INTERPRETATION AND DEFINITIONS
The following provisions shall have effect for the Interpretation of this Agreement;
Words denoting the singular number only shall include the plural and vice versa, words importing persons include bodies corporate and non-corporate.
The clause headings do not form part of this deed are for convenience only and shall not be taken into account in its construction or interpretation.
The ‘Act’ – the Communications Act 2003
‘Code’ – Any Code of Practice issued by Phone Pay Plus (or anybody that shall replace them and any other regulatory body approved by the Director General of Telecommunications) relevant to Services, that may be issued from time to time.
‘Email’ – Electronic Mail.
‘End User’ – users of the services provided by the Customer.
‘Equipment’ – the equipment and/or software related to products to be supplied by BeLogical under the contract as et out in the Customer Requirements Form.
‘Fraudulent Traffic’ – any traffic which BT plc or any Carrier that transmits traffic to BeLogical or BT plc is unable to bill or collect, where there is a reasonable expectation that the End User is not likely to pay their telephone bill, where calls are being made to inflate payments due from BeLogical, where the traffic being generated is likely to result in BeLogical incurring a loss in receiving this traffic, where the income received by BeLogical is less than the rate given to the Customer or where there is repeated or continuous calling from the same number.
‘Phonepay Plus’ – or any other independent body appointed to supervise and administer telephone information services, and is recognised by the Director General of Telecommunications (or any representative of OFCOM, or anybody that shall takes its place), as an appropriate body to apply and administer the Code.
‘Intellectual Property Rights’ – copyright, database right, patents, registered and unregistered design rights, registered and unregistered trademarks, and all other industrial or intellectual property rights or trade secrets existing at any time in any jurisdiction and all rights that shall apply to them.
‘Inbound Channels’ – Lines used to receive inbound calls to BeLogical network.
‘Interconnect Rates’ – Rates charged and paid by a Carrier (such as BT plc) to BeLogical for traffic it sends out or receives from or to the Carrier network.
‘Internet’ – Global telecommunications network.
‘Port’ – the transfer of a Service Number to a third party under the Telecommunications (Interconnection) Regulations 1997 (whereby, for explanatory purposes only, that other party provides services to the Customer in place of BeLogical ) and the words “Ports” and “Ported” shall be construed accordingly. ‘Rates’ – the rates specified in Annex I, and as varied from time to time, which are the rates per minute payable by either party, and these rates are exclusive of value added tax.
‘Report’ – the monthly call statement, produced by BeLogical showing call minutes produced on Service Numbers allocated to the Customer.
‘Service Numbers’ – Numbers allocated to the customer from time to time, over whom the Customer shall not acquire any right, title or interest and ‘Service Number’ shall be construed accordingly.
‘Site’ – Location where services are provided.
2. FORMATION OF CONTRACT
2.1 Any error, omission or typographical error in any quotation, offer, sales information, invoice, or document supplied by BeLogical shall be subject to correction without liability.
2.2 BeLogical may vary any provision in this Agreement, without prior consent from the Customer, if such change is required because of regulatory, insurance, safety or statutory changes made after the date of this Agreement. BeLogical shall in such circumstances give the Customer 30 days notice of such changes. The Customer shall have the right by giving notice in writing to BeLogical to terminate this Agreement, within 14 days of receiving such notice. This Agreement would then be terminated within 30 days of such notification, or on a later date specified by the Customer.
2.3 Save as provided in these terms and conditions BeLogical shall provide the Customer with such Services and Equipment as are requested by the Customer and any use of the Services or payment for the Services is deemed acceptance of these terms and conditions including and not restricted to price changes, contract terms and customer company name changes.
3. RESPONSIBILITIES AND OBLIGATIONS
3.1 BeLogical shall provide the Customer with network service and Service Numbers, but notwithstanding this BeLogical is not obliged to supply Service Numbers requested by the Customer. It may also change numbers supplied to the Customer if this is required for regulatory, statutory or legal reason, and in such instance shall notify the Customer as soon as is reasonably practical.
3.1.1 BeLogical shall maintain equipment suitable for handling and terminating calls.
3.1.2 BeLogical shall notify the Customer as soon as reasonably practicable, of any changes in rates payable, or modification to the service offered.
3.1.3 BeLogical shall provide the Customer with reasonable technical and sales support, which BeLogical in its sole discretion shall consider necessary and appropriate.
3.1.4 BeLogical may from time to time make changes to equipment used to handle calls and provide the service. Such changes are at the sole discretion of BeLogical, and may be made without prior consent from the Customer.
3.2.1 The Customer shall abide by this Agreement.
3.2.2 The Customer shall ensure that they have all necessary approvals, permissions or authorisations for the services operated through BeLogical including those offered to its End Users. The Customer shall be responsible for the content, quality and delivery of services offered, and for ensuring that these services comply with the Code, Act and this Agreement. BeLogical may recover from the Customer all fines, claims or administrative expenses resulting charged by Phonepay Plus (or any other regulatory body approved by Ofcom), resulting from a breach of the Code.
3.2.3 The Customer shall provide BeLogical on request with information or material regarding the service operated through BeLogical, including those offered to its End Users or agents upon and to the extent of any request made by BeLogical.
3.2.4 The Customer shall ensure that services provided are not used for any unlawful purpose whatsoever including the transmission or offering of any information or services which are unlawful, abusive, harmful, threatening, defamatory, or which in any way infringe copyright, intellectual property rights, trademarks, or which is pornography, or any other material that may cause offence in any way
3.2.5 The Customer specifically agrees to indemnify BeLogical against all costs and liabilities arising out of all claims which result from, or involve an allegation of, any breach of clauses.
3.2.6 The Customer shall co-operate with BeLogical in relation to any complaints, enquiries or investigations regarding services offered by the Customer. The Customer shall, at the discretion of BeLogical , without limitation bear in full any costs associated with such complaints, investigations, or enquiries or any action whether or not bought by or against BeLogical
3.2.7 The Customer shall ensure that any third party using its facilities shall be bound by the terms of this Agreement.
3.2.8 The Customer is responsible for ensuring that no third party intellectual property right is infringed by its choice of telephone number for a particular service and indemnifies BeLogical against all costs and liabilities arising out of a breach or allegation of a breach of any such third party’s intellectual property rights.
