Terms & Conditions

The Customer’s attention is particularly drawn to the provisions of clauses 4.4, 5.3, 6.3, 7.3 and 8.3 (Contract Extended Term), and clause 14. (Limitation on ARCL’s Liability)

1.INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:

Business Day is a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business. Carrier the relevant third party telecommunications operator or network service provider.
Charges the applicable charges payable by the Customer for the supply of any
Services and/or Equipment in accordance with clause 10.
Commencement Date means the date on which ARCL shall start to provide the Service which shall mean in the case of:

  • (a) Maintenance Services the Installation Date or where ARCL has not contracted
    with the client to install Equipment in connection with the Maintenance Services
    the date specified as the Commencement Date for the Maintenance Services;
  • (b) Fixed Network Services the Handover Date in respect of those Fixed Network Services;
  • (c) Data Services the relevant Handover Date in respect of those Data Services;
  • (d) IT Support Services the date specified as the Commencement Date in the Order Form; and
  • (e) Push to Talk Mobile Services the Handover Date in respect of those Mobile Services.

Conditions these terms and conditions as amended from time to time in
accordance with clause 18.7.
Connection Date means in the case of the provision of Data Services the date when the Carrier commences the provisioning of Data Services to the Customer on behalf of ARCL.
Contract the contract between ARCL and the Customer for the supply of any Services and/or goods (including where appropriate Equipment) in accordance with these Conditions, the Order and any Service Specific Conditions.
Contract Date the date on which a contract between the Customer and ARCL
is formed and comes into existence as determined pursuant to the provisions of
clause 2.2
Customer the person or firm specified as such in the Order Form who contracts to
purchase Services from ARCL.
Customer Default has the meaning given to it in clause 9.3.
Data Services are the data services to be provided by ARCL to the Customer as described in the Order, together with such other data services that ARCL agrees to supply to the Customer from time to time.
Data Services Contract where applicable is the Contract for the supply of Data Services.
Delivery has the meaning given to in clause 4.2.
Equipment the equipment as set out in the Order Form or Hire Agreement as the case may be.
Estimated Installation Date is the date on which ARCL estimates that the Equipment will be installed, as advised by ARCL to the Customer.
Extended Term in relation to:

  • (a) a Contract for the supply of Fixed Network Services has the meaning given to it
    in clause 5.3 or if applicable, clause 5.4; and
  • (b) a Contract for the supply of Data Services has the meaning given to it in clause 6.3 or if applicable, clause 6.4
  • (c) a Contract for the supply of Maintenance Services has the meaning given to it in clause 4.4 or if applicable, clause 4.5; and
  • (d) a Contract for the supply of the IT Support Services has the meaning given to it in clause 7.3 or if applicable, clause 7.4.

Fixed Network Services the voice services to be provided by ARCL to the Customer
as specified in the Order Form.

Fixed Network Services Contract where applicable, the Contract for the supply of Fixed Network Services.
ARCL AIRACOM LIMITED registered in England and Wales with company number (07675722) of 3rd Floor, 207 Regent Street, London, England, W1B 3HH, UK
ARCL Customer Transfer Preference Policy as set out at www.airacom.com as varied from time to time.
Handover Date means

  • (a) in the case of the provision of Fixed Network Services the date when the Fixed
    Network Services are available for use by the Customer with ARCL as the supplier of
    the Fixed Network Services.
  • (b) in the case of Data Services the date when the Data Services are available for use
    by the Customer with ARCL as the supplier of the Data Services.
  • (c) in the case of Mobile Services the date when the Mobile Services are available
    for use by the Customer with ARCL as the supplier of the Mobile Services.

Hosted Sub Licence is a sub-licence granted by ARCL to the Customer for a hosted product for use in connection with Fixed Network Services.
Installation Date is the date on which the Equipment is installed.
Installation Services the services relating to the installation by ARCL (or its duly authorised agents) of the Equipment (where applicable).
IT Support Services the IT support services to be provided by ARCL to the Customer as specified in the Order.
IT Support Services Contract where applicable, the Contract for the supply of IT Support Services.
Maintenance Services are the maintenance services to be provided by ARCL to the Customer as described in the Order, together with such other maintenance services that ARCL agrees to supply to the Customer from time to time.

Maintenance Services Contract where applicable, the Contract for the supply of Maintenance
Services.
Minimum Term the minimum contract term that applies to the Maintenance Services, the Fixed Network Services, the Data Services, the IT Support Services and/or the Mobile Services as the case may be shall unless a different minimum term is specified for any such Service in the Service Specific Conditions section of the Order Form be the period of three years commencing on the Commencement Date.
Mobile Services are the mobile services to be provided by ARCL to the Customer as specified in the Order.
Mobile Services Contract where applicable is the Contract for the supply of Mobile Services.
Notes Section the section of the order form is marked “Notes Section”.
OFCOM the Office of Communications or any equivalent successor body.
Order the Customer’s order for Services as set out in the Order Form; such Order being subject to these Conditions.
Order Form the document which sets out amongst other things the Services which the Customer would like ARCL to provide to it and certain details in respect thereof including when read in conjunction with these Conditions the basis on which the charges for providing the Services will be calculated. The Order Form shall be prepared by ARCL and sent to the Customer for signature by or on behalf of the Customer and returned to ARCL. The Order Form may be prepared, sent, signed or returned either electronically or physically.
Personal Data has the meaning given to it in the Data Protection Act 1998 or, after 25 May 2018 the General Data Protection Regulation.

Push to Talk Services Contract where applicable, the Contract for the supply of Push to Talk Services.
Services the services to be supplied by ARCL to the Customer being any or all of the Installation Services, Maintenance Services, Fixed Network Services, Data Services, IT Support Services. Push to Talk Services, MDM Mobile Device Management Services, Mobile Security Services and/or Mobile Services, as the case may be, and Service shall be
construed accordingly but shall exclude the provision of DNS servers and mail servers.
Service Specific Conditions any policies, terms or procedures that apply to and shall be incorporated into the Contract, as specified in the notes section of the Order Form. Site: the Customer’s place of business as specified in the Order Form where any Services are to be provided or carried out and/or ( where applicable) Equipment is to be delivered and any Installation is to take place, as specified in the Order Form.
Small Business Customer a Customer identified on the Order Form as not being a communications provider and who has 10 or fewer individuals working for that Customer (whether as employees, volunteers or otherwise).
Specification of the description or specification of the relevant Services and/or Equipment provided in writing by ARCL to the Customer as set out in the Order Form.
Tariff The standard tariff as set out at www.airacom.com and as varied in the Notes Section of the Order Form for Fixed Network Services, Data Services and the IT Support Services as attached to the Order Form and as amended or notified to the Customer from time to time.
VOIP Voice Over Internet Protocol being the use of the Internet as the transmission medium for telephone calls by digital means (rather than the traditional telephone system based on copper wires carrying analogue data). 1.2 Construction. In these Conditions, the following rules apply:

  • (a) a person includes a natural person, corporate or unincorporated body (whether or
    not having separate legal personalities);
  • (b) a reference to a party includes its personal representatives, successors or
    permitted assigns;
  • (c) a reference to a statute or statutory provision is a reference to such statute or
    statutory provision as amended or re-enacted. A reference to a statute or statutory
    the provision includes any subordinate legislation made under that statute or statutory
    provision, as amended or re-enacted;
  • (d) any phrase introduced by the terms including include, in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the
    words preceding those terms; and
  • (e) a reference to writing or written includes e-mails but excludes faxes.

 

2.BASIS OF CONTRACT
2.1 The sending of the Order Form by ARCL to the customer constitutes an offer by
ARCL to the Customer to provide services and/or Equipment in accordance with these
conditions, the Order and any service-specific conditions (“the Offer”). The Offer may be withdrawn at any point by ARCL prior to it being accepted by the Customer.
2.2 The offer shall be accepted and the Contract shall be formed and come into
existence at the point when ARCL receives the Order Form, either electronically or
physically, duly signed (either electronically or physically) by or on behalf of the Customer at which point and on which date the Contract shall come into existence
(subject where applicable to clauses 4.1, 5.6, 6.6 and 7.5). If ARCL has not received
the Order Form duly signed for or on behalf of the Customer within [12 months] from the date on which it is sent by ARCL to the Customer the offer to contract with the Customer shall be deemed to have been withdrawn unless otherwise agreed between ARCL and the Customer.

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ARCL which is not set out in the Order Form, the Service Specific Conditions or the terms (or incorporated by reference in any of them).

