Terms & Conditions

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.

COMPENSATION AND REFUNDS

Our service provision to you is dependent upon the continued operation of the major networks, in particular Openreach. If service is lost for any reason we will claim compensation on your behalf at the scales appropriate to your particular network.

DATA PROTECTION

Airacom Limited is registered with the Data Protection Agency to hold information necessary to supply services to our customers. Our registration number is C1099388.