4.1 This Agreement represents the entire understanding between the two parties. No other prior arrangements, representations or understandings, orally or in writing have any validity.
4.2 BeLogical rights and powers under this Agreement are not affected if it fails to or chooses not to enforce any of them at any time. If any part of this Agreement is not enforceable it will not affect the remainder.
4.3 The parties must notify each other in writing of any change of address. All notices sent by first class post to the registered office of either party, or any address detailed in this Agreement, are deemed to have been properly served on the third day after posting.
4.4 Neither party shall be deemed to be in breach of this Agreement for any failure in performance caused by events outside of its reasonable control, to include, but not limited to any act of God, inclement weather, shortage of power, flood, drought, lightning, fire, lock-out, trade dispute, labour disturbance, act or omission of Government highway authorities, or telecommunication operators or other authority, war, military operations, or riot.
4.5 English Law applies to this agreement. Both parties hereby submit to the exclusive jurisdiction of the English Courts.
4.6 Both parties agree that they have no joint venture, partnership, or agency relationship as a result of this Agreement. Neither party shall make any offer, guarantee, or warranty to any third party, in regard to the services, that purports to bind the other party.
4.7 The Customer agrees that in the event that the Customer resells or provides BeLogical services to an End-user, the agreement and terms between the Customer and the End-user shall mirror the agreement and terms that BeLogical has with the Customer.
5. ASSIGNMENT & NOVATION
5.1 The Customer shall not assign the rights and obligations of this Agreement to any other party without the express permission in writing of BeLogical, which BeLogical may or may not grant at its sole discretion.
5.2 BeLogical may assign the rights and obligation of this Agreement to any third party without the prior consent of the Customer.
5.3 In conformity with the requirement set out in paragraph 2.3.2b of the 11th Edition of the PhonePay Plus Code of Practice, the parties do hereby agree that for the purpose of Section 1 of the Contracts (Rights of 3rd Parties) Act 1999, Phonepay Plus may in its own right enforce any term of this Agreement and have the powers of enforcement provided by Clause 1(5) thereof.
6. PROVISION OF SERVICES AND WARRANTEES
6.1 BeLogical cannot guarantee to provide a fault free service. BeLogical makes no warranty that its network or services shall be continuous, or will be free from faults. BeLogical will, however, take reasonable steps to ensure its network and services are fault free, and that service is uninterrupted.
6.2 Notwithstanding clause 6.1, BeLogical gives no warranty or guarantee that the service is satisfactory or suitable for the Customer’s purposes, or that service shall be uninterrupted or fault free. All warranties relating to the service from BeLogical are excluded, even if implied by statute.
6.3 The parties acknowledge that no representations, warranties or statements made prior to concluding this Agreement forms any part of the contract, nor has induced the either party.
6.4 The Customer acknowledges that:
6.4.1 The service provided by BeLogical was not designed solely for the Customer’s individual requirements, and it is up to the Customer to decide if the service provided by BeLogical is of satisfactory quality and fit for the purpose for which it is used;
6.4.2 BeLogical is reliant on a third party for delivery of Inbound Channels, and therefore BeLogical can have no liability of whatever nature for any delay in provision of the same, moreover BeLogical makes no warranty that its network or services shall be continuous, or will be free from faults.
6.4.3 In the event that the Customer wishes to provide its own equipment, or provide leased lines to connect to its equipment, this shall require the prior consent of BeLogical, and mutual agreement of charges that the Customer shall pay to BeLogical, the Customer is solely responsible for any costs, without limitation, to include, the installation, delivery and maintenance of the same, and BeLogical can have no liability whatsoever for any lines or equipment provided at the Site by the Customer.
6.5 The Customer Requirements Form constitutes the Customer’s offer to BeLogical to purchase the relevant Equipment and/or Services on and subject to the terms of the Order Form, these Conditions, any other Service Specific Conditions and/or Promotional Terms referred to as being applicable. Once such offer is accepted by an authorised representative of BeLogical on receiving the Customer Requirements Form signed by the Customer, a Contract shall come into effect
6.6 Any savings quoted are estimates and illustrative only. All documents containing such illustrative or descriptive material (as well as the copyright therein) shall remain the exclusive property of the Company and must not be copied or loaned or transferred. The Customer acknowledges and agrees that in entering into the Contract, it has not relied on any such illustrations, samples or descriptive material.
6.7 The Customer shall be responsible for providing the Company with all information relevant to the supply of the Equipment and the provision of Services (as the case may be) within sufficient time to enable BeLogical to duly perform the Contract.
6.7.1 Without limitation to the generality of condition 6.7, the Customer shall be responsible for ensuring that the details set out on the Customer Requirements Form and any drawings, sketches, specifications, descriptions or other instructions supplied by the Customer or any agent or representative of the Customer in connection with the supply of any Equipment or the supply of any Services (as the case may be) by BeLogical are accurate and fully describe the Customer’s requirements and the Customer shall be liable in respect of any liability, loss, injury, damage, demand, claim, cost charge or expense which may be incurred or sustained by BeLogical by reason of or arising directly or indirectly out of or in respect of any inaccuracy in respect of any such drawings, sketches, specifications, descriptions or other instructions in relation thereto, or where the compliance with any such any drawings, sketches, specifications, descriptions or other instructions by BeLogical constitutes the infringement of the intellectual property or other rights of another person.
6.8 The Customer shall be responsible for providing BeLogical with any necessary instructions for delivery of the Equipment within a reasonable period prior to the estimated delivery date advised by BeLogical to the Customer.
