1. Definitions and Interpretation
1.1. These Terms and Conditions apply to the Agreement between:
1.1.1. you, the customer named on the Order Form; and
1.1.2. us, Premier Choice Telecom Limited (‘PCT’), a company registered in England and Wales under company number 04041312.
for the service set out in the Order Form.
1.2. The Agreement between you and us is made up of:
1.2.1. These standard PCT Terms and Conditions;
1.2.2. Any Service Specific Terms contained within the Order Form which are incorporated into these Terms and Conditions;
1.2.3. Any Additional Terms which apply as set out in clauses 4 to 6 (inclusive); and
1.2.4. The other policies or agreements which we provide to you prior to or during the Period of Service.
1.3. The service will start on the Commencement Date.
1.4. Where the following words are capitalised in the Agreement, they have the meanings set out below:
Additional Terms: means the terms set out in clauses 4 to 6 (inclusive), if applicable.
Agreement: has the meaning set out in clause 1.2.
Agreement Year: the 12 (twelve) month period starting on the Commencement Date and each anniversary of it.
Broadband Services: your Order for the provision of broadband services, as set out in the Order Form.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Carrier: means a provider of Network Services.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these Terms and Conditions as amended from time to time in accordance with clause 18.7.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Default: has the meaning given to it in clause 8.2.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Subject: an individual who is the subject of Personal Data.
Deliverables: the deliverables set out in the Order produced by us for you.
Delivery Location: the address you specify on the Order Form or another address which you notify us of in writing for the purposes of any delivery under this Agreement.
Employee: as defined in section 230 of the Employment Rights Act 1996
Equipment: the equipment specified in the order form and any other equipment we provide to you during the Period of Service.
Extended Term: means any term of the Agreement beyond the Initial Commitment Period.
Force Majeure Event: has the meaning given to it in clause 17.
Initial Commitment Period: means the term of this Agreement in respect of each service supplied as set out on the Order Form commencing on the Commencement Date.
Installation Date: is the date we agree to install the Services and deliver the Equipment to your Premises.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Maintenance, Equipment and Installation Services: your Order for the provision of maintenance, equipment and installation services, as set out in the Order Form.
Network Services: your Order for the provision of network services, as set out in the Order Form.
Order: your order for the supply of Services, as set out in the Order Form.
Order Form: means the form which sets out the Services which we will provide to you.
Our Materials: has the meaning given in clause 8.1.8.
Period of Service: means the Initial Commitment Period and any further or Extended Term during which we provide Services to you.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which you are the Data Controller and in relation to which we are providing services under the Agreement.
Premises: the address or addresses specified on the Order Form or any other address you notify us of in writing.
Processing and Process: have the meaning set out in section 1(1) of the Data Protection Act 1998.
Regulatory Change: any change in regulations or law which affect us or this Agreement.
Service Equipment: means the equipment (other than the Equipment ordered) we provide to allow you to use the Service.
Service Specific Terms: means the terms incorporated into this Agreement which are set out in the Order Form. In the event of any conflict between term or terms in this Agreement and a Service Specific Term or Terms then the Service Specific Term or Terms shall prevail.
Services: means the services provided to you under this Agreement.
Service Specification: the description or specification for the Services provided in writing by us to you.
Tariff: means the list of prices we make available to you as amended from time to time.
Termination Date: means the date on which the Agreement expires or is terminated by you or us and where the Agreement does not continue into an Extended Term.
1.5.1. ‘Person’ includes a natural person, company, partnership, form, business, organisation, government body, trust, organisation, department or association.
1.5.2. ‘You’ includes your employees and agents, any person who takes over your business and any person who acts on your behalf.
1.5.3. ‘We’ includes our employees and agents, any person who takes over our business and any person who acts on our behalf.
1.5.4. ‘Parties’ or ‘party’ means you and us.
1.5.5. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.5.6. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5.7. A reference to writing or written includes faxes and emails.
1.5.8. A reference to signed includes signatures made electronically or physically.
2. Basis of the Agreement
2.1. The sending of the Order Form constitutes an offer by us to you to provide Services and/or Equipment in accordance with these Terms and Conditions, the Order Form and any Additional Terms or Service Specific Terms (Agreement).