2.4 Any samples, drawings, descriptive matter or advertising issued by ARCL, and any
descriptions or illustrations contained in ARCL’ 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 Contract nor have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that
the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. In the event of any conflict between these Conditions and any Service Specific Conditions, the Service Specific Conditions shall prevail. In the event of any conflict between these Conditions, any Service Specific Conditions and the Order Form, the Order Form will prevail in relation to that Service.

2.6 Any quotation given by ARCL shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.

2.7 The Customer warrants to ARCL that it is entering into the Contract for the purpose of its business, trade or profession and not as a consumer.

2.8 Except for Installation Services that shall form part of a Contract for the supply
of Equipment, each order for Maintenance Services, Data Services or Fixed Network Services shall be deemed to be a separate Contract (irrespective of whether more than one or all of them are included on the same Order Form).

2.9 To the extent that there is any failure or delay by ARCL to supply one of the Services, that shall not entitle the Customer to terminate the Contract for the supply of any other Service or Services as the case may be (if any).

 

3. SUPPLY OF SERVICES
3.1 ARCL shall supply the Services to the Customer in accordance with the Contract
in all material respects. In the event that the Order Form specifies:

  • (a) the supply by ARCL to the Customer of Equipment and Installation Services and/ or Maintenance Services, clause 4 of these Conditions shall also apply to the Contract
  • (b) the supply by ARCL to the Customer of Fixed Network Services, clause 5 of these Conditions shall also apply to the Contract;
  • (c) the supply by ARCL to the Customer of Data Services, clause 6 of these Conditions shall also apply to the Contract; and
  • (d) the supply by ARCL to the Customer of IT Support Services, clause 7 of these Conditions shall also apply to the Contract.

3.2 ARCL shall use all reasonable endeavours to deliver any Services on or by any date or dates specified in the Order Form, but any such dates shall be estimates or for guidance only and time shall not be of the essence for the performance of the Services.

3.3 ARCL shall have the right to make any changes to any Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the relevant Services. ARCL shall notify the Customer of any such change.

3.4 ARCL warrants to the Customer that the relevant Services will be provided using reasonable care and skill, subject to clauses 4, 5, 6 and 7 of these Conditions.

 

4.Terms applicable to Equipment, Installation Services and Maintenance Services
4.1 Any Order for Equipment is conditional on the availability of such Equipment
prior to the Estimated Installation Date. ARCL shall use reasonable endeavour to deliver the Equipment and supply the Installation Services with reasonable care and skill in accordance with the estimated period for delivery and installation. Installation within such a period is not guaranteed and time shall not be of the essence.

4.2 Delivery of Equipment shall be deemed to take place when the relevant
Equipment arrives at the Customer’s Site (prior to unloading or unpacking) as
specified in the Order (Delivery) (and Delivered shall be construed accordingly). In
relation to Delivery of any Equipment:

  • (a) the Customer shall be responsible for checking that all details specified in the Order are correct;
  • (b) if the Customer fails to take delivery of any Equipment within 10 Business Days of ARCL notifying the Customer that the Equipment is capable of being delivered, the Equipment shall be deemed to have been delivered in accordance with the Contract and the Equipment shall be at the risk of the Customer and thereafter clause shall apply to the Equipment;
  • (c) if any Equipment is to be delivered in instalments, any delay in the delivery of one instalment shall not entitle the Customer to reject the other instalments or to terminate the Contract; and
  • (d) the risk in any Equipment shall pass to the Customer on Delivery (or deemed Delivery in accordance with clause 4.2(b)) and the Customer shall be responsible for insuring the Equipment from that time.

4.3 If the Customer is in breach of the Contract the Customer shall return the Equipment at the Customer’s cost to ARCL immediately on request and permit ARCL or its agents to enter any premises of the Customer or of any third party where the Equipment is located in order to recover it.

4.4 Subject to clause 2.2, the supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

4.5 If for any reason clause 4.4 is deemed to be unreasonable and unenforceable by way of a final court judgment then clause 4.5 shall apply. Subject to clause 2.2, the supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

4.6 The Maintenance Services shall only be supplied by ARCL in relation to the Equipment and to any other equipment agreed by ARCL in writing from time to time. Unless agreed otherwise in writing by ARCL shall supply the Maintenance Services in accordance with the Maintenance Service Levels (a copy of which is available at www.airacom.com) as amended from time to time.

4.7 The Maintenance Services shall not include or be deemed to include repair or maintenance to:

  • (a) equipment that is faulty or has failed due (in whole or in part) to or caused by:
    • (i) fair wear and tear;
    • (ii) the Customer’s (including its agents or workers) acts, operating errors, omissions or default;
    • (iii) failure in air-conditioning or fluctuations in electrical power;
    • (iv) any failure of equipment or software attached to or integrated to the Equipment where such equipment or software was not supplied by ARCL;
    • (v) vandalism, fire, theft, water or lightning;
    • (vi) any defect or error in software loaded onto the Equipment;
    • (vii) any defect or fault in connection with services supplied to ARCL by any Carrier;
    • (viii) failure by the Customer (including its agents or workers) to adequately maintain any Equipment or operate it in accordance with the manufacturer’s specifications, guidelines or recommendations; or
    • (ix) any attempt by the Customer or any third party other than ARCL or its duly authorised agents to repair, reconfigure, re-program or otherwise alter the Equipment or any equipment or cabling attached to it
  • (b) ancillary items, including but not limited to, answer-phones, analogue and digital phones or devices, call loggers, pay-phones, computers, servers, uninterruptible 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;
  • (c) the maintenance or repair of any extension wiring, any Equipment not at the Site, or of anything other than the Equipment; or
  • (d) the reprogramming of the Equipment to provide improved or modified services or facilities.

4.8 In the event that ARCL carries out Maintenance Services to any Equipment which has, in its reasonable opinion failed or become faulty due (wholly or partially) to any of the circumstances described in clause 4.7, ARCL shall be entitled to charge additional fees for such services calculated in accordance with clause 9.5.

4.9 In carrying out the Maintenance Services ARCL shall not (subject to clause14) be liable for the loss of any data or information stored on the Equipment or any other equipment that may be affected by the carrying out of the Maintenance Services and the Customer shall ensure that appropriate backups of all data and information are maintained.

4.10 In rectifying any fault to Equipment it may be necessary for ARCL to reset the Equipment’s software. In such cases, ARCL shall not be responsible for resetting or reloading equipment programming and user profiles.

4.11 The Maintenance Services are limited to the provision and repair of the Equipment by ARCL on a like for like basis, which may include ARCL supplying reconditioned parts for Equipment and reconditioned Equipment. Any Equipment that is removed or replaced and any parts that are removed or installed in Equipment in the carrying out of the Maintenance Services shall become or shall remain (as the case may be) the property of ARCL.

4.12 Subject to clause 14, ARCL shall not be liable for any delay in the performance of the Maintenance Services where such delay is attributable to no, or poor or delayed availability of spare parts for any item of Equipment.

4.13 If the Customer terminates a Contract (in whole or in part) for Maintenance Services before the end of any applicable Minimum Term or Extended Term, the Customer shall pay to ARCL all charges that would have accrued during the period from the expiry of the Customer’s notice to terminate (or where no notice is given the date of indication by the Customer of an intention to no longer be bound by the Contract (in whole or in part)) to the end of the Minimum Term or Extended Term (as the case may be).

 

5.TERMS APPLICABLE TO FIXED NETWORK SERVICES
5.1 Subject to clause 2.2 and clause 5.5, the supply of the Fixed Network Services shall commence on the Commencement Date and shall continue for the Minimum Term.

5.2 If the Commencement Date for the provision of Fixed Network Services has not occurred prior to the first anniversary of the Contract Date for the Fixed Network Services then the Contract in respect thereof shall be deemed to have terminated unless otherwise agreed between ARCL and the Customer. The rights of the parties that have accrued prior to such termination shall not be affected by such termination.

5.3 Subject to clause 5.5, the Fixed Network Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term to terminate the Fixed Network Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

5.4 In the event that clause 5.3 is deemed to be unreasonable and unenforceable by way of a final court judgment then clause 5.4 shall apply. Subject to clause 5.5, the Fixed Network Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term to terminate the Fixed Network Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

5.5 Where the Customer is a Small Business Customer, the Customer may terminate the Fixed Network Services Contract by giving not less than 90 days notice in writing to ARCL, such notice to expire no earlier than the end of the Minimum Term.

