Pipex Homecall Businesscall terms and conditions
1 Definitions
1.1 In these terms and conditions, the following words shall, unless the context requires otherwise, have the following meanings:
"Agreement" |
means these conditions and each Service Order and Telephone Order entered into between Pipex Homecall and the Customer which shall form the entire agreement between Pipex Homecall and the Customer in respect of the provision of the Services; |
"Access Provider" |
means the telecommunications network operator enabling connection to the Services; |
"Act" |
means the Telecommunications Act 1984, Communications Act 2003 and/or any other relevant legislation as modified from time to time; |
"BT" |
means British Telecommunications plc; |
"Businesscall" |
means Pipex Homecall's carrier pre-select and/or leased cost routing telecommunications service; |
"Businesscall Expected Monthly Spend" |
means the amount of the Customer's expected minimum spend in respect of Call Charges in relation to the Businesscall element of the services for each month during the term of this Agreement as specified in Section 5 of the Service Order or, where the Customer orders Businesscall by telephone, as specified in the Telephone Order; |
"Businesscall Minimum Monthly Charge" |
means the greater of (i) £12.50 (plus VAT) per month and (ii) 50 percent (plus VAT) of the Customer's Businesscall Expected Monthly Spend during the term of this Agreement in respect of the Businesscall element of the Services; |
"Business Day" |
means every day excluding Saturdays, Sundays and Public and Bank Holidays in England and Wales; |
"Call Charges" |
means the charges payable by the Customer monthly in arrears for use of the elements of the Services referred to in this Agreement as the NGN Charged Services and as Businesscall as logged by Pipex Homecall and calculated in accordance with the Tariff Sheet; |
"Pipex Homecall" |
means Pipex Homecall Limited, a Tiscali UK company, 20 Broadwick Street, London W1F 8HT Registered in England, registered number 4063120; |
"Charges" |
means the Call Charges, the Fixed Charges, the Connection Charge, the Businesscall Minimum Monthly Charge and the NGN Services Minimum Monthly Charge and/or any other monies due and payable by the Customer to Pipex Homecall in respect of the Services; |
"Confidential Information" |
means in relation to a party to this Agreement any and all information relating to that party's business methods, customers, suppliers, finances, ideas, strategies, concepts, methodologies, inventions, processes, formulae, products, software, programs, source code and other matters for the time being in that party's possession or owned by that party; |
"Connection Charge" |
means the charges notified to the Customer for the connection of each piece of equipment and/or Exchange Line to a Network; |
"Customer" |
means the company, organisation or individual named as the Customer in Section 1 of the Service Order or, where the relevant company, organisation or individual orders the Services by telephone, as specified in the Telephone Order; |
"Customer's Equipment" |
means any equipment owned and maintained by the Customer and used in connection with the Services; |
"Equipment" |
means any apparatus or equipment owned by Pipex Homecall and supplied to the Customer to facilitate the provision of the Services; |
"Fixed Charges" |
means a fixed charge levied as a regular subscription fee in respect of the WLR element of the Services and payable by the Customer to Pipex Homecall monthly in advance; |
"Force Majeure" |
means any circumstances beyond a party's reasonable control affecting the performance of their obligations under this Agreement including but not limited to acts of God, fire, flood, explosion, accidents, war, acts of terrorism, labour disputes, strikes, lock outs, embargo, subcontractor delays, acts of Government, state of emergency, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events; |
"Group" |
means, in relation to any company, that company and any other company which, at the relevant time, is that company's holding company or subsidiary (as defined by s 736 and s 736A of the Companies Act 1985), or the subsidiary of any such holding company (as so defined), and a "member" of a Group has the corresponding meaning; |
"Minimum Contract Term" |
means the minimum period for which this Agreement is to be effective being either: (a) the period specified in Section 5 of a Service Order or on a Telephone Order; or (b) if no such period is specified, the period of 1 year from the date of acceptance of the Customer's application under clauses 2.7 and 7.1 (as replaced from time to time under clause 7.2); |
"Network" |
means any telecommunications network that Pipex Homecall may use in order to provide the Customer with the Services; |
"NGN Charged Services" |
means Pipex Homecall's telecommunications service through which Pipex Homecall delivers calls to the Customer through a Non-Geographic Number and in respect of which the Customer is required to pay Call Charges; |