2.2. The Order (save for Network Services) will be accepted and the Agreement shall be formed only when we receive the Order Form, signed by you at which point and on which date the Agreement will become binding on us both (Commencement Date).
2.3. An Order for Network Services shall only be deemed to be accepted when we issue written acceptance of the receipt of the Order Form at which point and on which date the Agreement in respect of Network Services shall come into existence. We may, at any time until the Commencement Date in respect of the Network Services, withdraw the offer.
2.4. Any samples, drawings, descriptive matter or advertising issued by us and any illustrations or descriptions of the Services contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.5. These Terms and Conditions apply to the Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6. In the event that any Service Specific Terms stated on the Order Form are incorporated into this Agreement then the Service Specific Terms shall prevail in the event of any conflict.
2.7. Any quotation provided by us to you does not constitute an offer. The Services and/or price set out in the quotation is valid for a period of 28 days after which we reserve the right to amend the quotation.
2.8. You warrant to us that you are entering into this Agreement in the course of your business, trade or profession and solely for that purpose.
3. Supply of Services
3.1. We shall supply the Services to you in accordance with the Agreement in all material respects.
3.2. If it is specified in the Order Form that we will supply any of the Services to which clauses 4 to 6 (inclusive) apply, then the relevant clause or clauses will also be applicable to this Agreement.
3.3. We shall use all reasonable endeavours to meet any performance dates for the Services specified in the Agreement, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.4. We reserve the right to amend any Services under the Agreement if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
3.5. We warrant to you that the Services provided under the Agreement will be provided using reasonable care and skill.
3.6. Any equipment connected to or used with or for the service must bear the European Consumer Equipment Standards “CE” mark. The equipment must also be used in accordance with all relevant instructions, laws, regulations and safety and security procedures. We do not support any equipment not provided by us.
3.7. We may need to access your Premises from time to time in relation to the provision of Services under this Agreement. If we do, then we will give you advance notice and provided that appropriate identification is produced you agree to allow us access to your Premises. You must take all such steps as may be necessary to ensure the safety of our representative who visits your Premises.
3.8. You acknowledge that licensed operators provide the telephone and other networks which are utilised by us and we cannot guarantee that Services will not be interrupted or without error.
3.9. The following Additional Terms shall also apply where it is indicated on the Order Form that you have selected the respective Service/s:
4. Network Services
4.1. You may cancel your order for Network Services at any time before the Commencement Date. If you do so then we will charge an administrative fee of £120.00 in addition to any Carrier or any other charges or costs incurred in relation to your Order and/or cancellation. You agree that the costs incurred in relation to cancellation by a Carrier may be high and that it may not be possible for us to provide confirmation of the exact costs in advance.
4.2. It is not possible for us to guarantee that Network Services will be without fault or interruption. In the event that there is an interruption or fault you must notify us immediately. We accept no liability for any loss or damage in contract or tort for any acts or omissions by the Carrier.
4.3. If we grant to you a Cloud-Based Sub Licence during the period of the Agreement then upon us ceasing to provide Network Services to you, the Cloud-Based Sub Licence and all rights in it will revert to us.
4.4. In relation to the provision of Network Services, you agree:
4.4.1. To comply with the restrictions in respect of use which are set out in clause 8.1.9;
4.4.2. To ensure that at all times there is adequate security and that you maintain full control over your networks and equipment to prevent fraudulent or unauthorised use of the network. Please also refer to both our Fraud Policy (www.premierchoicegroup.com/fraud) and Acceptable Use Policy (www.premierchoicegroup.com/acceptable-use); and
4.4.3. Not to sell the Network Services provided under this Agreement in whole or in part.
4.5. Upon termination of the Agreement you must return to us within 7 days of the Termination Date any Equipment installed or supplied by us in relation to the provision of Network Services. The Equipment must be retuned at your own cost and if we do not receive the Equipment within 7 days of the Termination Date we reserve the right to charge an engineering call out fee in respect of any unreturned Equipment.
4.6. If you transfer the supply of Network Services from another supplier to us then we will charge you in accordance with our Tariff.
