reasonable endeavours to give notice to You, shall be entitled to withdraw or change any telephone number or group of numbers at any point. We shall not be liable for any costs, inconvenience or other losses (including without limitation marketing and stationery costs) incurred by the End User as a result of any change or withdrawal as described in this clause 6.1
6.2 For the avoidance of doubt, any and all intellectual property rights in any such telephone number shall at all times, as between the Service
Provider and the Customer remain vested in the Service Provider.
7. Our Access to Your Premises and Provision of information by You to Us
7.1 To enable Us to perform Our obligations under the Contract:
(a) You shall permit or procure permission for Us, our agents, employees and any other persons authorised by Us to have access to Your premises and shall provide such reasonable assistance and information as We shall request from time to time;
(b) We will normally carry out work by appointment and during normal working hours but may request that You provide Us access to Your premises at other times, but such requests shall not oblige You to provide such access.
(c) at Your request, we may agree to work outside normal working hours and You shall pay our usual charges (details available on request) for complying with such a request.
7.2 You shall permit Us to request and manage as a whole any transactions to connect you to C.P.S. (carrier pre-select) and sign on your behalf, if necessary, any forms that are to be submitted to British Telecom in order to use this service.
8. Suspension of Service by Us
8.1 We may at Our sole discretion without notice suspend forthwith provision of the Services until further notice without compensation in the event that:
(a) We are entitled to terminate this agreement, or
(b) We are obliged to comply with an order, instruction or request of the UK Government, an emergency services organisation, the provision of telecommunications services or the establishment of networks or any information provided across them or other competent
administrative authority.
(c) We need to carry out any emergency works to the network or any equipment installed at Your premises by Us for the purpose of providing the services.
(d) The Customer is in serious breach of the terms of this agreement. Failure to pay the Service Provider by the due date is considered to be a serious breach of the conditions of this agreement.
(e) The Service Provider reasonably believes that the products/services are being used fraudulently.
(f) The Service Provider reasonably believes that the products/services are being used for the purposes set out in section 5.3(b) above.
8.2 Where any suspension of the Services is implemented as a consequence of Your breach, fault or omission (but not otherwise), You shall
reimburse Us for all costs and expenses incurred by Our implementation of such suspension and/or the recommencement of the provision of the
Services as appropriate.
8.3 If We exercise Our right to suspend the Services this shall not restrict Our right to terminate the Contract.
9. Liability
9.1 Nothing in this agreement shall restrict the Service Provider’s liability for death or personal injury resulting from the negligence of the Service
Provider or of its employees while performing their duties on behalf of the Service Provider.
9.2 In the event that any product/service fails we shall not be obliged to pay any charges incurred by You. In the event that such a failure results in Your calls being diverted to another carrier, We shall not be obliged to pay any charges incurred by you with that carrier. We shall only be entitled to charge Our usage charges for calls which you make through to Us pursuant to the Contract.
9.3 Nothing in these conditions shall impose any liability upon Us in respect of any non-performance or Services which are not performed in accordance with the Contract arising out of Your own acts, omissions, negligence of default.
9.4 The Service Provider shall not in any event be liable to the Customer or any third party for any indirect, consequential or incidental loss or other damages howsoever arising, or for any loss of revenue, cost savings or profit. The Customer shall indemnify the Service Provider against any reasonable claims and expenses arising out of any situation.
9.5 The Service Provider shall not be liable to the Customer for any delay in either providing a Connection Date to the Customer or any other reason for delay in connection. In the event that the Service Provider’s service fails to operate and the Customer’s traffic is diverted to another carrier, the Service Provider will not be responsible for that carrier’s charges.
9.6 The Customer shall indemnify the Service Provider against all reasonable liabilities, claims, damages, losses and expenses arising from the use by the Customer of the products/services in breach of this agreement.
9.7 It is the Customer’s responsibility to ensure the security of their equipment. Cranberry Communications does not accept liability for breaches of the Customers own telephone system, nor any call charges that might arise from such a breach.
10. Charges and Payments
10.1 Unless otherwise agreed, You agree to pay for the Services by direct debit.
10.1.1 The direct debit will usually be taken on the 15th of the month or the next working day.
10.2 You shall pay the price for the services as set out in this order form. We shall be entitled to increase or decrease the prices subsequent to the placing of the Order in the event that the prices charged to Cranberry by its supplier or sub-contractor are varied. Any such price variation shall be restricted to the price variation actually suffered or enjoyed by Cranberry.
10.3 We shall prepare and send invoices for usage charges each calendar month in arrears or in such other form and manner as shall be agreed with You. Usage charges payable shall be calculated by reference to data recorded or logged by Us and not be reference to any data recorded or logged by You and such data shall, in the absence of manifest error, be final and binding.
10.4 The Customer will receive their invoice by email. Cranberry Communications Ltd can provide a printed bill or CDR (call detail record) where applicable – cost on application, as per Our commitment to reducing paper usage and protecting Our environment.
10.5 Without prejudice to any other rights it may have, We are entitled (both before and after any judgement) to charge daily interest on amounts outstanding 14 days after the date of the Our invoice until payment in full is received, at a rate equal to 4 per cent per annum above the National Westminster Bank plc base lending rate as current from time to time. Interest shall continue to accrue notwithstanding termination of the Contract.
10.6 All sums referred to in the Contract are stated exclusive of Value Added Tax and any other taxes of a similar nature which may from time to time be introduced which shall (if applicable) be charged by Us and payable by You in the same manner as the usage charges.