"NGN Services Minimum Monthly Charge" |
means 2 pence for each minute of the Customer's NGN Services Expected Monthly Usage in respect of the NGN Charged Services and/or NGN Revenue Share Services; |
"NGN Revenue Share Services" |
means Pipex Homecall's telecommunications service through which Pipex Homecall delivers calls to the Customer through a Non-Geographic Number allowing a revenue share to be generated for the Customer by some or all of the calls; |
"NGN Services Expected Monthly Usage" |
means the expected usage per month (measured in minutes) in respect of calls delivered to the Customer through the NGN Charged Services and/or NGN Revenue Share Services for each month during the term of this Agreement as specified in Section 4 of the Service Order or, where the Customer orders such services by telephone, as specified in the Telephone Order; |
"Non-Geographic Number" |
means any telephone number used by Pipex Homecall to provide the NGN Charged Services and NGN Revenue Share Services (being, in the case of NGN Charged Services, numbers prefixed with 0800 or 0845 or, in the case of NGN Revenue Share Services, 0870 and/or such other numbers as are made available by Pipex Homecall from time to time for the provision of such services); |
"Offending Material" |
means any material, data, images or information that is: (i) in breach of any law, regulation, code of practice or the Use Policy; and/or (ii) abusive, indecent, defamatory, immoral, offensive, obscene or menacing or otherwise offensive; and/or (iii) fraudulent or which has any illegal or unlawful purpose; |
"Privacy Policy" |
means Pipex Homecall's privacy of information and data protection policy governing Pipex Homecall's use of the personal information that Pipex Homecall collect relating to the Customer's employees, agents, officers and/or directors during the provision of the Services as may be amended from time to time and which is available on request or on Pipex Homecall's website www.homecall.co.uk; |
"Services" |
means such of the Businesscall services, WLR services, NGN Charged Services, and NGN Revenue Share Services as are to be provided to the Customer by Pipex Homecall under this Agreement and/or any other products and/or services to be provided by Pipex Homecall to the Customer from time to time under this Agreement; |
"Service Order" |
means Pipex Homecall's official stationery signed by an authorised signatory of both parties and setting out in writing the Customer's requirements for and specific details relating to the Services; |
"Tariff Sheet" |
means the list of Fixed Charges, Call Charges and other applicable charges (a copy of which is available to the Customer upon request); |
"Telephone Order" |
means the order recorded either in writing or otherwise by an authorised representative of Pipex Homecall and placed by or on behalf of the Customer by telephone setting out the Customer's requirements for and specific details relating to the Services; |
"Use Policy" |
means Pipex Homecall's terms and conditions of use of the Services as issued by Pipex Homecall and published on Pipex Homecall's website from time to time; and |
"WLR" |
(Wholesale Line Rental) means the telecommunications service where Pipex Homecall provide access to the Network directly rather than through an Access Provider and lease to the Customer the telephone lines within the Network across which the Customer's voice telephone calls are routed in addition to routing those voice telephone calls across those lines. |
2. BASIS OF CONTRACT
2.1 These conditions shall govern the agreement between Pipex Homecall and the Customer for the supply of Businesscall, WLR, NGN Charged Services, NGN Revenue Share Services and/or any other products and/or services to be provided by Pipex Homecall to the Customer from time to time under this Agreement in each case as ordered from Pipex Homecall by the Customer from time to time pursuant to Service Orders or Telephone Orders to the exclusion of any other terms and conditions and will supersede all previous conditions notified to the Customer.
2.2 Service Orders and Telephone Orders entered into by the Customer leading to an agreement which is not expressed to be subject to these conditions shall still be subject to them.
2.3 No verbal warranties or representations shall bind Pipex Homecall. The Customer acknowledges that they do not rely on any representation and/or warranty that has not been made in accordance with these conditions.
2.4 Details in specifications, brochures and the Tariff Sheet are intended as a guide only and only give a general approximation of the Services.
2.5 The Customer confirms and agrees that they have not relied upon the details and information contained in Pipex Homecall's brochures or other sales literature unless they have sought and obtained written confirmation from Pipex Homecall of its accuracy.
2.6 If there is any conflict between the terms of these conditions and the terms of any Service Order or Telephone Order, the terms of these conditions will take precedence.