5.6 The provision of any Fixed Network Services by ARCL under a Fixed Network
Services Contract is conditional on:

  • (a) ARCL carrying out such surveys as it deems necessary to satisfy itself that it is possible for it to supply the Fixed Network Services;
  • (b) the installation of the lines over which the Fixed Network Services are to be provided and such lines being fully operational; and
  • (c) the Customer providing to ARCL to its satisfaction accurate information and data to enable ARCL to calculate the Charges and to carry out a site survey.

5.7 ARCL warrants to the Customer that Fixed Network Services will be provided using reasonable care and skill. The Customer agrees that ARCL cannot guarantee that the Fixed Network Services will work without interruption and will be fault or error-free. Any interruption, fault or error with the Fixed Network Services must be notified to ARCL in accordance with clause 5.8.

5.8 The Customer shall notify ARCL of any interruption, fault or error with the Fixed Network Services in accordance with ARCL’ Fault Handling Policy (available at www.airacom.com) as amended from time to time. ARCL shall use reasonable endeavours to correct or cure any interruption, fault or error with the Fixed Network Services in accordance with ARCL’ Fault Handling Policy, save that time shall not be of the essence.

5.9 Notwithstanding any other provision of these Conditions, ARCL shall not be liable to the Customer in contract, tort (including negligence) or otherwise for any acts or omissions of Carriers that may (wholly or partially) cause, impact or result in any interruption, fault error with or withdrawal of (temporarily or permanently) the Fixed Network Services.

5.10 All and any telephone numbers allocated to the Customer in connection with the Fixed Network Services may be withdrawn by OFCOM and accordingly, ARCL does not warrant or represent that such telephone numbers can be provided to the Customer. The Customer acknowledges and agrees that any telephone numbers allocated to it are allocated on the basis of a license and the Customer agrees not to sell or transfer any telephone number provided to it (except where the Customer has a right to port that telephone number).

5.11 In relation to the use of the Fixed Network Services the Customer agrees:

  • (a) to ensure that the Fixed Network Services are not used to make offensive, indecent, menacing, nuisance or hoax calls;
  • (b) not to use the Fixed Network Services in any way that may, in ARCL’ reasonable opinion, damage its reputation
  • (c) not to contravene any laws, regulations or codes of conduct that may, from time to time, be applicable to the use or supply of the Fixed Network Services;
  • (d) to implement and maintain appropriate security and control over its networks, equipment and business to
  • prevent fraud and to prevent calls being generated by third parties;
  • (e) to maintain adequately all equipment utilised in connection with the Fixed Network Services and ensure its compatibility in terms of technical specification;
  • (f) not to use nor permit the Fixed Network Services to be used in any way that would constitute or contribute to the commission of any crime, tort, fraud or other unlawful activity;
  • (g) not to allow any unauthorised use of the Fixed Network Services and to take all reasonable security measures to prevent such use;
  • (h) not to sell or resell the Fixed Network Services in whole or in part;
  • (i) not to misuse the Fixed Network Services in any way, including without limitation causing the volume of calls
  • made to the telephone numbers allocated to the Customer to significantly exceed that which can be answered by the Customer where this would cause congestion to a network;
  • (j) that ARCL may publish details of the Customer’s name, address and telephone number(s) in the Directory Enquiries Service, unless the Customer expressly confirms to ARCL in writing that it would like a special entry to be made, for which ARCL may make an additional charge;
  • (k) that to the extent the Fixed Network Services contain VOIP services, clause 6.12 shall also apply save that references in that clause to Data Services shall be deemed to be references to Fixed Network Services; and
  • (l) in order to protect the Customer against the unauthorised transfer of Fixed Network Services, in the event that the Customer fails to contact ARCL not less than 48 hours prior to any transfer date in accordance with ARCL’ Customer Transfer Preference Policy, ARCL may cancel any order made with a third party supplier.

5.12 Any equipment installed or supplied by ARCL to the Customer in connection with the Fixed Network Services (including but not limited to handsets) shall, except for equipment purchased by the Customer under clause 4, at all = times remain the property of ARCL. Clause 4.2(d)shall apply to such equipment as if it were deemed to be Equipment. The Customer shall return such equipment to ARCL immediately on request and shall be liable for costs, losses, damages and expenses incurred by ARCL for the repair, recovery and replacement of such equipment.

5.13 Upon termination of the Fixed Network Services Contract (for whatever reason), the Customer shall return any handsets installed or supplied by ARCL to the Customer in connection with the Fixed Network Services at the Customer’s cost. If such handsets are not returned within seven days following the termination of the Fixed Network Services Contract, ARCL reserves the right to charge the Customer a fee in respect of each handset, as specified in the Tariff.

5.14 ARCL shall be entitled to make additional charges in the event that the Customer supplies inaccurate or misleading information to ARCL or if the results of any survey reveal additional construction work is required in order for ARCL to supply the relevant Fixed Network Services.

5.15 Where the transfer of lines and services of another supplier occurs, then the provision of any and all relevant existing services supplied to the Customer by such supplier will automatically transfer to ARCL and will be charged for by ARCL in accordance with the Tariff.

5.16 The Customer acknowledges and accepts that it 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 stated on the Order Form that ARCL will pay for such charges in which case ARCL will pay for such charges but limited to those specifically as set out on the Order Form.

5.17 The Customer accepts and acknowledges that ARCL will prior to the Handover Date have spent a significant amount of time and incurred expense in preparation for the provision of the Fixed Network Services to the Customer. In the event that the Customer terminates the Contract for Fixed Network Services prior to the Handover Date, it shall pay to ARCL £500 plus vat. This clause 5.17 shall not apply where the Customer is a Small Business Customer. Where the Customer is a Small Business Customer, the Customer may terminate a Contract for Fixed Network Services at any time prior to commencement of the supply of such Services.

5.18 The following provisions of this clause 5.18 shall apply in the event that after the Handover Date the Customer terminates the Contract for Fixed Network Services in breach of contract prior to the expiry of the Minimum Term or the Extended Terms as the case may be

  • (a) In this clause 5.18 Remainder of the Term means (where the Customer terminates or is deemed to have terminated the Contract in breach of contract) the period that the Contract would have had left to run if the Customer had instead terminated it at the earliest following opportunity without being in breach of contract.
  • (b) Where the Customer has contracted for the supply of line rental only, a Customer agrees that it shall not operate lines contracted to be billed by ARCL use those lines for calls charged for or by another supplier. If in breach of this clause the Customer does use lines supplied by ARCL for the carriage of calls charged for by another supplier the Customer shall be deemed to be in breach of the Contract for the supply of Fixed Network Services and at ARCL’ option the Customer shall be deemed to have terminated the Contract for Fixed Network Services in breach of contract and the provisions of this clause 5.18 shall apply.
  • (c) If in breach of contract the Customer terminates a Contract for Fixed Network Services before the end of the Minimum Term or where applicable the end of an Extended Term (as the case may be), the Customer shall be liable to pay to ARCL an amount calculated in the following manner:-
    • (i) (by reference to line rental) the sum that it would have paid to ARCL for the rental of the lines for the Remainder of the Term calculated at the rate then applying at the time of termination; plus
    • (ii) (by reference to call charges) either the sum of £500 or if greater the average of the monthly charges for calls incurred by the Customer for the three whole months prior to the termination of the contract multiplied by the period of the Remainder of the Term (expressed in months)

5.19 The Customer agrees not to use in connection with the Fixed Network Service
provided by ARCL any telephone number that the Customer does not have the legitimate right to use. In this regard, the Customer shall not “present out” any telephone number that it does not have the right to use; such as a telephone number of a competitor.

5.20 Where ARCL grants to the Customer a Hosted Sub Licence it shall terminate at
the point when ARCL ceases to provide to the Customer the Fixed Network Services
in respect of which the Hosted Sub Licence was granted and the Hosted Sub Licence
and all rights in the Hosted Sub Licence shall revert to and be owned in their entirety
by ARCL.

 

6.TERMS APPLICABLE TO DATA SERVICES
6.1 Subject to clause 6.6, the supply of the Data Services shall commence on the Commencement Date and shall continue for the Minimum Term.

6.2 Subject to the remaining provisions of this clause if the Commencement Date for the provision of Data Services has not occurred prior to the first anniversary of the Contract Date for the Data Services then the Contract in respect thereof shall be deemed to have terminated. ARCL may by giving written notice to the Customer extend the period referred to in this clause by six months if the reason why the Commencement Date has not occurred is outside of the control of ARCL. Further, the period may be extended by such period as ARCL and the Customer agree. The rights of the parties that have accrued prior to such termination shall not be affected by such termination.