5. Broadband Services
5.1. Prior to the provision of Broadband Services we will need to conduct checks and undertake preparatory works in order to determine that such Services can be provided. Such checks and works include, but are not limited to, a line test, tests and works to configure and supply the line required for the Services and activation of the Services. In the event that we are unable to provide Broadband Services for any reason following the preparatory works and/or checks then we will notify you as soon as reasonably practicable.
5.2. If it is necessary for a line to be installed at your Premises then you must follow any instructions we give you in respect of preparing your Premises. You must provide a suitable location for the line and any other products we provide to be installed at your Premises.
5.3. Unless we agree otherwise, you are responsible for the installation of Broadband Services. We will provide activation and support from the broadband network to the modem/router connection. We are not responsible for computer support, configuration, LAN configuration, integration and any other equipment connected to the Broadband Service. Any third party equipment, installation and support remain your responsibility.
5.4. In relation to the provision of Broadband Services, you acknowledge and accept the following:
5.4.1. The speed of Broadband Services can vary due to factors outside our control and the maximum broadband speed quoted is for guidance purposes only and we do not guarantee that the quoted speed will be applicable.
5.5. In respect of a router supplied by us:
5.5.1. The router is supplied solely for the purpose of providing an interface for you to connect equipment to;
5.5.2. The router is the demarcation point at which our responsibility for the provision of broadband and data services ends;
5.5.3. Access to some functions which the router may be capable of supporting or providing will not be made available unless requested by you for your own use. These functions include access to the command interface, wireless connectivity and firewall functions;
5.5.4. We are not responsible for the configuration of a router other than network user name and password; and
5.5.5. We shall not be responsible for the installation of firewalls.
6. Maintenance, Equipment and Installation Services
6.1. The supply of Equipment pursuant to this clause 6 is conditional upon the availability of the Equipment on or prior to the Installation Date and we reserve the right to vary the Installation Date in the event that the Equipment is not available. For the purposes of this clause 6, time shall not be of the essence and we may vary the Installation Date if it is necessary for us to do so.
6.2. You shall be responsible for checking that all details contained in the Order Form are correct. If any details are incorrect you must notify us immediately.
6.3. We may deliver the Equipment in separate deliveries or on different dates. You must accept all deliveries and, in the event that the Equipment is delivered in more than one delivery, this does not entitle you to terminate the Agreement.
6.4. The Equipment is deemed to be delivered for the purposes of this Agreement at the time it arrives at your Delivery Location. The Equipment shall be deemed to be delivered at the time it arrives and is ready to be unloaded from the delivery vehicle.
6.5. If we have attempted to deliver the Equipment and for any reason which is out of our control the Equipment cannot be delivered then, provided that the circumstances giving rise to the failure of the delivery are within your control, we reserve the right to charge you any reasonable and proper costs we incur as a result of storing the Equipment, redelivering or attempting to redeliver the Equipment.
6.6. You are responsible for checking that the items contained within the delivery are correct and, in the event there are any missing or incorrect items, you must notify us immediately.
6.7. Upon delivery of the Equipment, or deemed delivery pursuant to clause 6.4, you are responsible for insuring the Equipment and risk shall pass to you.
6.8. You must notify our service desk as soon as possible of any fault with the Equipment or any work, repair or maintenance that may be necessary.
6.9. The Equipment will remain our property at all times unless we agree in writing that ownership will pass to you. Ownership will not pass to you until you have paid to us all sums due in respect of the Equipment and any associated installation charges.
6.10. During the term of the Agreement you shall not remove the Equipment from your Premises without our prior written consent.
6.11. We shall, as soon as reasonably practicable, carry out any maintenance of or any repairs to or replacements of the Equipment which are required and which may be necessary as the result of fair wear and tear arising from the correct and proper operation of the Equipment. Such maintenance, repairs and replacements may be carried out at the Premises or at any other location. Any additional maintenance, repairs or replacements or service visits not covered by this Agreement (including, but not limited to: trunk line faults or maintenance required as a result of your or a third party’s incorrect use of the Equipment) shall be carried out at your expense in accordance with our maintenance charges (which are available on request).