2.7 This Agreement will come into effect upon Pipex Homecall's acceptance of the Customer's initial application for one or more of the Services following completion of a Service Order or Telephone Order. If the Customer wishes to receive an additional Service, the Customer can apply for that Service by entering into a Service Order or Telephone Order. This Agreement will then come into effect in respect of that additional Service upon Pipex Homecall's acceptance of the Customer's application for such Service following completion of a Service Order or Telephone Order.
3. CONNECTION AND SUPPLY OF SERVICES
3.1 Where appropriate, Pipex Homecall will make the arrangements to transfer the Customer to the Services. The Customer authorises Pipex Homecall to arrange the termination of the Customer's existing contract for equivalent services with their existing telecommunications service provider and to obtain any information from the Customer's existing telecommunications service provider, relating to the transfer of the Customer's telecommunications services. Pipex Homecall does not guarantee that the Services will be ready by any particular date and shall not be liable for any failure to provide the Services by any estimated date.
3.2 Pipex Homecall will provide the Services with all due care and skill in accordance with this Agreement.
3.3 The Services may be affected by things outside of Pipex Homecall's control such as faults in the Network and we do not guarantee that the Services will operate error or fault free all of the time.
3.4 The provision to the Customer of the Services is dependent upon the acquisition of any and all consents, approvals and authorities necessary from the Customer's existing telecommunications service provider and Pipex Homecall will not be liable for any inability or delay in obtaining any such consents, approvals or authorities.
3.5 Connection to the Service is dependent on the Customer meeting Pipex Homecall's financial and other requirements. The Customer consents to Pipex Homecall making a search in the files of a licensed credit referencing agency who may record such search.
3.6 Pipex Homecall may refuse to connect the Customer to the Services if any of the information provided by the Customer is inaccurate, incomplete or misleading and/or the Customer does not satisfy Pipex Homecall's customer criteria.
3.7 The Customer is responsible for providing Pipex Homecall with all necessary information and for the accuracy of that information. The Customer must inform Pipex Homecall immediately of any changes to the information provided to Pipex Homecall including any change of address.
3.8 Pipex Homecall may, at any time without notice, vary the Services provided that this does not adversely affect the functionality of the Services in a material way.
3.9 The Customer will not reject the Services and shall have no right to rescind the Agreement for late performance unless the due date for performance has passed and the Customer has served 14 days notice on Pipex Homecall requiring the Agreement to be performed and such notice has not been complied with.
3.10 If the Customer refuses to allow the performance of the Agreement then Pipex Homecall may withhold the performance of any other agreement and to treat this Agreement as repudiated by the Customer and Pipex Homecall may rescind this Agreement.
3.11 The Customer will at Pipex Homecall's request, arrange for the Customer's Equipment to be reprogrammed by Pipex Homecall's designated maintainer and Pipex Homecall will have no liability to the Customer in respect of such reprogramming.
3.12 The Customer shall provide Pipex Homecall (without charge) with all information, assistance and/or facilities that are required to enable Pipex Homecall to supply the Services and fulfill their obligations under this Agreement.
3.13 Pipex Homecall will provide fault-handling and resolution services, on condition that:
3.13.1 the Customer notifies Pipex Homecall within 48 hours of discovering a fault;
3.13.2 If Pipex Homecall does not find any fault in the Services, or considers the fault to have been caused by the Customer, Pipex Homecall may charge for any costs incurred in carrying out any maintenance or repair;
3.14 If it is necessary to carry out scheduled or unscheduled maintenance, or to suspend the Services temporarily, Pipex Homecall will endeavour to provide notice to the Customer, wherever possible.
3.15 Pipex Homecall cannot guarantee that the Access Provider will not charge the Customer for any calls, nor can Pipex Homecall guarantee that the Access Provider will route any call to the Network. The Customer remains liable to the Access Provider for charges levied against the Customer by the Access Provider.
3.16 Where the Services provided to the Customer under this Agreement include WLR, Pipex Homecall will, at the Customer's cost (as specified on the Tariff Sheet), arrange for a standard entry to be made into the appropriate BT telephone directories detailing the Customer's contact information.
3.17 Once the Customer has been connected to the Services, any telephone voice calls made by the Customer over a network owned and controlled by BT using any override code (for example, 100 (Operator Call), 1280 (BT Override Code) etc), will be charged to the Customer. Where the Customer receives WLR from Pipex Homecall, Pipex Homecall will charge the Customer for such calls at BT's then current rates for such calls. Where the Customer does not receive WLR from Pipex Homecall and instead obtains line rental from BT, BT will charge the Customer for such calls at such rates as BT specifies and the Customer will pay such charges to BT.