6.8.1 If the Customer fails to take delivery of the Equipment or if by reason of instructions or lack of instructions from the Customer the delivery of any Equipment in accordance with the Contract is delayed for more than twenty-eight days after BeLogical has given notice in writing to the Customer that the Equipment is ready for delivery the Equipment shall be deemed to have been Delivered in accordance with the Contract and thereafter the Equipment shall be deemed to be at the risk of the Customer. The Customer shall pay to BeLogical the reasonable costs of storing, protecting and preserving such Equipment after the expiry of such period of twenty-eight days.
6.8.2 Payment shall be made by the Customer to BeLogical of the balance of the Price agreed on the Customer Requirements Form within seven days of such deemed delivery date.
6.9 The Customer shall prepare the Site(s) in accordance with BeLogical’s instructions so that any necessary Equipment can be installed. The Customer will meet the costs of preparing the Site(s).
6.9.1 The Equipment shall be at the Customer’s risk from the moment of Delivery or deemed Delivery whether or not property in the Equipment has passed or payment or part payment made therefore, and thereafter the Customer shall be responsible for insuring the Equipment.
6.9.2 Notwithstanding Delivery and the passing of risk, the property and the legal and beneficial title in the Equipment supplied under the Contract shall not pass to the Customer until BeLogical has received in cash or cleared funds payment in full of all sums due for the Equipment and Installation Services (where applicable) and all other equipment and/or services agreed to be sold by BeLogical to the Customer for which payment is then due.
6.10 The Fixed Network Services will commence on the Connection Date and continue for the Minimum Term as set out in the Customer Requirements Form.
6.10.1 Upon the expiry of the Minimum Term, or any anniversary thereafter, the Contract will renew automatically for further periods of twelve months.
6.10.2 The Customer may terminate the Contract by giving 30 days’ notice in writing to BeLogical, such notice to become effective no earlier than the day after the last day of the Minimum Term or upon each anniversary of such date thereafter (as applicable).
6.10.3 Any Contract for Fixed Network Services based on an order which is accepted by BeLogical is (prior to the Connection Date) conditional on the following:
(a) BeLogical carrying out a survey which reveals to BeLogical’s satisfaction that it is possible for BeLogical to supply the Fixed Network Services and that any details or information used by BeLogical to determine the Charges applicable or any other terms of the Contract, whether supplied by the Customer or otherwise, are accurate and not misleading. The Charges may change depending on the results of such survey;
(b) that the relevant Fixed Network Services can be provided, and BeLogical makes no warranty that the Fixed Network Services can be provided until lines have been installed and are operational; and
(c) the provision by BeLogical of confirmation by email to the Customer that the terms stated on the Quote Order Form of the applicable Contract for Fixed Network Services do not contain any errors or omissions.
6.10.4 The Customer hereby acknowledges and accepts any new telephone numbers provided to the Customer under the Contract, prior to their connection, cannot be guaranteed as available and therefore BeLogical shall not be liable for any costs incurred by the Customer in the use of any such telephone number (including, without limitation, in the advertising of such telephone number).
6.10.5 The Customer acknowledges that the speed of any broadband element (if any) of the Fixed Network Services depends on a number of factors including, but not limited to, distance from the exchange, local availability and line test. BeLogical gives no warranty or guarantee that the Customer’s line(s) will produce top speeds of up to the maximum speed advertised, (as the final speed is governed by factors that are beyond BeLogical’s reasonable control).
6.10.6 The Customer acknowledges that, in order to use the broadband element (if any) of the Fixed Network Services, the Customer needs an existing telephone line (if not provided under the Contract).
6.11 Where the transfer of lines and services from third party suppliers is selected by the Customer in the Customer Requirements Form, then the provision of any and all relevant existing services supplied to the Customer by such third party supplier will be automatically transferred to BeLogical and charged for in the BeLogical’s invoices in accordance with the Tariff.
6.11.1 The Customer hereby acknowledges and accepts that it is the Customer and not BeLogical who is liable for any charges (including without limitation any early termination charges) made by third party suppliers for any transfer of lines and services or otherwise, unless it is clearly identified and agreed in writing on the Customer Requirements Form at the time of BeLogical formally accepting such Customer Requirements Form that BeLogical will pay for specified charges.
6.11.2 If the Customer is migrating to the broadband element of the Fixed Network Services from a third party provider of an alternative broadband service, the Customer will need to obtain a Migration Authorisation Code (“MAC”) from that service provider. This MAC will be valid for thirty days from the date of issue and can only be used once. It is the Customer’s responsibility to obtain this code and to ensure that the Customer provides it to BeLogical in sufficient time to process the Customer’s migration. BeLogical will not be responsible for any delay, costs, expenses, loss or damage arising to or incurred by the Customer through failure to connect the Customer to the broadband element of the Fixed Network Services as a result of the Customer’s failure to provide the MAC as required by this condition.
6.12 Any Contract for VOIP services which results from an order accepted by BeLogical, is conditional on the Customer acknowledging and accepting that:
(a) the VOIP service may not offer all the features or resilience the Customer may expect from a conventional phone line; and
(b) the VOIP service may sometimes be limited, unavailable or disrupted due to events beyond BeLogical’s control e.g. power disruptions, failures or the quality of any connection;
(c) wherever possible, alternative arrangements should be made by the Customer such as fail-over services provided by BeLogical.;
(d) if the Customer uses the VOIP service to make Emergency Calls, the location information received by the emergency services will be limited to the installation address of the Site, which may not be the location from which the call originated;
(e) Emergency Calls made using the VOIP service may fail if there is a power failure or connection failure;
(f) the ability for the Customer to make Emergency Calls cannot be guaranteed;
(g) it will not be possible to make Emergency Calls if the Company has suspended or interrupted the VOIP service for any reason;
(h) the Customer shall be required to provide/confirm his location when making a VoIP originated Emergency Call to enable the correct emergency organisation to respond.
6.13 SITE: To enable BeLogical to fulfil any obligations under any Contract:
6.13.1 the Customer shall permit or procure permission for BeLogical and any other person(s) authorised by BeLogical to have reasonable access to the Customer’s Sites, Equipment and any other relevant telephone system and other equipment and shall provide such reasonable assistance as BeLogical’s requests.