6.12. Our maintenance obligations under this Agreement shall not include repair or maintenance to Equipment that is faulty where the fault is caused by the following:
6.12.1. any act, omission, failure to maintain or operate the Equipment caused by your failure to comply with the manufacturer’s specifications, recommendations or guidance;
6.12.2. any attempt to repair, re-install, reconfigure or update the Equipment, or any software, equipment or cabling connected to it by you or any third party who is not us or an agent authorised by us;
6.12.3. failure of or any error caused by software or equipment used with the Equipment which was not supplied by us;
6.12.4. failure of or any error caused by software loaded by you onto our Equipment;
6.12.5. any failure caused by the environment in which the Equipment is placed including temperature or failure caused by electrical fluctuations;
6.12.6. fire, water, natural disasters, theft, vandalism or terrorism; or
6.12.7. failure of the connection with services supplied by a carrier.
6.13. Subject to clause 6.15 below, we will provide without additional charge labour and any materials used in carrying out any maintenance, repairs or replacements to the Equipment arising from fair wear and tear.
6.14. Subject to clause 13, we shall not be liable for any delay in the performance of our maintenance obligations under this Agreement where the delay is caused by a lack of availability of Equipment or parts from our suppliers.
6.15. Replacement of consumable or extendable items (as defined in the Order Form and/or accompanying documentation) (if any) shall be charged to you in accordance with our maintenance charges (which are available on request). For the avoidance of doubt cordless analogue DECT phones, Uninterrupted Power Supplier (UPS) and all headsets are treated as consumable items.
6.16. You must pay to us the maintenance charge stated in the Order Form on the date specified in the Order Form or following receipt of an invoice. We will increase our maintenance charge each Agreement Year during the period of the Agreement and each increase will be upwards only and a minimum of 10%.
Please refer to our Maintenance Policy (www.premierchoicegroup.com/maintenance).
6.17. Where replacement parts or other items are supplied by us and a separate charge is due for such parts or items pursuant to the terms of this Agreement, ownership of the parts or items shall not pass to you unless and until the full price has been paid by you for those parts or items.
6.18. We and our authorised representatives shall have access to your Premises at all reasonable times to perform our maintenance obligation hereunder during the continuance of this Agreement but will only be responsible for any damage to your Premises during the carrying out of such operations by reason of our negligence or wilful default but not otherwise. If you fail to allow us or our authorised representatives such access, we shall be under no obligation to carry out the maintenance requested by you or required under this Agreement.
6.19. For the avoidance of doubt, our obligations under this clause six do not extend to the maintenance of any piece of equipment not included in the definition of the Equipment, any Services or performance that are beyond the scope of this Agreement or maintenance of the Equipment’s environment (including your Premises or surrounding installations). Where we agree to extend the maintenance cover to such additional equipment, we shall be entitled to increase the maintenance charge due under this Agreement.
6.20. You must maintain the environmental conditions recommended by the manufacturer(s) of the Equipment and/or us as required.
6.21. We may during the term of the Agreement
6.21.1. Install and keep installed the Service Equipment at each location; and
6.21.2. Enter your Premises at any time to install, test, operate, maintain or remove the Service Equipment
6.22. In relation to any Service Equipment you shall:
6.22.1. not replace, interfere with, modify, adjust or connect to the Service Equipment without our prior written agreement;
6.22.2. not place any equipment or materials on top of Service Equipment;
6.22.3. take all reasonable steps to secure against any unauthorised use of the Service Equipment;
6.22.4. ensure the safe keeping of the Service Equipment and indemnify us for any loss or damage to the Service Equipment other than arising from our acts or omissions;
6.22.5. ensure that all Service Equipment has the relevant electrical protection and failsafe measures, labelling and instructions for use as may be required by law and that it is connected to the Network and used in accordance with any applicable laws and instructions we may provide;
6.22.6. ensure the compatibility of any applications, including Equipment, you wish to use with the Services and ensure that any such applications do not harm the network, Services, or any other customer’s network or equipment; and
6.22.7. provide a clean, safe and suitable environment for housing the service equipment.
6.23. You must return the Equipment to us if you are in breach of the Agreement and we request that you return the Equipment. The Equipment must be returned to an address specified by us at your cost or alternatively you must permit us to enter your Premises to recover the Equipment.