6.3 Subject to clause 6.5 the Data Services Contract which includes all Push-to-Talk Services shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Data Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

6.4 If for any reason clause 6.3 is deemed to be unreasonable and unenforceable by way of a final court judgment then clause 6.4 shall apply. Subject to clause 6.5 the Data Services Contract which includes all Push-to-Talk Services shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Data Services Contract and/or Push-to-Talk Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

6.5 Where the Customer is a Small Business Customer, the Customer may terminate the Data Services Contract and/or the Push-to-Talk Services Contract by giving not less than 90 days notice in writing to ARCL, such notice to expire no earlier than the end of the Minimum Term.

6.6 The provision of any Data Services by ARCL under a Data Services Contract is conditional on:

  • (a) ARCL carrying out such surveys as it considers necessary to satisfy itself that it is feasible for it to supply the Data Services and ARCL being satisfied with the results of such surveys;
  • (b) ARCL is not being prevented by circumstances and factors outside of its control from being able to supply the Data Services. Examples of such circumstances and factors include (without limitation) the infrastructure not being able to support the Data Services, the Customer not obtaining the necessary permission from third parties such as a landlord to install the necessary infrastructure, or a public body such as a local authority or highways authority withholding consent to the installation of the infrastructure where such consent is required;
  • (c) the installation of the lines over which the Data Services are to be provided and such lines being fully operational; and
  • (d) the Customer providing to ARCL to its satisfaction accurate information and data to enable ARCL to calculate the Charges and to carry out or commission a site survey.

6.7 ARCL warrants to the Customer that Data Services will be provided using reasonable care and skill. The Customer agrees that ARCL cannot guarantee that the Data Services including all Push-to-Talk Services will work without interruption and will be fault or error-free. Any interruption, fault or error with the Data Services or Push-to-Talk Services must be notified to ARCL in accordance with clause 6.8.

6.8 The Customer shall notify ARCL of any interruption, fault or error with the Data Services in accordance with ARCL’ Fault Handling Policy (available at www.airacom.com) as amended from time to time. ARCL shall use reasonable endeavours to correct or cure any interruption, fault or error with the Data Services in accordance with ARCL’ Fault Handling Policy, save that time shall not be of the essence.

6.9 Notwithstanding any other provision of these Conditions, ARCL shall not be liable to the Customer in contract, tort (including negligence) or otherwise for any acts or omissions of suppliers that may (wholly or partially) cause, impact or result in any interruption, fault or error with, or withdrawal of (temporarily or permanently), the Data Services.

6.10 In relation to the use of the Data Services the Customer agrees and where appropriate accepts:

  • (a) to comply with the obligations in clauses 5.11(a) to 5.11(i) (inclusive) as if references in those clauses to Fixed Network Services were references to Data Services;
  • (b) not to misuse the Data Services in any way, including sending or receiving data in such a manner or volume so as to exceed agreed usage limits or so as to adversely affect the network, ARCL or its other customers;
  • (c) that the speed of any Data Services or connection depends on a number of factors beyond ARCL’ control, including external factors and physical factors (such as local availability, the distance from the exchange / mobile network mast/s and peak traffic volume) and that ARCL does not warrant or represent that the Customer’s connection(s) will produce the maximum advertised speed or availability;
  • (d) that except where stated otherwise in the Order Form, the Data Services do not include the supply by ARCL of lines, modems and other equipment that might be required by the Customer to utilise the Services nor advice on these unless ARCL is specifically engaged to do so under a separate contract which shall be in addition to the provision of Data Services under the Data Services Contract;
  • (e) to comply with ARCL’ Fair Use Policy (available at www.airacom.com) as
    amended from time to time;
  • (f) provide suitable space and environment at the Site for the equipment used in the provision of the Data Services (such as sufficient cooled space on a rack) and to do so]in a timely manner. Compliance by the Customer with this clause shall be entirely at the Customers cost.
  • (g) In respect of any router supplied by or on behalf of ARCL for a managed Internet Ethernet circuit unless otherwise specifically agreed with ARCL:-
  • (i) the router will be provided in a routed IP configuration and its sole purpose is to create an interface for the Customer to plug equipment into and it is not to be used for any other purpose;
  • (ii) the router is the demarcation point at which the responsibility for the provision of Data Services by ARCL ends;
  • (iii) access to the command interface of the router (which would be required to configure the router) will not be provided to the Customer, nor will other functions that the router may be capable of being enabled such as wireless connectivity and firewall functionality;
  • (iv) ARCL is not responsible for the configuration of the router other than to an IP configuration; and
  • (v) ARCL shall not be responsible for installing firewalls or plugging in the router and if the Customer requires firewalls the Customer shall be responsible for processing their installation.
  • (h) In respect of a router supplied by or on behalf of ARCL for an internet broadband service it will be provided in a NAT (Network Address Translation) configuration with DHCP Scope enabled unless otherwise agreed.

6.11 ARCL is under a duty to all of its customers to preserve network integrity and capacity and avoid degradation. The Customer agrees that:

  • (a) if in ARCL’ reasonable opinion the Customer’s use of Data Services is adversely affecting, or may adversely affect, integrity and capacity of networks, ARCL may take such steps as it deems appropriate to manage the Customer’s Data Services;
  • (b) ARCL and/or the Carrier may take such steps as it deems necessary to stop emails that appear to be bulk emails or which appear to be or of an unsolicited nature from entering networks and this may including blocking access to or delivery of any such emails; and
  • (c) ARCL and/or the Carrier may operate virus screen technology which may result in the deletion or alteration of emails or their attachments.

6.12 Where the Data Services involve the supply of VOIP services, then it is agreed
that the following shall apply and the Customer accepts that:

  • (a) the Customer’s ability to make emergency calls and their priority treatment can not be guaranteed and that any suspension or interruption of the VOIP service may result in the Customer being unable to make emergency calls
  • (b) the VOIP services are generally not considered to be as reliable as calls made over conventional telephone lines and Customers are advised to maintain the ability to make telephone calls other than as through a VOIP system, such as by maintaining a conventional telephone line;
  • (c) the Customer acknowledges that the VOIP service may sometimes be limited, unavailable or interrupted due to events beyond ARCL’ control, such as those specified in clause 17.1 (force majeure); and
  • (d) the VOIP services may not offer all of the features or resilience that the Customer may expect from a conventional telephone line.

6.13 Other than Equipment purchased by the Customer, any equipment installed or supplied by ARCL to the Customer in connection with the Data Services (including but not limited to routers) shall at all times remain the property of ARCL. The provisions of clauses 4.3 (a) to (d) shall apply to all such equipment. The Customer shall return such equipment to ARCL immediately on request or cessation of the provision of Data Services and the Customer shall be liable for all costs, losses, damages and expenses incurred by ARCL for the repair, recovery and replacement of such equipment.

6.14 Upon termination of the Data Services Contract (for whatever reason), the Customer shall return any routers installed or supplied by ARCL to the Customer in connection with the Data Services at the Customer’s cost. If such routers are not returned within seven days following the termination of the Data Services Contract, ARCL reserves the right to charge the Customer a fee in respect of each router, as specified in the Tariff.

6.15 Where the Customer wishes to transfer the provision of any lines or services from another supplier to ARCL, the Customer shall:

  • (a) provide to ARCL such accurate information as is required by ARCL to enable the
    migration from the current supplier; and
  • (b) be responsible for all costs, charges and penalties that may arise as a result of or in
    connection with such transfer.

6.16 The Customer acknowledges and accepts that it is liable for all cancellation or termination payments and charges (including without limitation any early termination charges) levied by a previous supplier for the transfer of the provision of services and lines to ARCL unless it is stated on the Order Form that ARCL will be responsible for the payment of such Charges.

6.17 The Customer accepts and acknowledges that ARCL will prior to the Connection Date have spent a significant amount of time and incurred expense in preparation for the provision of the Data Services to the Customer. In the event that the Customer terminates the Contract prior to the Connection Date it shall pay to ARCL:

  • (a) £500 plus vat in respect of the time spent by ARCL in preparation for the provision of the Data Services to the Customer; and
  • (b) an amount equal to the direct expenses (plus vat) incurred by ARCL to its supplier(s) in the preparation of Data Services to the Customer limited to £2,000. This clause 6.17 shall not apply where the Customer is a Small Business Customer.

6.18 Where the Customer is a Small Business Customer, the Customer may terminate a Contract for Data Services at any time prior to commencement of the supply of such Data Services.