6.13.2 BeLogical will normally carry out work by appointment and during Normal Working Hours but may request the Customer to (and the Customer shall) provide access at other times. In the event that the Customer cancels, reschedules or misses any pre-arranged appointment, it shall be liable to BeLogical for any costs and expenses which BeLogical incurs as a result of such cancellation, rescheduling and/or missed appointment.
6.13.3 At the Customer’s request, BeLogical may agree (at its sole discretion) to work outside Normal Working Hours and the Customer shall pay BeLogical’s reasonable charges for complying with such a request.
6.13.4 The Customer warrants, represents and undertakes that it has adequate health and safety provisions in place at its Sites.
6.13.5 The Customer shall procure all consents, licences and permissions necessary from landlords or other third parties for the carrying out of preparation work, installation of Equipment and for the provision, use and operation of the Equipment and/or Services at the Sites (save to the extent BeLogical has agreed in writing to do it).
6.13.6 In the event that the Customer is not able to procure the necessary consent to provide the Services within ninety days from the Connection Date, BeLogical will be able to terminate the Contract forthwith by giving the Customer written notice without any liability. If the Customer has not managed to procure the necessary consents and BeLogical has commenced work, BeLogical may ask the Customer who shall, on request by BeLogical, refund to BeLogical the cost of all such work (including, without limitation, staff costs and equipment costs) at its then current rates.
6.13.7 The Customer is responsible for making the Site good after any work undertaken by BeLogical at a Site, including without limitation replacing and re-siting items and for re-decorating.
6.13.8 If the new installation involves the visit of an engineer to facilitate the new installation, the Customer will be responsible for the costs incurred by BeLogical for the appointment of the engineer.
6.14 DISCONTINUED SERVICES: BeLogical shall have the right to discontinue the Maintenance Services in respect of specified Equipment in the event that BeLogical’s supplier and/or the manufacturer has ceased to supply such Equipment, provided that BeLogical shall notify the Customer as soon as reasonably practical after it is aware of any cessation in supply of the Equipment and shall arrange with the Customer to either terminate the Contract or replace or upgrade the affected Equipment at the Customer’s expense.
6.14.1 BeLogical shall have the right to terminate forthwith the supply of the Maintenance Services (without further liability to the Customer) in the event that any necessary approvals required by BeLogical to maintain any of the Equipment are disallowed or revoked by any government or regulatory agencies or any third party.
6.14.2 The Customer undertakes that:
(a) it shall ensure that the Equipment is used in a normal and proper manner;
(b) it will carry out such routine day-to-day preventive maintenance measures as may be recommended in the customer operating instructions and manufacturer’s written recommendations supplied with the Equipment;
(c) it will carry out minor maintenance adjustments suggested by BeLogical which includes minor programming changes with telephone support and replacement of handsets and cords which are relayed by courier or post;
(d) it will not employ or permit a third party to make any alterations to the programming or physical structure of the Equipment;
(e) it will ensure that the environmental conditions for the Equipment are maintained in accordance with the User Instructions;
7. RATES, PAYMENTS AND CHARGES
7.1 Payments shall be made as follows:
7.1.1 Each party shall pay to each other for call minutes generated, according to the Rates (detailed in the Customer Requirements Form) the total amount of which will be set out in the monthly Report. The rates for inbound traffic represent the Interconnect Rates BeLogical receives from BT plc.
7.2 BeLogical may at any time vary the Rates detailed in the Customer Requirements Form, in the event that BT plc alters the rates paid to BeLogical , but shall give the Customer 30 days written notice of such change.
7.3 If payment of any sum payable to BeLogical by the Customer is not made on or before the due date, BeLogical shall be entitled to charge interest thereafter on such sum at either the rate of four per cent per annum above the current base rate of The Bank of England from time to time or, if higher, such rate as BeLogical would be entitled to claim under the Late Payment of Commercial Debts (Interest) Act 1998 (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date until the date of payment whether before or after judgment.
7.4 BeLogical shall send the Customer a monthly invoice no later than the 28th day of the month after the end of the month in which the traffic was generated. The Customer must, send BeLogical an invoice for the amount detailed in the Report, no later than 30 days from the end of the month in which the traffic was generated. The Customer shall make payment to the BeLogical within 14 days from the date of the Invoice in which the traffic was generated. If the Customer fails to pay an invoice within 14 days of the invoice date, BeLogical may delay, at its sole discretion cease the customers service with immediate effect.
7.5 All rates detailed in the Customer Requirements Form shall be exclusive of all taxes or duties.
7.6 In the event that OFCOM, or any other regulatory body, or BT plc or any other Carrier with which BeLogical contracts make retrospective price adjustments to revenues paid to BeLogical which result in BeLogical having overpaid the Customer, then BeLogical at its sole discretion and without prejudice to BeLogical rights to re-claim such overpayment from the Customer, may deduct from subsequent payments to the Customer, sufficient revenues to reflect the sums overpaid to the Customer.
7.7 The Customer’s Call Minutes shall be calculated according to data logged by BeLogical which shall be accepted, except in the case of manifest error, as being conclusive for the determination of revenues due to the Customer.
7.8 BeLogical shall not accept any claims for compensation for Fraudulent Traffic from the customer;
7.8.1 Where there has been Fraudulent Traffic, and it shall be accepted that BeLogical decision (at its sole discretion) shall be final and binding.
7.8.2 Where BT plc, and any other Carrier with which BeLogical does business with, charge BeLogical for traffic generated and therefore the customer is liable for fees at the rates set out on the Customer agreement form.
7.9 BeLogical may deduct any sum owed to BeLogical by the Customer, from any sum due to Customer. BeLogical may on direction from any regulatory or governmental body, withhold any sum owed to the Customer to cover fines, claims or administrative expenses due to any person from the Customer under this Agreement or otherwise.