6.24. If the Equipment is leased to you then you shall return the Equipment to us at the end of the lease. You are responsible for any costs you incur as a result of returning the Equipment. You must permit us or our agents to enter your premises to recover the Equipment if we request to do so.
7. Bundled Services and Acceptable Usage
7.1. We may provide calls to the following without charge:
7.1.1. 01,02 and 03 numbers from Cloud-Based and SIP Services; and
7.1.2. mobile networks – FM1, FM3, FM4, FM5 and FM6 (namely O2, EE (Orange and T-Mobile), Three and Vodafone
7.2. The calls without charge under clause 7.1 are subject to the following limitations unless the Order Form states otherwise
7.2.1. a SIP endpoint not exceeding 2,000 minutes per month to 01,02 or 03 terminations;
7.2.2. a SIP endpoint not exceeding 2,000 minutes per month to mobile destinations (as set out in clause 7.21);
7.2.3. a cloud-based subscription/handset not exceeding 2,000 minutes per month to 01,02 or 03 terminations; and
7.2.4. a cloud based subscription/handset not exceeding 2,000 minutes per month to mobile destinations (as set out in clause 7.1).
7.3. Calls beginning with ‘03’ shall not exceed 15% of the total volume of calls to geographic numbers per use account. Any users exceeding the specified limit of ‘free calls’ usage will be subject to a ‘per minute’ charge for the total volume of calls per user account, in accordance with our existing IP rate card.
7.4. Calls to other mobile networks not set out in clause 7.1 are subject to our standard charges. This includes but is not limited to:
7.4.1. Calls exceeding the bundle allowances (as set out above or as specified in the Order Form) will be charged at our standard tariff rates;
7.4.2. F1 Chanel Isles Mobile;
7.4.3. FM other mobile networks; and
7.4.4. FW WiFi Services.
7.5. If call recording is stored on a remote server (Cloud-Based Storage System), storage capacity will be provided as set out in the Order Form.
Please refer to our Acceptable Use Policy (www.premierchoicegroup.com/acceptable-use) for bandwidth usage and call recording storage capacity including excessive usage information.
8. Your general obligations under the Agreement
8.1. You shall:
8.1.1. ensure that the terms and any other information contained in the Order Form are complete and accurate;
8.1.2. co-operate with us in all matters relating to the Services;
8.1.3. 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;
8.1.4. provide us with such information and materials as the we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.5. prepare your Premises for the supply of the Services;
8.1.6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.7. comply with all applicable laws, including health and safety laws;
8.1.8. keep all materials, Equipment, documents and other property which belongs to us (Our Materials) at your Premises in safe custody at your own risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation;
8.1.9. agree not to use or allow any other person to use any Equipment or Services we provide to communicate any material that is offensive, abusive, obscene, menacing, illegal or immoral, for hoax calls or spam communications or in any way which might, in our reasonable opinion, damage our reputation in any way;
8.1.10. comply with any Service Specific Terms as set out in the Order Form; and
8.1.11. comply with any policies which we communicate to you. Our current policies are available at www.premierchoicegroup.com/contract-terms-and-conditions.
8.2. If our performance of any of our obligations under the Agreement is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Customer Default):
8.2.1. without limiting or affecting any other right or remedy available to us, we shall 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 in each case to the extent the Customer Default prevents or delays the performance of any of our obligations;
8.2.2. we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from your failure or delay to perform any of your obligations as set out in this clause 8.2; and
8.2.3. 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.
8.3. You shall notify our service desk as soon as possible of any interruption, fault or error with any of our services in accordance with our Maintenance Policy (available at www.premierchoicegroup.com/maintenance as amended from time to time). We shall use reasonable endeavours to correct or cure any interruption, fault or error in accordance with our policy save that time shall not be of the essence. Our response times will be in line with the maintenance option as set out in the Order Form.
8.4. You must comply with our Acceptable Use Policy which is available at www.premierchoicegroup.com/acceptable-use as amended from time to time.