6.19 The following provisions of this clause 6.19 shall apply in the event that after the Connection Date the Customer terminates the Contract for Data Services in breach of contract prior to the expiry of the Minimum Term or the Extended Terms as the case may be;

  • (a) In this clause 6.19 Remainder of the Term means (where the Customer terminates or is deemed to have terminated the Contract in breach of contract) the period that the Contract would have had left to run if the Customer had instead terminated it at the earliest following opportunity without being in breach of contract. Where the Customer terminates the Contract for Data Services in breach of contract after the Connection Date but before the Handover Date then the Remainder of the Term shall be deemed to have commenced on the Connection Date
  • (b)The Customer acknowledges and accepts that to enable ARCL to provide the Data Services to the Customer, ARCL will enter into a contract for a fixed term with its supplier at the Connection Date. As is common with such contracts ARCL may remain liable to its supplier whether or not the Contract for Data Services with the Customer terminates prior to the end of the Minimum Term or the Extended Term as the case may be.
  • (c) In the event that the Customer is in breach of contract by terminating the Contract for Data Services otherwise than in accordance with clause 6.3 or 6.4 if applicable (and/ or 6.5 where the Customer is a Small Business Customer) before the end of the Minimum Term or where applicable, the end of an Extended Term (as the case may be) the Customer shall pay to ARCL (subject to the provisions of clause (d)) as liquidated damages an amount equal to the sum that the Customer would have been liable to pay to ARCL for the Remainder of the Term for the Data Services (calculated at the rate which applied at the time of termination) less any reduction that may apply pursuant to the provisions of clause 6.19(d) below. Where such termination occurs after the Connection Date but before the Commencement Date then the rate shall be the rate that would have applied at the Commencement Date had the Contract not been terminated.
  • (d) If the provisions of clause 6.19(c) apply and in the event that a supplier used by ARCL to provide the Data Services to the Customer reduces the amount that it charges to ARCL from that which it is contractually entitled to charge in respect of the Remainder of the Term ARCL shall advise the Customer of the amount of the reduction and that reduction shall be deducted from the amount payable under clause 6.19(c).

7.TERMS APPLICABLE TO PUSH TO TALK SERVICES & IT SUPPORT SERVICES
7.1 For the purpose of the Push to Talk Services and IT Support Services, the following terms shall have the following meanings:

  • Service Level Agreement: the service levels for the provision of Push to Talk Services and IT Support Services as set out at www.airacom.com as varied from time to time.
  • System: the hardware, operating systems and software listed in the Order Form.
  • Support Hours: the hours listed on the Order Form.
  • Out of Hours: such hours and times that are not within the Support Hours.
  • Support Request: includes the following: a request submitted by the Customer via telephone or email for support by ARCL under the Push to Talk and/or IT Support Services; and automated messages for support generated by the System and sent directly to ARCL for attention.
  • Push to Talk: also known as press-to-transmit (PTT), is a method of having conversations or talking on half-duplex communication lines, including two-way radio, using a momentary button to switch from voice reception mode to transmit mode
  • Push-to-Talk: also known and referred to as PTT or POC
  • Push to Talk Devices: mobile devices listed on the Order Form
  • Push to Talk Platform: ARCL’s software application is capable of providing voice and data transmission to one-to-one or one-to-many group communications.
  • Push to Talk License/s: sold on a per-user / per-month basis (billed monthly, annually or over the contract term) with multiple PTT service options listed on the Order Form.
  • Push to Talk Contract Term: ARCL’s standard Push-to-Talk contract term is 36 months. Contract terms are detailed on the Order Form.
  • Push to Talk Services Expiration Date: the date on which the Push to Talk Services (user licences and/or dispatch console licences and/or Push to Talk Support licences expire. Also referred to as PTT Services Expiration Date.
  • Push to Talk Demo/Trial Licences: ARCL may provide ‘Demo’, or ‘Trial’ Push-to-Talk (PTT) User Licence/s at no cost (demo or trial duration is at ARCL discretion).  ARCL will include all demo/trial licence/s, duration and quantities on the Order Form. Should a demo or trial duration be a minimum of six (6) months, or longer, then clause 7.3 would take effect if ARCL does not have in writing a cancellation request from the client no later than 90 days before the end of the Push to Talk Services Expiration Date. All Push to Talk Services would automatically renew onto ARCLs standard three (3) year contract term.

7.2 Subject to clause 2.2, the supply of the IT Support Services shall commence on the Commencement Date and continue for the Minimum Term.

7.3 The Push to Talk Services Contract and/or IT Support Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Push to Talk Services Contract and/or IT Support Services Contract at the end of the Initial Period or the relevant Extended Term, as the case may be.

7.4 If for any reason clause 7.3 is deemed to be unreasonable and unenforceable by way of a final court judgment then clause 7.4 shall apply. The Push to Talk Services Contract.. and/or IT Support Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Push to Talk Services Contract and/or IT Support Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be

7.5 The provision of any Push to Talk Services and/or IT Support Services by ARCL under a Push to Talk Services Contract and/or IT Support Services Contract is conditional on:

  • (a) ARCL carrying out such surveys as it deems necessary to satisfy itself that it is possible for it to supply either Push to Talk Service and/or IT Support Services or a combined service; and
  • (b) the Customer providing to ARCL to its satisfaction accurate information and data to enable ARCL to provide Push-to-Talk services and/or IT Support Services or combined service.

7.6 Subject to the Customer’s payment of the Charges, ARCL will provide the Push to Talk Services and/or IT Support Services or a combined Push to Talk and IT Support Service to the Customer:

  • (a) during Support Hours, unless support during Out of Hours is requested by the Customer and this is agreed to be provided by ARCL;
  • (b) meeting or exceeding the service levels referred to in the Service Level Agreement;
  • (c) remotely, unless otherwise agreed between ARCL and the Customer.

7.7 In relation to the use of the Push to Talk Services and/or IT Support Services the Customer agrees:

  • (a) that the Push to Talk Services and/or IT Support Services shall be provided by ARCL remotely, unless otherwise agreed;
  • (b) to permit ARCL remote access to its System and inform ARCL of any changes to passwords or other security devices to enable ARCL to access the System;
  • (c) to keep back-up copies of its operating systems and software;
  • (d) to keep backup copies of its data in line with recommendations made by the relevant software providers or ARCL from time to time;
  • (e) to make available such personnel of the Customer with appropriate skills, knowledge and authority to assist ARCL in the diagnosis of faults and the implementation of reasonable instructions intended to rectify or prevent recurrence of faults;
  • (f) to promptly check that files have been restored from back-up when restoration from back-up has been tested.

7.8 ARCL shall prioritise all Support Requests based on its reasonable assessment of the severity level of the problem reported and use its reasonable endeavours to respond to all Support Requests with a break-fix in accordance with the response times set out in the Service Level Agreement.

7.9 ARCL will seek to acknowledge all Support Requests within one working office hour of being logged.

7.10 The Customer acknowledges and agrees that:

  • (a) in the event that a fault in the System is caused by an error or defect in the operating system or software, the sole responsibility of ARCL will be to notify the Customer of the issue and to devise (where possible) a workaround for the Customer;
  • (b) the sole responsibility of ARCL in respect of any hardware issues shall be to diagnose faults in the hardware. The correction of any faults in the hardware shall be undertaken in accordance with the manufacturer’s warranty;
  • (c) ARCL will not be liable for any loss of data, loss of productivity or financial losses incurred due to incomplete or corrupt back-ups of data or backup procedures.

7.11 In the event that the Customer requests and ARCL provides IT Support Services in excess of the Customer’s allocated allowance, ARCL shall be entitled to charge additional fees for such services in accordance with clause 10.10.

7.12 ARCL shall, at the request and cost of the Customer, provide the Customer with a report summarising the Support Requests received, the time of receipt, the time of response and the time the Support Request is cleared. Any such request must be made in writing to ARCL and the Customer acknowledges and agrees that reports can only be provided by ARCL in respect of the month or months following the receipt of the request.

7.13 ARCL warrants to the Customer that the IT Support Services will be rendered by personnel with appropriate skills and experience to provide the IT Support Services. The Customer agrees that ARCL cannot guarantee that the provision of the IT Support Services will cause the System to work without interruption or error. The warranties provided by ARCL in clause 3.4 and this clause 7.13 shall be in lieu of and shall operate to exclude any other condition or warranty whether express or implied by law as to the provision of the IT Support Services.

7.14 The Customer warrants to ARCL that it owns or has the benefit of a valid and subsisting licence to use every element of the System and it has full authority to permit ARCL to perform the IT Support Services hereunder.

7.15 The Customer will fully indemnify and hold harmless ARCL against all costs, expenses, liabilities, losses, damages and judgments that ARCL may incur or be subject to as a result of a breach of clause 7.14.