7.10 BeLogical reserves the right to reclaim and terminate the provision of services through any Service Number that produces less than 25 minutes per month for four consecutive months. Such numbers shall be reclaimed and the service terminated upon BeLogical giving the Customer 14 days notice.
7.11 If during or after the period while this Agreement remains in force, the Customer Ports any of BeLogical numbers, then the Customer shall pay BeLogical such sums as are reasonably required by BeLogical to replace the switching capacity utilised in BeLogical network by the use of such Ported numbers. The Customer shall, without prejudice to the foregoing, replace such Ported BeLogical numbers, with numbers that do not utilise the BeLogical network, as soon as is technically and commercially practical after BeLogical Ports such telephone numbers and in any event within 7 days of any request from BeLogical.
7.12 EQUIPMENT: The Price is as stated on the Customer Requirements Form and is exclusive of VAT or any other tax or duty payable. The amount of such taxes or duties shall be added to the Price and shall be payable by the Customer in the same manner as the Price. Any invoices issued by BeLogical in respect of the Price shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
7.12.1 Unless otherwise specified the Price is based on the assumption that the Delivery of the Equipment and (where applicable) Installation Services will be completed in one continuous visit to the site agreed with the Customer and accordingly BeLogical may at its discretion at any time increase the Price to take account of any additional costs to BeLogical (including but not limited to storage and delivery costs) by reason of Delivery and/or the Installation Services taking more than one visit.
7.13 FIXED NETWORK SERVICES: The Charges will be as detailed in the Tariff or unless, and as, stated on the Customer Requirements Form.
7.13.1 BeLogical shall have the right to alter the Charges from time to time by publishing changes to the Tariff at www.belogicalltd.co.uk (or at such other URL as is notified to the Customer by BeLogical from time to time) and such changes shall take effect;
(a) no earlier than thirty days after such publication in the event of changes which may be of material detriment to the Customer; and
(b) no earlier than one day after such publication for all other changes,
7.13.2 and if the Customer wishes to object to any proposed change which is of material detriment to the Customer, then the Customer must notify BeLogical in writing (addressed to Customer Services, BeLogical UK Limited, Offices 1,2 & 3 Damhouse, Astley Hall Drive, Astley, M29 7TX within thirty days of publication of the proposed change, otherwise the Customer will be deemed to have accepted the proposed change. For the avoidance of doubt, the service by BeLogical of any notice in accordance with condition 13.2.2(a) shall not constitute either acceptance of or an admission by BeLogical that any proposed change is of material detriment to the Customer, nor shall the service of notice by the Customer under this condition constitute or be deemed to constitute evidence that the relevant change is of material detriment to the Customer.
7.13.3 Usage charges payable shall be calculated by reference to data recorded or logged by BeLogical and not by reference to any data recorded or logged by the Customer. Any invoices issued by BeLogical in respect of the Charges for Fixed Network Services shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
7.13.4 Line rental is payable from the Connection Date.
7.14 MAINTENANCE SERVICES: The Customer shall pay to BeLogical the Monthly Support Care Level Charge agreed on the Customer Requirements Form. Any invoices issued by BeLogical in respect of the Charges for Maintenance Services shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
8.3.2 BeLogical shall have the right to alter the Monthly Support Care Level Charge from time to time by giving the Customer not less than fourteen days’ notice.
7.14.1 VALUE ADDED TAX: All sums referred to under these Conditions, the Quote, the Order Form, any Promotional Terms and any Service Specific Conditions are (unless otherwise stated) exclusive of Value Added Tax (VAT) and any taxes of a similar nature which may from time to time be introduced, which will be payable at the rates ruling at the date of the relevant invoice.
7.15 EQUIPMENT: A deposit equal to at least 50% of the total Price is payable by the Customer at the time of the placing of the relevant order. The balance of the Price is payable immediately upon completion of Delivery
7.16 FIXED NETWORK SERVICES: The Customer shall be invoiced monthly by BeLogical and shall pay the Charges by Direct Debit within ten days of the date of the invoice (unless otherwise expressly agreed with BeLogical and set out on the Customer Requirements Form).
7.16.1 Line rental is payable monthly in advance, unless expressly agreed in writing by BeLogical.
7.17 MAINTENANCE SERVICES: Unless otherwise agreed, the Customer will pay the Monthly Support Care Level Charge to BeLogical by Direct Debit (to such account as BeLogical may designate for that purpose) in advance .
7.18 Unless e-billing is expressly not required on the Customer Requirements Form, invoices will be made sent by email to the Customer and the Customer at the e-mail address set out on the Customer Requirements Form. Where e-billing is expressly not required on the Customer Requirements Form, the invoice may be sent to the registered address of the Customer (or the address of the Customer) at an additional cost of £5.00 per invoice to the Customer.
7.19 If BeLogical is unable, for whatever reason, to recover any sum due under the Customer’s account within four days following the due date for payment, BeLogical reserves the right to forthwith suspend all or any of the Services.
7.20 If the Customer’s account remains unpaid (in any part) BeLogical may require a security deposit of three times the average monthly invoice or payment in full for the next twelve months before BeLogical will reinstate the Service.
7.21 If the Customer’s account remains unpaid (in any part) for a period of thirty days after the original due date for payment, the Services may then be terminated by BeLogical.
7.22 Without prejudice to BeLogical’s other remedies, if the Customer’s account remains outstanding for any reason after the original due date for payment, then:
7.22.1 the Customer will be charged an administration fee for each piece of correspondence in connection with the recovery of the overdue amount. BeLogical may also charge the Customer a fee where it suspends a Fixed Network Service for non-payment; and
7.22.2 BeLogical reserves the right to refer the outstanding account to a debt collection agency. If BeLogical instructs a debt collection agency to collect payment (including interest and late payment charges) on its behalf the Customer must pay BeLogical’s costs payable to the agency, who will add the sum to the Customer’s outstanding debt.
7.23 The Customer will ensure that the name of the account holder is the same as the name on the payment details provided.