3.18 The Customer acknowledges that any call barring features requested in conjunction with the WLR part of the Services may take up to 15 Business Days from the date of the Service Order to activate.
4. USE OF THE SERVICES
4.1 The Customer must not use the Services:
4.1.1 to send any messages or communications which contain Offending Material; and/or
4.1.2 to intentionally harass, annoy, inconvenience or cause anxiety to any person.
4.2 The Customer's continued use of the Services is on condition that the Customer:
4.2.1 follows all reasonable instructions that Pipex Homecall may provide for the provision and operation of Services from time to time;
4.2.2 complies with all relevant provisions of the Act, the Use Policy, any other relevant law, code of practice, regulation, or any direction of the Director General of Telecommunications or other competent authority, and any license which governs the running of the Customer's own telecommunications system;
4.2.3 shall ensure that the Customer's Equipment is in good working order, of correct specification and conforms to the relevant standard or approval for the time being designated under the Act;
4.3 Pipex Homecall will carry out any work required, by appointment between 9.00am and 5.00pm, on Business Days. If the Customer requires Pipex Homecall to carry out work outside these hours, Pipex Homecall reserves the right to charge the customer for such work at its then current hourly "out of hours" rates.
4.4 Where the Customer has reported a fault and no Equipment is installed, the Customer will allow Pipex Homecall's designated maintainer to check the Customer Equipment, Pipex Homecall may charge the Customer for any work undertaken in respect of a fault where the fault was not Pipex Homecall's responsibility at Pipex Homecall's then current hourly rates.
4.5 All rights in the allocated telephone numbers will remain with Pipex Homecall and the Customer shall have no rights in any number that Pipex Homecall allocates to the Customer. The Customer is not permitted to register allocated numbers as a trademark or assert any other rights in respect thereof, and the Customer will not sell or agree to transfer them to anyone else.
4.6 Pipex Homecall may modify or amend any telephone numbers given to the Customer or introduce additional access codes.
4.7 The Customer will not act or rely upon the provision to them of a specific Non-Geographic Number until they have received confirmation from Pipex Homecall that the Non-Geographic Number has been obtained and allocated to them.
5. CHARGES AND PAYMENT
5.1 If this Agreement is cancelled or terminated because Pipex Homecall is unable to connect the Service (other than because of default by the Customer) then Pipex Homecall shall be entitled to invoice and be paid on a quantum meruit basis for that part of the work performed save where Pipex Homecall should reasonably have been aware that the service could not be connected.
5.2 If this Agreement includes Businesscall and/or NGN Charged Services, the Customer will, during each month of the term of this Agreement, pay (in addition to any other sums payable under this Agreement) Pipex Homecall the Call Charges for that month in respect of such services together with any further monthly sums payable under clauses 5.4, 5.5 and/or 5.6 in respect of such services.
5.3 If this Agreement includes WLR, the Customer will, during each month of the term of this Agreement, pay (in addition to any other sums payable under this Agreement) Pipex Homecall the Fixed Charges for that month in respect of such services.
5.4 If this Agreement includes Businesscall and Pipex Homecall and the Customer have agreed a Businesscall Expected Monthly Spend and the Call Charges payable by the Customer in any month during the term of this Agreement in respect of Businesscall fall below the agreed Businesscall Minimum Monthly Charge, the Customer will, if requested to do so by Pipex Homecall, in addition pay Pipex Homecall the amount which is the difference between the actual Call Charges payable for that month and the Businesscall Minimum Monthly Charge.
5.5 If this Agreement includes NGN Charged Services and Pipex Homecall and the Customer have agreed NGN Services Expected Monthly Usage in respect of such services and the Customer's usage of such services in any month during the term of this Agreement falls below the agreed NGN Services Expected Monthly Usage for such services, the Customer will, if requested to do so by Pipex Homecall, in addition to paying the Call Charges payable in respect of actual usage for that month, pay Pipex Homecall 2 pence per minute for each minute of the NGN Expected Minimum Monthly Usage which has not been used by the Customer in the relevant month in respect of such services.