8.TERMS APPLICABLE TO MOBILE SERVICES
8.1 For the purpose of the Mobile Services, the following terms shall have the following meanings: Airtime Provider: the relevant mobile network operator or wireless communications service provider. Connection: connection to any Airtime Provider’s network. Hardware Fund: the fund allocated to the Customer to allow it to purchase equipment in connection with the Mobile Services. Retail Mobile Services: the mobile services to be provided by ARCL to the Customer, where the Customer is directly contracted with an Airtime Provider. Support Hours: 9 am to 5.30 pm (GMT). Wholesale Mobile Services: the mobile services to be provided by ARCL to the Customer, where the Customer is directly contracted with ARCL and not an Airtime Provider.

8.2 Subject to clause 2.2, the supply of the Mobile Services shall commence:

  • (a) In the case of Wholesale Mobile Services on the Commencement Date and continue for the Minimum Term;
  • (b) In the case of Retail Mobile Services on the date the contract between the Customer and the Airtime Provider is signed by the Customer and continue until it expires, is terminated by the Airtime Provider, or the Customer is otherwise released from the contract by the Airtime Provider.

8.3 In the case of Wholesale Mobile Services and/or Push-to-Talk Services, the Mobile Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Mobile Services Contract at the end of the Initial Period or the relevant Extended Term, as the case may be.

8.4 If for any reason clause 8.3 is deemed to be unreasonable and unenforceable by way of a final court judgment then clause 8.4 shall apply. The Mobile Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Mobile Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

8.5 The provision of any Mobile Services by ARCL under a Mobile Services Contract is conditional on:

  • (a) the Customer providing to ARCL to its satisfaction accurate information and data to enable ARCL to provide Mobile Services;
  • (b) Network coverage;
  • (c) Availability of equipment.

8.6 Subject to the Customer’s payment of the Charges, ARCL will provide support for the Mobile Services to the Customer as follows:

  • (a) In the case of Wholesale Mobile Services, remote support during Support Hours, unless otherwise agreed between ARCL and the Customer with on-site support being chargeable;
  • (b) In the case of Retail Mobile Services, limited support during Support Hours is in accordance with the Airtime Provider’s terms.

8.7 ARCL shall operate and maintain a telephone help-desk to receive and process any requests for support in respect of the Mobile Services.

8.8 In relation to the use of the Mobile Services the Customer agrees:

  • (a) that any support for the Mobile Services shall be provided by ARCL remotely, unless otherwise agreed;
  • (b) to keep their data backed up and ensure that software updates are maintained;
  • (c) to make available such personnel of the Customer with appropriate skills,
    knowledge and authority to assist ARCL in the diagnosis of faults and the
    implementation of reasonable instructions intended to rectify or prevent a recurrence
    of faults.

8.9 The Customer acknowledges and agrees that:

  • (a) ARCL bears no responsibility for and will not be liable for any loss suffered by the Customer as a result of any fault that is caused by an error or defect in the network or software;
  • (b) the sole responsibility of ARCL in respect of any issues with hardware supplied under or in connection with the Mobile Services shall be to diagnose faults in the hardware. The correction of any faults in the hardware shall be undertaken in accordance with the manufacturer’s warranty;
  • (c) ARCL will not be liable for any loss of data, loss of productivity or financial losses incurred due to incomplete or corrupt backups of data or back-up procedures, network outages, or errors, failures or defects in the operating system;
  • (d) in recognition of the fact that ARCL may be entitled to receive payments from the Airtime Provider as a result of the Customer taking up the Mobile Services, the Customer will remain liable to ARCL and shall not avoid liability to ARCL if the Airtime Provider releases the Customer from its contract for any reason, including (without limitation) the Customer is released due to an error on the part of the Airtime Provider where the Customer has signed for 2 years.

8.10 ARCL warrants to the Customer that the Mobile Services will be rendered by personnel with appropriate skills and experience to provide the Mobile Services. The Customer agrees that ARCL cannot guarantee that the Mobile Services will work without interruption or error. Any interruption, fault or error must be notified to ARCL using the telephone help-desk referred to in clause 8.7. The warranties provided by ARCL in clause 3.4 and this clause 8.10 shall be in lieu of and shall operate to exclude any other condition or warranty whether express or implied by law as to the provision of the Mobile Services.

8.11 The Customer warrants to ARCL that, where ARCL provides the Mobile Services and the Customer uses equipment it owns or has the benefit of using, the Customer either owns such equipment or has a valid right to use it, and the Customer further warrants that it is the Customer’s responsibility to ensure any such equipment works and is suitable as-is for the Customer to receive and/or use the Mobile Services. By way of example and without limitation, the Customer must check and ensure that any SIM it proposes to use is unlocked and this shall not be the responsibility of ARCL.

8.12 Notwithstanding any other provision of these Conditions, ARCL shall not be liable to the Customer in contract, tort (including negligence) or otherwise for any acts or omissions of the Airtime Provider that may (wholly or partially) cause, impact or result in any interruption, fault error with or withdrawal of (temporarily or permanently) the Mobile Services.

8.13 The Customer will fully indemnify and hold harmless ARCL against all costs, expenses, liabilities, losses, damages and judgments that ARCL may incur or be subject to as a result of a breach of clause 8.11.

8.14 Any equipment supplied or installed by ARCL to the Customer in connection with the Mobile Services (including but not limited to SIMs and handsets) shall, except for equipment purchased by the Customer under clause 4 which shall not include handsets obtained by the Customer as a result of being subsidised by ARCL, at all times remain the property of ARCL. Clause 4.2(d)shall apply to such equipment as if it were deemed to be Equipment. The Customer shall return such equipment to ARCL immediately on request and shall be liable for costs, losses, damages and expenses incurred by ARCL for the repair, recovery and replacement of such equipment.

8.15 Upon termination of the Mobile Services Contract (for whatever reason), the Customer shall return any handsets and SIMs installed or supplied by ARCL to the Customer in connection with the Fixed Network Services at the Customer’s cost. If such handsets and SIMs are not returned within seven (7) days following the termination of the Mobile Services Contract, ARCL reserves the right to charge the Customer a fee in respect of each handset, such fee being the full market value of the handset(s) at the time of being supplied to the Customer.

8.16 In relation to any equipment that is supplied or installed by ARCL to the Customer in connection with the Mobile Services hereunder, except for equipment purchased by the Customer under clause 4, the following shall apply:

  • (a) The Customer shall notify ARCL in writing within three (3) Business Days of receipt of any of the equipment is damaged, or if the order has been incorrectly fulfilled;
  • (b) ARCL is not obliged to offer the Customer a refund, exchange or credit to the Hardware Fund in the event that equipment is ordered by the Customer in error;
  • (c) ARCL is not obliged to agree to any upgrades to the equipment it supplies to the Customer at any time, including during or after the Minimum Term (if applicable) but if it does, ARCL shall be entitled to extend the Minimum Term;
  • (d) The supply of equipment by ARCL to the Customer shall be subject to availability

8.17 Any Hardware Fund and any equipment supplied that has been charged to a Hardware Fund, are supplied by ARCL in return that the Customer completes the Minimum Term or the minimum period of the corresponding contract with the Airtime Provider, as applicable.

8.18 Where the Mobile Services Contract is completed, then the full title of any handsets supplied by ARCL shall transfer to the Customer, along with the right for the Customer to claim any outstanding amounts held by ARCL in the Hard-ware Fund.

8.19 At the end of the Minimum Term or the minimum period of the corresponding contract with the Airtime Provider, as applicable, should the Customer’s Hardware Fund be in a negative position then the Customer acknowledges and agrees to ARCL invoicing the balance of the negative amount, and to pay that amount in line with ARCL’ standard payment terms.

8.20 Where the Customer terminates any Connection prior to the expiry of that Connection’s minimum period, the Customer shall pay to ARCL a lump sum termination payment calculated as the total amount of the Hardware Fund initially provided to the Customer at the point of connection or renewal, as applicable, minus any unspent amount currently held by ARCL.

8.21 Where the Customer terminates any Connection prior to the expiry of that Connection’s minimum period and the Hardware Fund has been fully utilised by the Customer, the Customer shall pay to ARCL a lump sum equal to the Hardware Fund provided for the Connection(s) in question, based on the value of the Hardware Fund provided at the commencement of the current minimum period. 8.22 Where the Customer terminates any Connection prior to the expiry of that Connection’s minimum period and equipment has been supplied either free of charge or at a reduced rate, the Customer shall pay to ARCL a lump sum equal to the equipment provided for the Connection(s) in question, based on the market value of the equipment provided at the commencement of the current minimum period.