8.5. The terms of our Fraud Policy are incorporated into this Agreement and can be viewed at www.premierchoicegroup.com/fraud as amended from time to time. Your attention is particularly drawn to the terms of the policy and your responsibilities in preventing fraud being carried out by employees, agents or representatives acting on your behalf.
9. Charges and payment
9.1. The charges shall be calculated in accordance with the Order Form or otherwise agreed in writing.
9.2. You must pay our charges by the method of payment set out in the relevant invoice or Order Form. Payment by any other method may incur an additional charge and we reserve the right to refuse to accept it.
9.3. You must pay to us any deposit specified in the Order Form within 14 (fourteen) days of the date on which the Order Form was signed.
9.4. When we enter into this Agreement with you we base our charges on the information that you provide as to your anticipated use of the services. If your use falls below the level expected then we shall be entitled to charge you on the basis of the anticipated use rather than your actual use. Alternatively we may, at our discretion, terminate the Agreement if your use of the Services is below the expected use.
9.5. We reserve the right to increase the charges for any Services we provide to you under the Agreement on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index. This clause 9.5 does not apply to increases in relation to the maintenance charge, which is increased on an annual basis as set out in clause 6.16.
9.6. We may under this Agreement make one-off charges at any time after giving you 30 days’ notice in writing.
9.7. In the event that any Regulatory Change increases our costs of providing any services under this Agreement to you, we may increase the charges under this Agreement after giving you 30 days’ notice of our intention to do so. Any increase in charges under this clause 9.7 will not exceed the increase in our costs of providing Services to you. Any increase in charges will not entitle you to terminate this Agreement.
9.8. We may reduce our charges at any time without giving you notice and in the event that we do so this will not entitle you to end the Agreement.
9.9. You shall pay each invoice submitted by us:
9.9.1. within 14 days of the date of the invoice; and
9.9.2. in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence of the Agreement;
9.10. We will charge you a monthly charge of £3.00 if you do not pay by direct debit.
9.11. All amounts payable by you under the Agreement are exclusive of value added tax (VAT) unless it is expressly stated that VAT is included. You shall, on receipt of an invoice from us, pay to us any VAT which is chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
9.12. If you fail to make a payment due to us under the Agreement by the due date, then, without limiting our remedies under clause 15 (Termination), you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.12 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.13. All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Intellectual property rights
10.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.
10.2. We grant to you, or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Agreement to copy and modify the Deliverables (excluding materials provided by you) for the purpose of receiving and using the Services and the Deliverables in your business.
10.3. You shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4. You grant us a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by you to us for the term of the Agreement for the purpose of providing the Services to you.
11. Data protection and data processing
11.1. You and we acknowledge that for the purposes of the Data Protection Act 1998, you are the Data Controller and we are the data processor in respect of any Personal Data.
11.2. We shall process the Personal Data only in accordance with your instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by you.
11.3. You shall take reasonable steps to ensure the reliability of all your employees who have access to the Personal Data.
11.4. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
11.5. We warrant that, having regard to the state of technological development and the cost of implementing any measures, we will:
11.5.1. take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
126.96.36.199. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
188.8.131.52. the nature of the data to be protected; and
184.108.40.206. take reasonable steps to ensure compliance with those measures.
11.6. Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 11.
11.7. You acknowledge that we are reliant on you for direction as to the extent to which we are entitled to use and process the Personal Data. Consequently, we will not be liable for any claim brought by a Data Subject arising from any action or omission by us, to the extent that such action or omission resulted directly from your instructions.
11.8. We may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:
11.8.1. is on terms which are substantially the same as those set out in this Agreement; and
11.8.2. terminates automatically on termination of this Agreement for any reason.
12.1. Each party undertakes that it shall not at any time, and for a period of five years after termination of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2. Each party may disclose the other party’s confidential information:
12.2.1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
12.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
13. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1. Nothing in this Agreement shall limit or exclude your or our liability for:
13.1.1. death or personal injury caused by your or our negligence, or the negligence of our or your employees, agents or subcontractors;
13.1.2. fraud or fraudulent misrepresentation;
13.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
13.1.4. matters which cannot, by law, be restricted or excluded.