5.6 If this Agreement includes NGN Revenue Share Services and Pipex Homecall and the Customer have agreed NGN Services Expected Monthly Usage in respect of such services and the Customer's usage of the NGN Revenue Share Services in any month during the term of this Agreement falls below the agreed NGN Services Expected Monthly Usage for such services, the Customer will, if requested to do so by Pipex Homecall, pay Pipex Homecall the 2 pence per minute for each minute of the NGN Expected Minimum Monthly Usage which has not been used by the Customer in the relevant month in respect of such services.
5.7 Pipex Homecall may increase all or any of the Charges at any time during the term of this Agreement. The Customer will be informed in writing by Pipex Homecall of any increases in any of the Charges not less than 30 days before such increase takes effect. The Customer shall have the following cancellation rights in respect of increases in Charges:-
5.7.1 in the case of an increase in Call Charges in respect of Businesscall, the Customer may cancel without liability this Agreement in respect of Businesscall and WLR only;
5.7.2 in the case of an increase in Call Charges in respect of NGN Charged Services, the Customer may cancel without liability this Agreement in respect of NGN Charged Services only;
5.7.3 in the case of an increase in Fixed Charges in respect of WLR, the Customer may cancel without liability this Agreement in respect of WLR only
PROVIDED THAT notice of cancellation is received by Pipex Homecall before the price increase becomes effective. This Agreement will remain in full force and effect in relation to all Services not cancelled in accordance with this clause 5.7. If the Customer does not serve notice of cancellation under this clause 5.7, then the increase in Charges shall take effect. The Customer remains responsible for all Charges up to the point that the relevant service is disconnected.
5.8 If this Agreement includes the NGN Revenue Share Services and Pipex Homecall is not paid for minutes generated to the Customer's Non Geographic Numbers, Pipex Homecall will make no payment to the Customer in respect of those minutes.
5.9 If this Agreement includes the NGN Revenue Share Services and there are any changes to the rate that Pipex Homecall is paid for minutes generated to the Customer's Non Geographic Numbers, Pipex Homecall may reduce the payment made to the Customer in relation to those minutes. If the change in the rate paid to Pipex Homecall is backdated, the change in the rate to the Customer will also be backdated.
5.10 All Charges due must be paid within 30 days of the date on the invoice, by the agreed payment method as specified in Section 3 of the Service Order or, where the Customer orders the Services by telephone, as specified in the Telephone Order and notified to the Customer. With the exception of Charges disputed by the Customer in accordance with clause 5.16 below, all Charges payable by the Customer shall be paid in full without any deduction or set-off, withholding or counterclaim and any undisputed part of a disputed invoice shall be paid by the Customer in accordance with clause 5 of these conditions.
5.11 Pipex Homecall does not accept responsibility for delays in the billing of any Charges and any delay will not alter the Customer's liability to pay the Charges.
5.12 Pipex Homecall may charge the Customer a re-connection fee, where the Customer has been disconnected, or suspended for non-payment and/or any other breach of this Agreement by the Customer.
5.13 Pipex Homecall may charge the Customer any additional administration charges, as listed in the Tariff Sheet, where the Customer pays Pipex Homecall's invoices other than by way of Direct Debit.
5.14 If the Customer fails to make any payment in full on the due date Pipex Homecall may charge the Customer any reasonable additional administration costs and/or interest (both before and after judgment) on the amount unpaid at the rate of 4% above the base rate from time to time of Barclays Bank Plc.
5.15 Any monies received by Pipex Homecall from the Customer may be applied by Pipex Homecall at its option against any additional administrative costs and/or interest charged prior to application against any principal sums due from the Customer against which it may be applied in any order.
5.16 In the event that the Customer wishes to dispute an item on the invoice, the Customer must do so in writing within 14 days of the date of the invoice and in any event before the invoice is due for payment. The notice must set out in detail the nature of the dispute, the date and numbers of any disputed invoices, the amount in dispute, the reason for the dispute and copies of any supporting documentation as appropriate. Pipex Homecall will determine the disputed item in its sole discretion and Pipex Homecall's response and/or decision will be final and binding on the Customer.
5.17 All Charges are exclusive of VAT at the then prevailing rate for which the Customer will be additionally liable.
5.18 Pipex Homecall will, in its sole discretion, determine and vary the Customer's credit terms.
5.19 The Customer remains liable for all charges due under this Agreement even if Services have been suspended, disconnected or terminated for non-payment, or the Customer has transferred the number(s) to another telecommunications provider.