8.23 The sums stipulated in clauses 8.20, 8.21 and 8.22 will be charged in addition to any contractual early termination fees imposed by either ARCL or the applicable Airtime Provider in relation to the contract with said Airtime Provider.

 

9.CUSTOMER’S GENERAL OBLIGATIONS AND TERMS APPLICABLE TO ALL SERVICES
9.1 In relation to the Services, the Customer:

  • (a) shall ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
  • (b) shall co-operate with ARCL in all matters relating to the relevant Services;
  • (c) shall provide ARCL, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by ARCL;
  • (d) shall provide ARCL with such information and materials as ARCL may reasonably require in order to supply the relevant Services and/or Equipment, and ensure that such information is accurate in all material respects;
  • (e) shall prepare its premises for the supply of the relevant Services (where applicable);
  • (f) shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start (where applicable);
  • (g) agrees that ARCL may from time to time monitor or record calls made to ARCL or by ARCL to improve customer service, for training or for marketing purposes;
  • (h) agrees that ARCL shall not be liable or responsible for any failure or delay in the Services due to or in connection with any third-party infrastructure applicable to the supply of any Services;
  • (i) agrees to co-operate with any criminal investigations or any investigation of any regulatory body that is applicable to the supply of any of the Services;
  • (j) be responsible for ensuring the accuracy of all specifications, drawings, sketches, plans, descriptions and instructions provided to ARCL in connection with the supply of any Services and/or Equipment; and
  • (k) shall comply with all Service Specific Conditions.

9.2 The Customer is responsible and shall be liable to ARCL for the use of the Services (including for any Charges incurred) by the actions of any of its employees and any other person who has been given access to use the Services by the Customer and any person who gains access to use the Services for fraudulent purposes including in each case where such use was not authorised by the Customer. The Customer is strongly advised to install robust and effective security provisions to prevent unauthorised and/or fraudulent use.

9.3 If ARCL’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation or comply with any obligation or policy under the Conditions (Customer Default)

  • (a) ARCL shall without limiting its other rights or remedies have the right to suspend performance of any Service until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent that the Customer Default prevents or delays ARCL’ performance of any of its obligations;
  • (b) ARCL shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from ARCL’ failure or delay to perform any of its obligations as set out in this clause 9.3; and
  • (c) the Customer shall reimburse ARCL on written demand for any costs or losses sustained or incurred by ARCL arising directly or indirectly from the Customer Default.

9.4 Without prejudice to clause 9.3 or any other remedy available to ARCL shall be entitled to suspend the performance of any Service or terminate the Contract relating to the relevant Service without further liability to the Customer in the event that ARCL:

  • (a) is obliged to comply with any order, instruction or request of any competent governmental body;
  • (b) terminates the provision of telecommunications services;
  • (c) in its reasonable opinion, ARCL or the Carrier believes the Service is being used fraudulently or unlawfully; or
  • (d) in its reasonable opinion, ARCL or the Carrier needs to carry out improvements or repairs to any networks or equipment relating to the applicable Services.

9.5 ARCL shall not be liable for any charges resulting from or in connection with fraudulent or unauthorised use of a Service and/or Equipment and the Customer shall be responsible for and pay all charges, costs, fees and expenses resulting from or in connection with any fraudulent or unauthorised use of any Service and/or Equipment.

 

10.CHARGES AND PAYMENTS FOR SERVICES

10.1 The Charges for the Services and/or the Equipment shall be charged to and payable by the Customer in accordance with this clause 10 and in the case of Data Services and Fixed Network Services in accordance with this clause 10 and clause 11.

10.2 The Charges for the Equipment and Installation Services shall be as specified in the Order Form and calculated in accordance with these Conditions. Except as otherwise specified In the Order Form, Charges for Equipment and Installation Services shall be payable on Delivery.

10.3 The Customer shall pay any deposit specified in the Order Form within seven days of submitting the Order Form to ARCL.

10.4 The Charges for the Maintenance Services shall be as specified in the Order Form and calculated in accordance with these Conditions. Except as otherwise specified in the Order Form, Charges for Maintenance Services shall be payable annually in advance with the first payment due on the Commencement Date and continuing to be payable thereafter on each anniversary of the Commencement Date.

10.5 Where clause 4.8 applies in relation to Maintenance Services, ARCL shall be entitled to make such additional charges as are calculated in accordance with the Tariff.

10.6 ARCL may charge the Customer a call out fee where such a call-out occurs based on incorrect information being provided to ARCL or where a call-out occurs but the operative is unable to gain access to the premises within the times notified to the Customer for the call out.

10.7 The Charges for the Maintenance Services shall increase on each anniversary of the Commencement Date by 8%.

10.8 The Charges for the IT Support Services shall be as specified in the Order Form and calculated in accordance with these Conditions. Except as otherwise specified in the Order Form or these Conditions, Charges for IT Support Services shall be payable monthly in advance with the first payment due on the Commencement Date and continuing to be paid each month thereafter on the anniversary of the Commencement Date.

10.9 Where IT Support Services are provided during Out of Hours or at the Customer’s premises (or such location as is required by the Customer), the Charges shall be calculated by reference to the applicable hourly rates specified in the Order Form, or, if not stated in the Order Form, such hourly rates as specified in the Tariff. ARCL may invoice the Customer in respect of such services rendered, immediately after their provision.

10.10 Where clause 7.11 applies in relation to the IT Support Services, ARCL shall be entitled to make such additional charges as are calculated in accordance with or stipulated in the Tariff.

10.11 ARCL shall not increase the monthly charge or its hourly rates in respect of the IT Support Services unless the Customer’s network or user count has increased and at which point, any increase would need to be agreed upon by both parties prior to any increase being applied. The Customer’s network and user count will be reviewed by ARCL every six months from the Commencement Date.

10.12 The provisions of this clause apply to any proposed increase in the Charges other than those referred to in clause 10.14 below (which reflect an increase caused by regulatory changes in respect of which the provisions of clause 10.14 apply). ARCL reserves the right to increase its Charges for any Service (including without limitation by revising any Tariff). ARCL will give the Customer written notice of any such increase not less than 30 days before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify ARCL in writing within 14 days of the date of ARCL’ notice that the Client wishes to terminate the Contract, failing which the Customer shall be deemed to have accepted the changes.

10.13 Subject to applicable regulations, ARCL reserves the right to increase its Charges for any Service (including without limitation by revising any Tariff) as a result of any increase in charges made to ARCL by third party providers to it by a sum equal to any such increase. In such circumstances, the Customer shall not have the right to cancel the Contract.

10.14 Where ARCL proposes to increase its Charges for any Service (including by revising without limitation any Tariff) as a consequence of a regulatory change and that the increase is no greater than the additional cost to ARCL caused by the regulatory change, it will give the Customer written notice of any such increase not less than 30 days before the proposed date of the increase. In such circumstances, the Customer shall not have the right to cancel the Contract. 10.15 Except where otherwise specified in these Conditions or the relevant Order for any Service, the Customer shall pay each invoice submitted by ARCL:

  • (a) within 14 days of the date of the invoice; and
  • (b) in full and in cleared funds to a bank account nominated in writing by ARCL.

10.16 Time for payment of all Charges shall be of the essence of the Contract.

10.17 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value-added tax chargeable for the time being (VAT). The Customer shall pay to ARCL such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

10.18 Invoices shall be deemed to have been accepted if the Customer does not present a written objection, identifying clearly the disputed invoice and the reasons why it is challenged, to ARCL within 30 days of the date of the invoice.

10.19 If the Customer fails to make any payment due to ARCL under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above HSBC Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

10.20 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). ARCL may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by ARCL to the Customer.

10.21 ARCL may exercise a lien over any equipment or goods in ARCL’ possession belonging to the Customer, for all monies payable by the Customer to ARCL.

10.22 Any delay in ARCL raising an invoice for any Charges shall not prohibit ARCL from raising an invoice for the applicable Charges at a later date and the Customer shall pay such Charges.

10.23 ARCL reserves the right to make additional charges for paper billing, late payment, reconnection, non-direct debit payment methods and incorrect fault reporting by the Customer. Such charges are published by ARCL from time to time and are published at www.airacom.com.

11.ADDITIONAL TERMS RELATING TO CHARGES FOR DATA SERVICES AND FIXED NETWORK SERVICES
11.1 The Charges for the Fixed Network Services and the Data Services shall be as detailed in the Order Form (subject always to clause 10.7) and as otherwise determined in accordance with the Contract.