7.24 If the Customer cancels an active Direct Debit instruction once a Contract has commenced, an additional administration fee will be added to the monthly invoice of £10.00 (or such other amount as may be notified to the Customer by BeLogical from time to time) until the Direct Debit is reinstated. BeLogical also reserves the right to charge the Customer a Direct Debit cancellation fee at its then applicable rate.
7.25 BeLogical may, without notice, withhold any payments due to the Customer under the Contract or any other agreement between BeLogical or any other member of its Group and the Customer if:
7.25.1 BeLogical has reason to believe the Customer is in breach of the Contract; and/or
7.25.2 the Customer is (or BeLogical reasonably believes that the Customer is) conducting its business or using a Service illegally or unlawfully (including without limitation in breach of the Code or any OFCOM requirements) or for an illegal or unlawful purpose; and/or
7.25.3 BeLogical has received notice from another network operator that payment will be withheld in respect of calls and BeLogical has satisfied itself on reasonable grounds that such event has occurred. The Customer will not be entitled to any payment of Call Commission in respect of such calls.
7.26 If any sum owed by the Customer to BeLogical under the Contract or any other contract with BeLogical is not paid by the due date, BeLogical may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with BeLogical.
7.27 Payment of all sums due to BeLogical shall be made without any set-off whatsoever.
7.28 If the Customer intends to dispute any charge on an invoice, the Customer must do so in writing to BeLogical within fourteen days of the date of the invoice and provide BeLogical with all relevant information in support of the disputed charge.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights owned by one party shall remain vested in such party, and for clarity, and avoidance of doubt;
8.1.1 The Intellectual Property Rights of the Service Numbers shall be vested in BeLogical;
8.1.2 Equipment provided at the Site, unless purchased by the Customer, all rights of any nature, trade name, documents, drawings and information including any access codes provided to the Customer, and information in BeLogical database accessed by the End Users and the Customer remain vested in BeLogical;
8.1.3 Information provided to the Customer by BeLogical pursuant to this Agreement, pertaining to the Customer’s End Users is the property of the Customer.
8.2 The Customer shall not use BeLogical name, trademarks, or copyrights in any way that implies any approval or connection with the services or products offered by the Customer.
9. CONFIDENTIALITY AND USE OF CUSTOMER’S INFORMATION AND DATA FAIR PROCESSING NOTICE
9.1 During and after the period while this Agreement remains in force, both parties shall not disclose to any third party the information gained in connection with this Agreement, nor the terms and payments due, but each parties may disclose to its officers and employees such information as may be required for them to fulfil their proper performance of their duties, and may be used in the proper exercise of its rights and obligations under this Agreement.
9.2 The obligations of confidence, and restrictions on disclosure shall not apply in the following circumstances;
9.2.1 Where such information was already known prior to this Agreement;
9.2.2 Where such information was already in the public domain, save as a result of a breach of Clause 9.1.;
9.2.3 Where a third party, who did obtain the same from the disclosing party, disclosed such information to it lawfully; or
9.2.4 Where disclosure is required by law.
9.3 The Customer shall ensure that the confidentiality provisions of this Agreement bind all its employees and agents and shall indemnify BeLogical against loss or damage suffered as a result of a breach of confidence by employees or agents.
9.4 BeLogical shall have the unconditional and irrevocable right to disclose the identity of the Customer and any End User in the event of any complaint received from any regulatory or governmental body, Phonepay Plus or BT plc.
9.5 The Customer acknowledges and agrees that BeLogical may use Personal Data (as defined within the Data Protection Act 1998) and/or confidential information obtained from the Customer during or following the completion of the Customer Requirements Form or as a result of the Customer’s use of the Equipment or Services and/or arising from or out of the provision of the Equipment or Services, for the following purposes:
9.5.1 administering the Customer’s account
9.5.2 notifying the Customer of changes to the Service, including (without limitation and unless stated otherwise on the Quote Order Form) contacting the Customer regarding potential and/or actual enhancements to or offers in relation to the Service;
9.5.3 enabling the Company to supply the Service and Equipment to the Customer;
9.5.4 and for invoicing purposes.
9.6 BeLogical will not pass Personal Data obtained from the Customer to any third parties for marketing purposes but may send the Customer information about BeLogical’s (or any member of its Group) own products and services which it considers may be of interest to the Customer, unless the Customer specifically requests in writing that BeLogical does not do so on the Customer Requirements Form.
9.7 If the Customer wishes to have details of any credit reference or fraud prevention agencies BeLogical uses to obtain information about the Customer, or receive a copy of the information BeLogical holds about them, it may do so by submitting a request in writing for a copy of the information to BeLogical’s Data Controller at: BeLogical UK Limited, Charter House, Latham Close, Bredbury, Cheshire, SK6 2SD, stating the Customer’s full name, address, account number and phone number. BeLogical may charge a reasonable administration fee for providing such information and BeLogical may require proof of identification before releasing any information.
9.8 The Customer warrants, undertakes and agrees that it will grant or procure from its employees and other personnel such consents to the use of Personal Data (referred to above) as may be necessary to enable BeLogical to use such data for the purposes described in these conditions.
10. LIMITATION OF LIABILITY
10.1 BeLogical shall not be liable for any indirect, incidental, special or consequential damages or for interrupted communications, lost data, or loss of profit, or economic loss arising out of or in connection with this Agreement and in particular shall not be liable for any delay in rectification of any such problem
10.2 BeLogical shall not be liable for negligence except for death or personal injury caused by its negligence or that of its officers or employees
10.3 Except as otherwise stated the Customer’s sole remedy for any breach of this agreement, shall at BeLogical ’s sole discretion be;
10.3.1 Correction in a reasonable timescale of any fault;
10.3.2 Replacement of service supplied.
10.4 Direct damages caused as a result of BeLogical breaches of this Agreement shall in any event be limited to the previous 1 months revenue generated by the Customer, and received by BeLogical, but in no event shall exceed for £20,000 for any one event or series of events.