5.20 Pipex Homecall will make available to the Customer a copy of the Tariff Sheet promptly upon request.
6. SUSPENSION AND/OR DISCONNECTION OF SERVICES
6.1 Pipex Homecall may suspend provision of the Services immediately and without notice or liability to the Customer if:
6.1.1 Pipex Homecall has reasonable grounds to suspect that the Customer is using the service in contravention of the provisions of clause 4.1 above; and/or
6.1.2 the Customer has breached their credit terms; and/or
6.1.3 the Customer does not make any payment to Pipex Homecall when due;
6.1.4 Pipex Homecall has reasonable grounds to believe that the Customer will not and/or is unable and/or unwilling to make payment when due to Pipex Homecall;
6.1.5 Pipex Homecall has reasonable grounds to believe that the Customer is, has or may be involved in criminal activity or any other activity which in Pipex Homecall's sole discretion may be detrimental to and/or have an adverse effect on Pipex Homecall's business and/or reputation;
6.1.6 Pipex Homecall is obliged to comply with an order, instruction or request of a court, government body, regulatory authority or other administrative or legal entity;
6.1.7 the Customer's direct debit instruction fails and/or is cancelled.
6.2 During suspension of the Service, the Customer will have to pay all Charges due, and any other reasonable costs and expenses that Pipex Homecall may incur as a result of such suspension and any subsequent reinstatement of the Services.
7. DURATION AND TERMINATION OF SERVICES
7.1 This Agreement will come into effect upon Pipex Homecall's acceptance of the Customer's initial application for one or more of the Services following completion of a Service Order or Telephone Order and will continue from that date for the Minimum Contract Term and thereafter unless and until terminated under this clause 7.
7.2 If the Customer wishes to receive an additional Service, the Customer can apply for that Service by entering into a Service Order or Telephone Order and this Agreement will be effective in respect of that additional Service upon Pipex Homecall's acceptance of the Customer's application for such Service following completion of a Service Order or Telephone Order. If the Minimum Contract Term in relation to the additional Service extends beyond the Minimum Contract Term already in force, then the Minimum Contract Term for the additional Service shall also replace the Minimum Contract Term for the existing Services. This rule shall apply to each additional Service added from time to time.
The following example has been included to explain the operation of this clause:-
Example
Where a customer (a) initially orders Businesscall for a Minimum Contract Term of 2 years then (b) 18 months into the Minimum Contract Term for Businesscall orders and is accepted for WLR and the Minimum Contract Term for WLR is agreed or specified as 1 year, the Minimum Contract Term for WLR would replace the Minimum Contract Term for Businesscall and would apply to both WLR and Businesscall. Note, however, that the Agreement would not automatically terminate on expiry of the Minimum Contract Term for WLR (see clause 7.3). If the Customer wished to terminate the Agreement (as a whole and therefore in relation to both Businesscall and WLR) by 30 days notice under clause 7.4, the Customer would need to serve notice at least 30 days prior to the expiry of the Minimum Contract Term for WLR.
7.3 The expiry of the Minimum Contract Term (as replaced from time to time under clause 7.2) will not automatically terminate this Agreement and this Agreement will continue beyond the applicable Minimum Contract Term until terminated in accordance with its terms.
7.4 Either party shall be entitled to terminate this Agreement as a whole with effect from the expiry of the Minimum Contract Term (as replaced from time to time under clause 7.2) by delivering to the other written notice of non-renewal at least 30 days prior to the expiration of such Minimum Contract Term. In the event that no such notice is delivered, this Agreement shall automatically continue for successive periods of 12 months each unless and until either party terminates this Agreement by delivering to the other written notice of non-renewal at least 30 days prior to the expiration of the then current 12 month period.
7.5 Either party may terminate this Agreement as a whole if:
7.5.1 the other party is in breach of this Agreement and the breach is incapable of remedy;
7.5.2 the other party is in breach of this Agreement and the breach has not been remedied within 7 days of the other party's notice requiring the breach to be remedied;
7.5.3 the other party pledges or charges any Equipment which remains the property of Pipex Homecall, or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim order under Section 252 Insolvency Act 1986 or has a Bankruptcy Petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction; and/or
7.5.4 the other party experiences an event of Force Majeure for a continuous period of 3 months.
7.6 Pipex Homecall may terminate this Agreement at any time, immediately upon notice, if:
7.6.1 it is required to terminate this Agreement by a regulatory authority; or
7.6.2 the Customer fails to make any payment on or before the due date for payment and/or persistently fails to make payments on or before the due date for payment.