10.7 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.
10.8 Where a direct debit mandate is cancelled without giving 14 days written notice the service provider shall be entitled to add an administration fee of £50.00 to the Customer’s account at its discretion.
11. Termination of the Contract
11.1 Notwithstanding any other provision of these conditions, either We or You (without prejudice to its other rights) may terminate the agreement by giving 90 days written notice to the service provider in advance of the anniversary of the commencement of the initial contract term stated in the contract and taking into account the following:
(a) This agreement may be terminated immediately by the Service Provider if there is a significant breach of any condition or persistent breach of the terms of this agreement by the Customer, such notice of termination is to be given in writing. In cases where the Service Provider believes that the breach is capable of remedy then a period of 7 days may be given to remedy the breach.
(b) Either party may terminate the agreement immediately in the event that a receiver, liquidator or trustee in bankruptcy is appointed in respect of either party for the whole or part of their business, or where either party enters into an arrangement with its creditors, or where any proceedings to wind up either parties business have commenced.
(c) The Service Provider may terminate the agreement immediately in the event that any licence required to operate Network Services is revoked, significantly amended or ceases to be valid.
d) The Customer may cancel this agreement prior to the Connection Date by giving written notice, but will be required to pay any reasonable charges that the Service Provider has incurred to date.
(e) Where the Customer terminates this agreement before the end of the minimum contract period or fails to provide notice of cancellation as at 11.1(a) for any subsequent annual term, the Customer agrees to pay the service provider compensation equivalent to the whole of the rental charges to the end of the minimum contract period or extension thereof and 35% of the normal call charges and other ad-hoc charges. The normal monthly charges shall be calculated using the average rate from the last three complete months spend.
(f) The Customer may terminate the agreement immediately upon the giving of notice in writing if there is any material or persistent breach of the agreement by the service provider which is within the service provider’s ability to control that has not within the period of seven working
days from notification been rectified.
11.3 On termination of the Contract for any reason You must pay Us any outstanding usage charges for Your usage of the Services up to the date of termination.
12. Matters beyond reasonable control
12.1 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. The following is a non-exhaustive list of examples of reasons outside of the control of the parties; Act of God, failure or shortage of power supplies, internet failure, computer viruses, flood, drought, inclement weather, lightning strike, fire, strike or other labour dispute, any Act or omission of Central or Local Government.
13. No liability for loss of profits and data
13.1 We shall not be liable for any costs, claims, damages or expenses arising out of Our negligence or Our breach of contract or statutory duty calculated by reference to Your loss or profits or income or production or by reference to the accrual of any such costs, claims, damages or expenses on a time basis.
13.2 We shall not be liable to You for any costs, claims, damages, or expenses arising as a result of our negligence or for our breach of contractor statutory duty calculated by reference to any loss of anticipated savings or profits whatsoever or for the corruption or destruction of data.
14. Limitation of liability
14.1 The Service Provider’s liability in contract, tort or otherwise shall be limited to and in no circumstances shall exceed a sum equal to one month’s billing for the Services by Us to You based on the average billing for the Services by Us to You over the previous 3 months or a sum equal to one month’s actual billing if the contract commenced within 3 months of the date of the claim concerned.
15. Representations
15.1 No statement, description, information, warranty, condition or recommendation contained in any 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.
16. Hardware
16.1 Hardware may be provided by the Carrier or Service Provider on a rental or loan basis in order to successfully provide Your order. This equipment remains the property of the company that provided it to You, and may not be disposed of, sold or given to any 3rd party without the express permission in writing of the party that supplied it to You.
16.2 When the Agreement is terminated it is Your obligation to return any such equipment within 14 days of the termination date to either the Carrier or to Cranberry as appropriate. Carrier equipment sent to Cranberry Communications will result in a shipping fee being levied against you.
16.3 Failure to return any equipment within the 14 days specified above will result in an invoice for the price of a replacement item (or the closest available alternative at the time) being raised against You by Cranberry Communications.
17. Assignment and sub-contracting
17.1 We may assign the Contract with You or sub-contract the whole or any part of the performance of the Services to any person, firm or company without Your prior written consent.
17.2 You shall not assign or delegate or otherwise deal with all or any of its rights or obligations under the Contract without Our prior written consent.
18. Emergency Services
18.1 The customer acknowledges and agrees that assuming there is sufficient power and broadband connectivity to enable the Service Provider to connect Your calls to the UK public emergency services, the Services may not be able to provide Your telephone number(s) and location details to the operator. This is dependent on the type of technology utilised.
18.2 In order to comply with UK emergency services regulatory obligations applicable to VoIP services, the Customer acknowledges and agrees to provide the Service Provider with the location of any handsets, that are connected other than at the Customer address stated in this Order Form.
19. General
19.1 This agreement shall be governed by and interpreted in accordance with English Law and the parties hereby submit to the jurisdiction of the
English Courts.
19.2 Implied Terms shall be excluded to the fullest extent permitted by law under any and all circumstances.
19.3 The signature of the Customer on this order will be deemed to be the authorised signatory.
19.4 Failure of either party to exercise or enforce any right within this agreement shall not be deemed to be a waiver of such right.
19.5 The contract will not become binding until the Customer becomes connected to Cranberry Communications Ltd
19.6 All prices quoted on this form are exclusive of VAT. VAT at the current rate will be added to any invoice or payment that is deducted.