13.2. Subject to clause 13.1, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement whether or not that loss or damage could have been anticipated for:
13.2.1. loss of profits or revenue;
13.2.2. costs you incur either under this Agreement or otherwise as a result of any third party use of the Services or Equipment we provide whether or not you were aware of or authorised such use.
13.2.3. loss of sales or business;
13.2.4. business interruption or staff time;
13.2.5. loss of working time or expected savings;
13.2.6. loss of data;
13.2.7. loss of agreements, contracts or opportunities;
13.2.8. loss of anticipated savings;
13.2.9. loss of use or corruption of software, data or information;
13.2.10. liability to third parties;
13.2.11. loss of or damage to goodwill; and
13.2.12. any indirect or consequential loss.
13.3. Subject to clause 13.1,our total liability to you, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Agreement, during any Agreement Year your or our total liability to the other (with the exception of any charges due under the Agreement) will be limited to 100% of the total charges that you have paid to us during that Agreement Year.
13.4. The terms of our Fraud Policy are incorporated into this Agreement and can be viewed at www.premierchoicegroup.com/fraud Your attention is particularly drawn to the terms of the policy.
14. Suspension of Services
14.1 We reserve the right to suspend all or part of the Service:
14.1.1. if you fail to make any payment due to us under the Agreement when it becomes due;
14.1.2. we have reason to believe that the Services are being used fraudulently or for an illegal purpose by you or a third party;
14.1.3. if we are instructed to do so by the government, emergency service or regulatory authority;
14.1.4. if you have breached the Agreement; or
14.1.5. if there are any other circumstances which entitle us to terminate the Agreement.
14.2. If we suspend the Service in accordance with clause 14.1.1 then you will continue to be liable for all charges under the Agreement during the period in which the Service is suspended.
15.1 . Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving the other party not less than 90 days written notice, to expire no earlier than the day following the last day of the Initial Commitment Period or if the term is extended then the day following the last day of any Extended Term or further Extended Term to which it relates.
15.2. At the end of the Initial Commitment Period or any Extended Term:
15.2.1. If you have 10 Employees or fewer then we will write to you at least 8 weeks prior to the end of the Initial Commitment Period or Extended Term to ask you if you would like the Agreement to continue beyond the Initial Commitment Period or Extended Term. If we do not hear from you or you confirm that you do want the Agreement to continue beyond the Initial Commitment Period or Extended Term then the Agreement will continue for an Extended Term or further Extended Term of 12 months. During any Extended Term either party may terminate the Agreement by giving the other party not less than 90 days notice in writing, such notice to expire no earlier than the day following the last day of the Extended Term to which it relates;
15.2.2. if you have 11 Employees or more then the Agreement will automatically continue for an Extended Term or further Extended Term of 12 months. During any Extended Term either party may terminate the Agreement by giving the other party not less than 90 days notice in writing, such notice to expire no earlier than the day following the last day of the Extended Term to which it relates;
15.2.3. if you tell us in a valid written notice given more than 90 days before the end of the Initial Commitment Period that you do not want the Agreement to continue beyond the Initial Commitment Period then the Agreement will terminate on the day following the last day of the Initial Commitment Period; and
15.2.4. the Agreement will continue for successive Extended Terms unless notice is validly given in accordance with this clause 15.
15.3. Subject to clauses 15.1 to 15.2.4 (inclusive), if you terminate the Agreement in full or in part before the end of the Initial Commitment Period or the Extended Term then you must pay us a sum equal to the losses we incur as a result of your breach of the Agreement. We calculate our losses as the sum which we would have received from you from the date you terminate the Agreement until the end of the Initial Commitment Period or Extended Term with deductions in respect of any savings that we expect to make as a result of not providing Services to you. If it is not possible to determine our exact losses then we will calculate our losses based upon your previous usage. You and us confirm that these liquidated damages are reasonable and proportionate to protect our legitimate interest in performance.
15.4. If you terminate part of the Agreement only then clause 15.3 will apply in relation to the Services cancelled. You will remain liable to pay for any Services not cancelled and we may charge, at our discretion, a proportionate charge for the remaining Services. Alternatively we may, at our discretion, terminate the entire Agreement in the event that you terminate part of the Agreement.