7.7 On termination of this Agreement, for any reason, the Customer will pay Pipex Homecall all Charges due under this Agreement including but not limited to any Charges in respect of the Businesscall Minimum Monthly Charge and NGN Services Minimum Monthly Charge as specified in clause 7.8 and 7.9 below except that the Customer will not be obliged to pay the Businesscall Minimum Monthly Charge or the NGN Services Minimum Monthly Charge under clauses 7.8 and 7.9 below where the Agreement has been terminated by the Customer in accordance with clauses 3.9 or 7.5 above or by Pipex Homecall under clauses 5.1 or 7.6.1 above. The Customer also will not be obliged to pay the Businesscall Minimum Monthly Charge in the event that it cancels Businesscall under clause 5.7, will not be obliged to pay the NGN Services Minimum Monthly Charge in respect of NGN Charged Services in the event that it cancels such services under clause 5.7 and will not be obliged to pay the NGN Services Minimum Monthly Charge in respect of NGN Revenue Share Services in the event that it cancels such services under clause 5.7.
7.8 Notwithstanding the fact that the Customer would not, under the circumstances, be entitled to terminate this Agreement on notice under condition 7.4, the Customer shall be entitled to terminate this Agreement, subject to clause 7.9, prior to the earliest date on which the Customer could terminate this Agreement under clause 7.4 ("Minimum Termination Date") on condition that the Customer pays to Pipex Homecall the amounts specified in clause 7.9 below.
7.9 If this Agreement is terminated before the Minimum Termination Date (as defined in clause 7.8) (other than where, under clause 7.7, the circumstances are such that this clause 7.9 is deemed not to apply) the Customer will pay to Pipex Homecall:
7.9.1 if this Agreement includes Businesscall and/or WLR, the difference between the Fixed Charges actually paid by the Customer and the Fixed Charges that would have been payable if the Agreement had not terminated before the Minimum Termination Date;
7.9.2 if this Agreement includes Businesscall, a disconnection fee equal to the Businesscall Minimum Monthly Charge in respect of each month of the unexpired period up to the Minimum Termination Date;
7.9.3 if this Agreement includes NGN Charged Services, a disconnection fee equal to the NGN Services Minimum Monthly Charge in relation to such services in respect of each month and part month of the unexpired period up to the Minimum Termination Date;
7.9.4 if this Agreement includes NGN Revenue Share Services, a disconnection fee equal to the NGN Services Minimum Monthly Charge in relation to such services in respect of each month and part month of the unexpired period up to the Minimum Termination Date.
7.10 Termination of this Agreement as a whole will operate to automatically terminate all Service Orders or Telephone Orders then in force.
8. LIMITATION OF LIABILITY
8.1 With the exception of the customer's obligation to pay the Charges, each party's total liability to the other party under this Agreement in relation to any claim or series of connected claims shall not exceed £1,000,000.
8.2 Neither party will be liable to the other for any: 8.2.1 consequential losses; 8.2.2 loss of profits and/or damage to goodwill; 8.2.3 economic and/or other similar losses; 8.2.4 special damages and indirect losses; and/or 8.2.5 business interruption, loss of business, contracts, opportunity and/or production.
8.3 Pipex Homecall shall have no liability to the Customer in respect of any act or default or delay by BT, the Access Provider, any other communications provider and/or any regulatory authority in carrying out their obligations necessary to enable the provision of the Services and/or in respect of the entry of the Customer's number in any telephone directory compiled by BT or for any error made in relation to such an entry.
8.4 Pipex Homecall will have no liability to the Customer for any fault or defect where the fault or defect has been caused by the Customer.
8.5 The Customer shall give Pipex Homecall a reasonable opportunity to remedy any matter for which Pipex Homecall is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so Pipex Homecall shall have no liability to the Customer.
8.6 Pipex Homecall shall have no liability for damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer's continued use of defective or faulty Services after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
8.7 Pipex Homecall shall have no liability for any costs, expenses, charges, losses and/or fees incurred by the Customer as a result of non-compliance with clause 4.7 by the Customer.
8.8 Each of the limitations and exclusions in this Agreement shall be deemed to be repeated and apply as a separate provision for each of: 8.8.1 liability for breach of contract; 8.8.2 liability in tort (including negligence); 8.8.3 liability for breach of statutory duty; and 8.8.4 liability for breach of Common Law except clause 8.1 which shall apply once only in respect of all the said types of liability.
