| 1 |
Service
In this agreement
"service" means the service or services indicated on the front page.
Amcall Communications Limited ("AMCALL") agrees to provide the Service to
the Customer and the Customer agrees to provide the Service on the terms
set out in this agreement. |
| 2 |
Duration
This agreement shall come into full
force and effect from the date of acceptance by AMCALL and shall continue
unless terminated by either party giving to the other not less than one
months prior written notice. |
| 3 |
Autodialler Equipment
In the event that AMCALL
agreed to let on hire and maintain any equipment described overleaf and
the Customer agrees to rent such equipment from AMCALL for the term
specified overleaf, the following terms and conditions shall apply: |
| 3.1 |
AMCALL shall deliver the equipment to the
Customer. Any delivery date specified shall be treated as an estimate only
and whilst AMCALL will take all reasonable steps to deliver within the
period quoted, such date shall be treated as an estimate only and shall not
be a term of this Agreement. |
| 3.2 |
AMCALL or its appointed agent shall install the
equipment at the Customers site. |
| 3.3 |
The equipment shall at all times remain the
property of AMCALL and at all times when the ownership of the equipment is
in question, the Customer shall advise the third party that the equipment
is the property of AMCALL. |
| 3.4 |
The Customer shall be responsible for the
equipment whilst it is in the Customer's custody and shall indemnify
AMCALL against any loss or damage to the equipment save that the Customer
shall not be responsible for any loss or damage attributable to the
willful act, fault or omission of AMCALL. It shall be the responsibility
of the Customer to notify AMCALL immediately of any loss or damage to the
equipment. |
| 3.5 |
Upon notification of a fault, AMCALL shall use
its reasonable endeavours, during AMCALL's normal working hours to attend
such fault PROVIDED THAT the fault has arisen from normal use of the
equipment. |
| 3.6 |
AMCALL has no responsibility for faults arising
from: |
| 3.6.1 |
the Customer's negligence or default: or |
| 3.6.2 |
any act or omission associated with any other
telecommunications system not run by AMCALL; or |
| 3.6.3 |
any other cause beyond the control of
AMCALL |
| 3.7 |
AMCALL shall have the right to charge the
Customer in the event that the need for maintenance results from any of
the events in Conditions 3.6 |
| 3.8 |
The Customer agrees not to carry out or procure
the carrying out of any alterations, modifications, replacements,
extensions, attachments, additions or otherwise after the equipment has
been installed except with the prior written consent of AMCALL, which
consent will not be unreasonably withheld. Any alterations and changes as
aforesaid will, if appropriate, be carried out by AMCALL. |
| 3.9 |
AMCALL reserves the right to charge the Customer
for all costs incurred as a result of carrying out maintenance or repair
work which in AMCALL's reasonable opinion is considered unnecessary. |
| 4 |
Payment |
| 4.1 |
Pricing the service shall be as stated in
AMCALL's as current from time to time. All prices are exclusive of Value
Added Tax and all prices are subject to change upon AMCALL giving not less
than thirty days prior written notice to the Customer. |
| 4.2 |
All sums due to AMCALL under this Agreement shall be paid in full by
the Customer without any off-set whatsoever. |
| 4.3 |
The Customer shall be invoiced monthly by AMCALL
for all charges under this Agreement plus Value Added Tax. Payment is due
within fourteen days of the invoice date. The time of payment of all sums
due to AMCALL under this Agreement shall be of the essence of this
Agreement. If payment in full is not received by AMCALL upon the due date,
AMCALL reserve the right to raise a separate invoice in respect of any
overdue account at the rate of 4 per cent per annum above the Barclays
Bank Base Rate in force at that date. |
| 4.4 |
All charges payable under this Agreement shall be
calculated by reference to data recorded or logged by AMCALL and not by
reference to data recorded or logged by the Customer. |
| 4.5 |
AMCALL shall be entitled to levy a monthly rental
fee for the equipment. |
| 4.6 |
AMCALL shall be entitled to levy an installation
fee for the equipment, which AMCALL agrees to waive provided that the
Customer does not terminate this agreement within the minimum period as
prescribed by AMCALL. |
| 5 |
Use of the service
The Customer undertakes to use the Service in
accordance with such conditions as may be notified in writing to the
Customer by AMCALL from time to time. |
| 6 |
Provision of Information
The Customer
undertakes to promptly provide AMCALL, free of charge, with all
information and co-operation that AMCALL may reasonable require to enable
it to proceed without interruption with the performance of its obligations
under this Agreement. |
| 7 |
Liability |
| 7.1 |
Nothing in this Agreement shall exclude or
restrict AMCALL's liability for death or personal injury resulting from
the negligence of AMCALL or its employees while acting in the course of
their employment. |
| 7.2 |
Subject to condition 7.3 AMCALL shall be liable
for the damage to the property of the Customer caused by any negligent act
or omission of AMCALL or its employees provided that such liability of