15.5. If you terminate the Agreement other than in accordance with clause 15.1 or 15.2 then we reserve the right to charge you for any reasonable and proper costs we incur as a result of your cancellation. Any charge under this clause 15.5 is in addition to those under clause 15.3 and, if applicable, clause 15.4.
15.6. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
15.6.1. the other party commits a material breach of its obligations under the Agreement and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
15.6.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
15.6.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
15.6.4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; or
15.6.5. to allow customers the right to terminate their contract for a change with material detriment, which was missing from the previous version.
15.7. Without affecting any other right or remedy available to us, we may terminate the Agreement with immediate effect by giving written notice to you if:
15.7.1. you fail to pay any amount due under the Agreement on the due date for payment;
15.7.2. there is a change of control of you or your business; or
15.7.3. you have broken or we have reason to believe that you may be breaking any law in connection with your use of the Services.
15.8. Without affecting any other right or remedy available to us, we may suspend the supply of Services under the Agreement if you fail to pay any amount due under the Agreement on the due date for payment, you become subject to any of the events listed in clause 15.6.2 to clause 15.6.4 (inclusive), or we reasonably believe that you are about to become subject to any of them.
16. Consequences of termination
16.1. On termination of the Agreement:
16.1.1. you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services and Equipment supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
16.1.2. you will pay to us our termination charges on the same basis as is set out in Clause 15.3 to clause 15.5 hereof;
16.1.3. you shall return the Equipment which has not been fully paid for to any address we specify for the purpose of the return. If you fail to do so, then we may enter your Premises, take possession of the Equipment and charge an engineering call out fee. Until it has been returned, you shall be solely responsible for the safe keeping of the Equipment and will not use it for any purpose not connected with this Agreement.
16.2. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
16.3. Any provision of the Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
17. Force majeure
17.1. Neither party shall be in breach of the Agreement nor liable for delay in performing or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the circumstances beyond the control of either party continue for more than three months, either party may end the Agreement, without incurring any additional liability, by giving the other party notice in writing.
17.2. Circumstances beyond your or our reasonable control include acts of God, flood, drought, earthquake, natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotions or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations, nuclear or chemical or biological contamination, any law or action taken by a government or public authority (including without limitation imposing an export or import restriction, quota or prohibition), collapse of buildings, fire explosion or accident, industrial action or strikes, interruption or failure of utility service.
18.1. Assignment and other dealings
18.1.1. We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with this Agreement and any or all of our rights and obligations under this Agreement.
18.1.2. You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with this Agreement and any or all of your rights and obligations under this Agreement without our prior written consent.
18.2.1. Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Order Form.
18.2.2. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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 or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.
18.2.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
18.3.1. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.4. No partnership or agency
18.4.1. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.5. Entire agreement
18.5.1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.5.2. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Agreement.
18.5.3. Nothing in this clause shall limit or exclude any liability for fraud.
18.6. Third party rights
18.6.1. The Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
18.7.1. Subject to clause 18.7.2, no variation of the Agreement shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
18.7.2. We may change the Agreement by giving you not less than 30 days’ written notice. When any change is made we will notify you by publishing a notice or updating the Agreement on our website.
18.7.3. Where a change made under clause 18.7.2 is to your material detriment and is not required by law, you may terminate the Agreement in accordance with clause 15.6.
18.8.1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, 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 this Agreement.
18.8.2. If any provision or part provision of this Agreement is 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.
18.9.1. On termination of this Agreement, the following clauses shall continue in force: clause 12 (confidentiality) and clause 13 (limitation of liability).
18.9.2. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
18.10. Governing law
18.10.1. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
18.11.1. In the event of any dispute or complaint you must notify us in accordance with our Complaint Handling and Dispute Resolution Policy, which is available at www.premierchoicegroup.com/customer-complaints-code as amended from time to time.
18.12.1. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
19. Separately on our website along with these T&Cs we publish and policies on the following, which are incorporated into this Agreement. If we update our policies then once the policy is published on our website it will be incorporated into this Agreement and will replace the previous relevant policy. We will notify you when our policies are amended.
These Appendices also form part of the Premier Choice Welcome Pack
Website Terms and Conditions: www.premierchoicegroup.com/website-terms-and-conditions