8.9 The Customer indemnifies and will keep indemnified Pipex Homecall against any and all losses or liabilities including but not limited to expenses, costs (including increased administration costs and legal costs on a full indemnity basis), claims (whether actual or threatened), proceedings, actions, demands, judgments, awards, damages, lost profits and other losses or liabilities incurred directly or indirectly by Pipex Homecall directly or indirectly as a result of any:
8.9.1 breach of contract, tortuous act and/or omissions (including negligence) breach of statutory duty or Common Law by the Customer; and/or
8.9.2 claim by a third party that the Customer's use of the Services infringes any rights of that third party.
8.10 The Customer will be liable under this Agreement for the acts and/or omissions of its employees, agents, officers, managers, executives and/or subcontractors (whether or not they remain as the Customer's employees, agents, officers, managers, executives and/or subcontractors) as if they were the Customer's own acts and/or omissions under this Agreement.
8.11 The Customer shall be under a duty to mitigate any loss, damage, costs and/or expenses that it may suffer.
8.12 Nothing in this Agreement will limit or exclude either party's liability for death or personal injury caused by that party's negligence or any liability due to that party's fraud or fraudulent misrepresentations made by that party or any other liability which that party is not permitted to exclude or limit as matter of law.
9. GENERAL
9.1 Neither party shall have any liability to the other party for any delay in performance of this Agreement (other than in relation to payment) to the extent that such delay is due to an event of Force Majeure. If a party is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance. If the event of Force Majeure subsists for a continuous period exceeding 3 months then either party may terminate this Agreement without liability in respect of such termination.
9.2 This Agreement is regulated by the Act, and any other relevant law, code of practice, regulation or any direction of the Director General of Telecommunications or other competent regulatory authority and any licence, which governs the running of the Customer's own telecommunications system.
9.3 Pipex Homecall may vary these conditions at any time upon service to the Customer of no less than 5 Business Days written notice where Pipex Homecall are required to do so in order to comply with new laws, rules and/or regulations and/or any changes to Pipex Homecall's telecommunications licence.
9.4 With the exception of clause 9.3 above, no variation to this Agreement shall be effective unless in writing and signed by an authorised signatory of both the Customer and Pipex Homecall respectively.
9.5 No waiver by Pipex Homecall of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
9.6 The Customer may not transfer the benefits or obligations under this Agreement to any other party without Pipex Homecall's prior written consent and the Customer will not transfer, sub-license or resell the Services for use by a third party. Pipex Homecall may assign its rights, obligations, benefits and/or burdens under this Agreement to any member of its Group in whole or in part upon notice to the Customer and to any third party with the prior written consent of the Customer, such consent not to be unreasonably withheld or charged for.
9.7 Any notices which may be given by either the Customer or Pipex Homecall under this Agreement must be in writing and must be delivered by hand or by pre-paid mail to the relevant registered office.
9.8 If any provision of this Agreement is held to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
9.9 The information the Customer provides will be used by Pipex Homecall to supply the Services and will not be used and/or disclosed other than in accordance with the Privacy Policy. Pipex Homecall may record and/or monitor telephone calls made to Pipex Homecall for training or customer services purposes.
9.10 All third party rights are excluded and no third party shall have any right to enforce this Agreement. This shall not apply to members of Pipex Homecall's Group from time to time who shall, subject to Pipex Homecall's consent, have the right to enforce this Agreement as if they were Pipex Homecall. Any rights of a third party to enforce this Agreement may be varied and/or extinguished by agreement between the parties to this Agreement without the consent of any such third party.
9.11 If a dispute arises between Pipex Homecall and the Customer in respect of this Agreement and/or the Services, each party shall in the first instance promptly bring the dispute to the attention of the relevant parties. In respect of the Customer the relevant party will be the purchasing manager and in respect of Pipex Homecall the relevant party will be the account manager responsible for the Customer's account with Pipex Homecall.
9.12 If any dispute referred to the relevant parties under clause 9.11 has not been resolved within 5 Business Days of the date of the referral under clause 9.11 then the parties will refer the matter to the Customer's and Pipex Homecall's Financial Directors respectively.
9.13 This Agreement is governed by and interpreted in accordance with English Law and the parties agree to submit to the non-exclusive jurisdiction of the English Courts. (Version: 11/05/06)