AMCALL is in contract, tort or otherwise, including any liability for
negligence, howsoever arising out of or in connection with the performance
of AMCALL's obligations under this agreement shall be limited of £20,000
for any one incident or £50,000 for any series of incidents arising from a
common cause in any twelve month period. |
| 7.3 |
AMCALL shall not be liable to the Customer in
contract, tort or otherwise, including any liability for negligence, for
any loss of revenue, business, anticipated savings or profit or of any
indirect or consequential loss however arising. |
| 7.4 |
In the event of any failure of the Service,
AMCALL shall not be liable to the Customer for any charges incurred by the
Customer should the Customer divert its traffic to another carrier. |
| 7.5 |
The provisions of this Condition 7 shall continue
to apply notwithstanding the termination of this Agreement. |
| 7.6 |
AMCALL shall not be liable in any circumstances
for making good Customer premises in the event of normal removal of the
equipment. |
| 8 |
Termination |
| 8.1 |
Without prejudice to their rights under the
Agreement AMCALL and the Customer shall have the right to terminate this
Agreement forthwith in the event that: |
| 8.1.1 |
The other party is in default in its performance
or observance of any of its obligations under this Agreement, and, in the
case of a remediable breach, fails to remedy the breach within a
reasonable time specified by the non defaulting party in its written
notice to do so: or |
| 8.1.2 |
An interim order is applied for or made, or a
voluntary arrangement approved, or if a petition for bankruptcy order
is presented or a bankruptcy order is made against the other party, or if
a receiver or trustee in bankruptcy is appointed of the other party's
estate or a voluntary arrangement is proposed or approved or an
administration order is made, or a receiver or administrative receiver is
appointed or any of the party's assets or undertaking or a winging-up
resolution or petition is passed or presented (otherwise for the
purpose of reconstruction or amalgamation) or if any circumstances arise
which entitle the court or creditor to appoint a receiver, administrative
receiver or administrator to present a winding-up petition or make a
winding order. |
| 8.2 |
Without prejudice to its other rights, AMCALL
shall have the right forthwith to terminate this Agreement by notice in
writing to the Customer in the event that; |
| 8.2.1 |
The Customer fails to make any payment when it
becomes due to AMCALL; or |
| 8.2.2 |
A licence under which the customer has the right
to run its telecommunications system and connect it to the AMCALL system
is revoked, amended or otherwise ceases to be valid and is not immediately
replaced by another valid licence. |
| 8.3 |
In the event of termination by AMCALL under
conditions 8.1.1, 8.1.2, 8.2.1, or 8.2.2 AMCALL shall be entitled to
recover from the Customer all costs, losses and expenses incurred by
AMCALL including but not limited to the cost of removing the Service from
the Customer's premises. |
| 9 |
Suspension of Service
AMCALL may at its sole
discretion elect to suspend forthwith the provision of the Service until
further notice without liability to the Customer on notifying the Customer
either orally, (confirming the same in writing) or in writing in the event
that; |
| 9.1 |
The Customer is in breach of any term of this
Agreement; or |
| 9.2 |
The Customer prevents or delays prearranged
maintenance from being carried out; or |
| 9.3 |
The Customer is suspected in AMCALL's reasonable
opinion, of involvement with fraud or attempted fraud in connection with
the use of the Service. |
| 10 |
General |
| 10.1 |
This agreement may not be assigned in whole, or
in part, by the Customer without prior written consent of AMCALL, such
consent not to be unreasonably withheld. |
| 10.2 |
Neither party shall be liable to the other for
any loss or damage which may be suffered by the other party due to any
cause beyond the first party's reasonable control. |
| 10.3 |
This Agreement represents the entire Agreement
and understanding of the parties with respect to the subject matter hereof
and supersedes all prior undertakings and representations, whether written
or oral and this Agreement may only be modified if such modification is in
writing and signed by AMCALL and the Customer. |
| 10.4 |
Failure by either party to exercise or enforce
any right conferred by this Agreement shall not be deemed to be waiver of
any such right nor operate so as to bar the exercise or enforcement
thereof, or of any other right on any later occasion. |
| 10.5 |
Any notice, invoice or other document which may
be given by either party under this Agreement shall be deemed to have been
given if left or sent by post or facsimile transmission (confirming the
same by post) to an address notified by the other party as an address to
which notices, invoices or other documents may be sent. |
| 10.6 |
AMCALL's address for service of any notice
hereunder shall be such address as appears on the last invoice rendered to
the Customer or such other address as may be prescribed by AMCALL for that
purpose. |
| 10.7 |
This agreement shall be governed by construed and
interpreted in accordance with English or Scottish law as appropriate and
the parties hereby submit to the exclusive jurisdiction of English or
Scottish Courts. |