10.5 BeLogical shall not be liable for any interruption, delay or failure in service resulting from matters outside its control including but not limited to: acts of god, war, strikes, government action, fire, flood, embargoes, termination of or refusal to grant a licence, storm, riot, power failure, damage to or loss of its equipment or interruption, failure or delay in any service provided to BeLogical by any third party. In such an event, the Customer may still exercise its rights of termination set out in this agreement.
10.6 BeLogical shall have no liability to the Customer in respect of any demand or claim where;
10.6.1 The demand or claim arises as a result of the Customer’s negligence, misconduct or breach of this Agreement;
10.6.2 If the Customer does not immediately notify BeLogical of any claim;
10.6.3 If the Customer does not give BeLogical full authority to deal with the claim, or does not provide information and cooperation for BeLogical to defend the claim.
10.7 LIABILITY FOR REPLACEMENT OR REPAIR: Subject to the following sub-conditions of this condition, BeLogical shall, for a period of twelve months from the date of Delivery or Installation (where applicable) whichever is the later event, at its option and without cost to the Customer either repair or replace any defective Equipment to make good any defect which shall be proved to the satisfaction of BeLogical to be the result of faulty design, materials or manufacture or Installation (only where BeLogical supplies Installation Services under the Contract) provided that BeLogical shall have no liability for any such defects unless the Customer notifies BeLogical, within three Business Days from Delivery or Installation (where applicable) whichever is the later event, of any defect arising prior to and/or on Delivery or Installation (as the case may be) and within twenty four hours of any latent defect arising within such twelve month period.
10.7.1 The liability of BeLogical shall apply only to defects that appear under proper use and under conditions of operation not more onerous than those declared to BeLogical by the Customer prior to entering into the Contract, and in particular shall not apply to defects which arise from the neglect, misuse, or faulty maintenance of the Customer or any of its other contractors, or from alterations carried out without the prior written consent of BeLogical or from repairs carried out improperly by the Customer or its servants or agents or arising from normal wear and tear.
10.7.2 Any repaired or new parts provided by BeLogical under this condition will be delivered by BeLogical to the Customer free of charge. Any Equipment (or part) which has been returned to BeLogical and replaced by BeLogical shall become the property of BeLogical.
10.7.3 BeLogical reserves the right to charge on a market value basis for the costs of repairs and/or call-outs where the damage has resulted from misuse or unauthorised repair or alteration of the Equipment by the Customer, or from normal wear and tear.
11.1 Without prejudice to any other indemnity referred to in this or any other Agreement, the Customer agrees to indemnify BeLogical and its parent, subsidiaries, affiliates, officers and employees against any claim or demand, including any made by a third party, arising out of the Customer’s or End User’s use of the service and all costs relating thereto. The Customer agrees not to hold BeLogical and its parent, subsidiaries, affiliates, officers and employees responsible for any direct or indirect damage resulting from the use of BeLogical software or services, in particular, but not limited to; the use or impossibility to use the Service, confidence in information obtained, errors and omissions, defects, viruses, delay in transmission, interruption of service or loss of data.
11.2 The Customer agrees to indemnify BeLogical , and its parent, subsidiaries, affiliates, officers and employees against any claim or demand, arising from any act of the Customer or third party including but not limited to;
11.2.1 A breach or allegation of breach of the conditions of this Agreement;
11.2.2 Negligence, misconduct or any allegation of negligence or misconduct by the Customer or by any third party;
11.2.3 The marketing or promotion undertaken by or on behalf of the Customer;
11.2.4 The service content provided or marketed by or on behalf of the Customer;
and all costs relating thereto.
12. TERM & TERMINATION
12.1 Until terminated in accordance with the terms of this Agreement, this Agreement shall commence from the date hereof and shall remain in force for a minimum period of 12 months. Provided the Agreement has not been terminated in accordance with the terms of this Agreement, it shall continue after the first minimum term of 12 months unless otherwise stated on the Customer Requirements form The customer is required to provide 90 days notice in writing to BeLogical if they wish to move to another provider.
12.2 Subject to conditions of this agreement and without prejudice to any specific termination rights set out elsewhere in these Conditions, the Customer shall not be entitled (once an order has been accepted by BeLogical) to change or cancel an order:
12.2.1 at all in respect of Equipment; unless otherwise agreed in writing with the Company.
12.3 BeLogical may terminate this Agreement with immediate effect by giving notice at any time, if;
12.3.1 The Customer does not comply with the terms of this Agreement;
12.3.2 The Customer says, or appears to intend, that it will not abide by the terms of this Agreement;
12.3.3 The Customer ceases trading, convenes a meeting of, or comes to an arrangement with its creditors, has distress or other seizure levied over any of its assets or does not satisfy any demand for payment from any legal person;
12.4.4 Any step is taken to wind up or dissolve the Customer, a receiver, and/or manager or administrator appointed over any assets;
12.4.5 BeLogical believes the Customer has allowed services to be used for any unlawful purpose or any use prohibited by this Agreement; or
12.4.6 BeLogical, or the Customer, is instructed by, or receives any complaint or objection from BT Plc, any Carrier with whom it Contracts, OFCOM, or regulatory or governmental body.
12.4.7 The Customer fails to pay any invoice on time.
12.4.8 If the Customer fails to keep their account in credit, or generates traffic which creates a situation, where the Customer owes more money to BeLogical, than BeLogical owes to the Customer.
12.5 Either party may terminate this Agreement if
12.5.1 either party has committed a breach of the Agreement, and fails to remedy the breach within 30 days of notice requiring it to do so, and;
12.5.2 either party takes any steps to wind up or dissolve, or a receiver and/or manager or administrator is appointed over any assets;
12.6 Termination shall be without prejudice to the rights and obligations accruing up to and including the date of termination.
12.7 The Customer may terminate this Agreement giving 90 days notice in writing, after the minimum term has been completed as shown on the Customer Requirements Form.