11.2 Charges for line rental are payable from the Handover Date monthly in advance by direct debit or such other method as is specified in the Order.

11.3 The Customer shall pay for all Charges for calls whether made by the Customer or any third party. Subject to clause 11.4, ARCL shall invoice the Customer monthly in arrears for all call Charges and the Customer shall pay such invoice within 14 days of the date of the relevant invoice by direct debit.

11.4 Notwithstanding clause 11.2 and clause 11.3, ARCL reserves the right to invoice the customer for Charges at any time.

11.5 If ARCL supplies the Customer with any temporary Data Services and/or Fixed Network Services, it may charge the Customer in advance for the whole period during which the temporary services are to be provided.

11.6 ARCL shall have the right to charge a minimum fee for calls of not less than £4.50 per month if charges do not exceed this sum in any month.

12.ADDITIONAL TERMS RELATING TO CHARGES FOR MOBILE SERVICES

12.1 In respect of Wholesale Mobile Services the Customer acknowledges and agrees that in calculating its Charges for line rental ARCL has assumed that during the term of the Mobile Services Contract the retail prices index will remain the same as applicable at the commencement of the contract. The Customer agrees that, if there are any increases to the retail prices index which decreases ARCL’ after-tax rate of return, ARCL may at its discretion, increase the Charges for line rental to preserve its after-tax return provided that ARCL provides the Customer with not less than 30 days written notice of the increase, such increase to be capped at 5% in any one year.

12.2 Charges in respect of calls are subject to fluctuation or change by ARCL without notice to the Customer.

13.CANCELLATION CHARGE

If the Customer cancels a Service, ARCL may charge and the Customer shall pay a fee in respect of each such cancellation (Cancellation Fee).

14.LIMITATION OF LIABILITY

14.1 Nothing in the Contract shall limit or exclude ARCL’ liability for:

  • (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  • (b) fraud or fraudulent misrepresentation by ARCL; or(c)breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

14.2 Subject to clause 14.1, ARCL shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

  • (a) loss of profits;
  • (b) loss of sales or business;
  • (c) loss of agreements or contracts;
  • (d) loss of anticipated savings;
  • (e) loss of or damage to goodwill;
  • (f) loss of use or corruption of software, data or information;
  • (g) any indirect or consequential loss.
  • (h) any loss or consequential loss as a result of Toll Fraud, attack, viruses, interference, hacking, or other security intrusion and disclaims any liability relating thereto.

14.3 Subject to clause 14.1 and clause 14.2, ARCL’ total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall, in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, be limited to the equivalent of the total Charges paid by the Customer in that period for the Equipment and/or the relevant Service in respect of which the claim arose.

14.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.

14.5 If the Customer is a consumer, nothing in these Conditions shall prejudice its statutory rights.

14.6 This clause 14 shall survive termination of the Contract.

15.TERMINATION
15.1 Without limiting its other rights or remedies, ARCL may terminate the Contract (in whole or in part) without further liability to the Customer by giving the Customer not less than 30 days written notice.

15.2 Without limiting its other rights or remedies, ARCL may terminate the Contract (in the whole or in part) with immediate effect by giving written notice to the Customer if:

  • (a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of the Customer being notified in writing to do so;
  • (b) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  • (c) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
  • (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
  • (e) the Customer (being an individual) is the subject of a bankruptcy petition or order;
  • (f) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;
  • (g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
  • (h) the holder of a qualifying floating charge over the assets of the Customer
    (being a company) has become entitled to appoint or has appointed an administrative receiver;
  • (i) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
  • (j) any event occurs or proceedings are taken with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2(b) to clause 15.2(i) (inclusive);
  • (k) the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
  • (l) the Customer’s financial position deteriorates to such an extent that in ARCL’ opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
  • (m) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

15.3 Without limiting its other rights or remedies, ARCL may terminate the Contract (in whole or in part) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding amounts within 30 Business Days after being notified in writing to do so.

15.4 Without limiting its other rights or remedies, ARCL may suspend the provision of the Services under the Contract or any other contract between the Customer and ARCL if the Customer becomes subject to any of the events listed in clause 15.2(b) to clause 15.2(m), or ARCL reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

16.CONSEQUENCES OF TERMINATION

16.1 On termination of the Contract for any reason:

  • (a) the Customer shall immediately pay to ARCL all of ARCL’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, ARCL shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  • (b) the Customer shall return any Equipment which has not been fully paid for. If the Customer fails to do so, then ARCL may enter the Customer’s premises and take possession of the Equipment. Until it has been returned, the Customer shall be solely responsible for the safekeeping of such Equipment and will not use it for any purpose not connected with the Contract;
  • (c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination of the Contract shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
  • (d) clauses which expressly or by implication survive termination shall continue in full force and effect.

16.2 Where the Customer is a Small Business Customer, the Customer may terminate a Contract for Fixed Network Services or Data Services at any time prior to commencement of the supply of such Services.

17.FORCE MAJEURE

17.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of ARCL including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of ARCL or otherwise), failure of a utility service (including without limitation street cabling, network or infrastructure failure or fault), failure of a transport network, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers, subcontractors or utility suppliers.

17.2 ARCL shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

17.3 If the Force Majeure Event prevents ARCL from providing any of the Services for more than 10 Business Days, ARCL shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

18.GENERAL

18.1 Assignment and other dealings:

  • (a) ARCL may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract (in whole or in part) and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
  • (b)The Customer shall not, without the prior written consent of ARCL, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

18.2 Notices:

  • (a) Any notice or other communication was given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post or other next working day delivery service, commercial courier, or e-mail. (Emails to ARCL must be sent to sales@airacom.com).
  • (b) A notice or other communication shall be deemed to have been received:
    • (i) if delivered personally, when left at the address referred to in clause 18.2(a);
    • (ii) 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;
    • (iii) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
    • (iv) if sent by e-mail, one Business Day after transmission.
  • (c) A notice or other communication sent by email to ARCL must be sent to sales@airacom.com and if sent to a different email address shall not be deemed to have been received.
  • (d) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

18.3 Severance:

  • (a) If any provision or part-provision of the Contract 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 the Contract.
  • (b) If any provision or part-provision of this Contract 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.

18.4 Waiver: A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.5 No partnership or agency: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

18.6 Third parties: A person who is not a party to the Contract shall not have any rights to enforce its terms.

18.7 Variation: Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by ARCL reserves the right to make changes to these Conditions from time to time.

18.8 Information about ARCL operates the website www.airacom.com. ARCL is Airacom Limited, a company registered in England and Wales under company number 07675722 with its registered office on 3rd Floor, 207 Regent Street, London, England, W1B 3HH, UK. ARCL’ VAT number is 118941795. Please refer to ARCL’ website at www.airacom.com for information about how to contact us.

18.9 Dispute resolution: The Customer must notify any complaints or disputes ARCL in accordance with its Complaints and Dispute Resolution Procedure available at www.airacom.com ARCL shall use reasonable endeavours to resolve any complaint or dispute. Further information concerning the Customer’s rights in relation to any dispute or complaint are specified in the Complaints and Dispute Resolution Procedure.

18.10 Governing law: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

18.11 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

THIS AGREEMENT IS NOT CANCELLABLE

We will charge you under clause 2(f) for the costs and expenses we incur if you breach this Agreement and we have to enforce it or under clause 8(b) if you fail to return the Equipment when this Agreement ends and under clause 13(a) if any payment is not made on time you will be charged interest of 5% above the Finance House base rate per calendar month subject to a minimum of £140 + VAT on the overdue amount from the date that you should have paid until it is made. We will charge you the cost of any insurance which may be required under Clause 5(d) and, if we arrange insurance, a Fee as explained in Clause 5(e). If we end your hiring under this Agreement early in accordance with clause 9, you will be liable to pay an amount calculated in accordance with clause 11. You will be charged an Administration Fee of £140 plus VAT which is payable with the First Rental and an Annual Service Fee of £40 plus VAT payable on each anniversary of the Agreement under clause 2(a).

MISSING PAYMENTS

Missing payments could have severe consequences and may make obtaining credit more difficult.

IMPORTANT—READ THIS CAREFULLY TO FIND OUT ABOUT YOUR RIGHTS

The Consumer Credit Act 1974 covers this Agreement and lays down certain requirements for your protection which should have been complied with when this Agreement was made. If they were not, the owner cannot enforce this Agreement against you without getting a court order. If you would like to know more about your rights under the Act, contact either your local Trading Standards Department, or your nearest Citizens’ Advice Bureau.