12.7.1 BeLogical is entitled to keep the whole of all Deposit paid by the Customer.
12.7.2 The Customer shall indemnify BeLogical in full against all loss (including, but not limited to, all losses or charges incurred by BeLogical as a result of the Customer terminating the Contract before the end of the Minimum Term. This includes and is not limited to Line Rental charges until the completion of the minimum term plus call costs calculated upon an average of 3 months call charges prior to the request for termination or cancellation this average will be charged for each remaining month of the term. If a customer terminates or moves away Broadband services at any time a one off charge of £50.00 + VAT will be made for each service ceased with BeLogical. Any router(s) provided to the customer, by BeLogical, must be returned in full working order, at the cost of the customer. Any router(s) provided by Belogical not returned in full working order will be charged at a cost of £65.00 + VAT per item.
12.8 The termination or expiry of the Contract shall be without prejudice to any rights or liabilities which have accrued prior to such expiry or termination. Any provision of this Contract which expressly or by implication is intended to survive, shall survive the termination or expiry of the Contract.
12.9 Any implied right to terminate for convenience that the Customer may have under applicable law is hereby expressly excluded.
13. TECHNICAL SUPPORT AND MAINTENANCE
13.1 BeLogical may without liability, prior warning or consent of the Customer, suspend the service, in the event that it wishes to carry our maintenance, upgrade works, or back-ups, BeLogical shall use reasonable endeavours to keep any consequent disruption to the service to a minimum.
13.2 In the event that the Customer becomes aware of any faults with the service, it shall notify BeLogical as soon as is practicably possible.
13.3 Any Maintenance Services shall apply only in respect of Equipment as set out in the Customer Requirements Form supplied by BeLogical.
13.4 If the Customer elects to use third party Equipment or Fixed Network Services (including but not limited to Broadband elements) over BeLogical supplied Equipment or Fixed Network Services; the Customer accepts that BeLogical cannot provide any Maintenance Services relating to this. The Customer also acknowledges that BeLogical cannot be liable for any interruptions in the service provided by BeLogical, when supported by third party Equipment or Fixed Network Services
13.5 Where BeLogical replaces defective Equipment or part thereof, it shall be entitled to supply serviceable reconditioned items in substitution thereof. These Conditions shall continue to apply to the Equipment embodying such substituted items.
13.6 BeLogical does not warrant that the provision of Maintenance will ensure that the Equipment operates without further interruption or error.
13.7 Maintenance Services shall not include the following:
(a) the repair of damage to the Equipment resulting from accident, neglect or causes other than ordinary use (including, but not limited to, failure to observe any instructions supplied by the Company regarding the operation of the Equipment);
(b) repair, labour or materials required as a result of theft, vandalism, fire, lightning, water damage, fluctuations in electrical power supply, unsatisfactory environmental conditions, telephone line conditions, the connection of unapproved accessories, attachments or other devices or as a result of breach by the Customer;
(c) the alteration, modification or maintenance of the Equipment by any person other than BeLogical without BeLogical’s prior written consent;
(d) the transportation or relocation of the Equipment save where the same has been performed at the request of BeLogical;
(e) any defect or error in any software used upon or in association with the Equipment;
(f) the supply of replacement cassettes, aerials, aerial systems and batteries;
(g) the reprogramming of the Equipment to provide improved or modified service or facilities;
(h) Equipment faults caused by telephone area code changes or changes in Carriers;
(i) ancillary items including but not limited to answer-phones, analogue and digital phones or devices, call loggers, payphones, computers, servers, un-interruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, any cabling and/or consumables unless otherwise agreed in writing;
13.8 BeLogical shall be entitled to levy (and receive from the Customer) Additional Charges if:
(a) Maintenance Services are provided in circumstances where any reasonably skilled and competent person would have judged the Customer’s request to have been unnecessary; and/or
(b) the Customer reports an apparent fault of the Equipment to BeLogical and upon investigation by BeLogical the Equipment and/or its Installation is found not to be defective (in respect of a charge for the investigation and/or for any call-out including, without limitation, Equipment changed in a postal exchange where BeLogical reserves the right to make a charge up to the replacement value of the item in question); and/or
(c) where a fault that has been reported to BeLogical has been a non-Equipment fault but instead one of a third party supplier (in respect of a charge for the call-out in accordance with BeLogical’s then current Tariff).
13.8.1 Additional Charges shall be levied by BeLogical as follows:
(a) following completion of the work in respect of additional services supplied
(b) following completion of the investigation and/or call out
(c) such Additional Charges (calculated in accordance with the Tariff prevailing at the time) shall be payable by the Customer within seven days of the date of an invoice.
14. CALL MONITORING
14.1 The Customer agrees that BeLogical may monitor and record calls made to or by BeLogical by or to the Customer (and/or any of their employees or personnel), for training purposes, to improve the quality of its customer services and to assist with complaint handling. The Customer undertakes to make its employees and personnel aware of the rights reserved by the Company under this condition.
14.1.2 The Customer agrees that BeLogical may record calls made by or to the Customer (and/or any of their employees or personnel) by or to third parties for the sole purpose of technical support issues and complaint handling. The Customer undertakes to make its employees, personnel and any third parties aware of the rights reserved by the Company under this condition.
15 DISPUTE RESOLUTION
15.1 BeLogical will attempt to resolve any dispute or complaint that the Customer may have with BeLogical. All disputes or complaints must be submitted in writing by the Customer to BeLogical, marked for the attention of the Customer Complaints Officer, via one of the following methods:
Post: BeLogical UK Limited, 1, 2 & 3 Damhouse, Astley Hall Drive, Astley M29 7TX
15.1.1 If the dispute cannot be resolved within 8 weeks of the Customer raising the dispute or complaint with BeLogical (which has been acknowledged by BeLogical) then the Customer may refer the matter to:
(a) Ombudsman Services Communication, via the website www.ombudsman-services.org/ or by telephone on 0330 440 1614 or 01925 430 049; or
(b) OFCOM, the communications regulator via the website www.ofcom.org.uk or by telephone on 0300 123 333 or 0207 981 3040.
15.2 Nothing in this condition shall prevent the Customer or BeLogical from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Contract.