SERVICE
In this Agreement “Service” means the Service or Services,
duties or responsibilities indicated overleaf. BD1 Services Limited,
(whose registered office is at Alexander House, 106 Pembroke
Road, Ruislip, Middlesex, HA4 8NW) agrees to provide the Service to
the Customer whose details appear overleaf (together with any subsisting
or associated Company at whose request or on whose behalf the Service
is provided) and the Customer agrees to use the Service on the terms
set out. In this Agreement these terms shall apply to the exclusion
of all other Terms or Conditions including any terms or Conditions
which the Customer may purport to apply under any purchase, confirmation
of Order or similar document. Any variation of these terms including
any special Terms and Conditions agreed between the Parties shall
be inappropriate unless agreed in writing by BD1 Services Limited.
2. DURATION
Unless otherwise stated in the Order Form, this Agreement shall come
into force on the date on which the Order Form shall be accepted by
BD1 Services Limited (“the Commencement Date”) and shall
(subject to earlier termination in accordance with Condition 9) continue
in force for a period of 24 months from the Commencement.
3. AUTODIALLER EQUIPMENT
In the event that BD1 Services Limited agrees to let on hire and
maintain any equipment, as described overleaf (“the equipment”),and
the Customer agrees to rent the equipment from BD1 Services Limited
for the term specified overleaf, the following terms and conditions
shall apply:
3.1 BD1 Services Limited shall deliver the
equipment to the customer. Whilst BD1 Services Limited will take all
reasonable steps to deliver within the period quoted, any such date
(including any delivery date shown overleaf) shall be treated as an
estimate only and shall not be a term of this Agreement.
3.2 BD1 Services Limited or its appointed
agent shall install the equipment at the Customers site
3.3 The Customer shall be responsible for the equipment.
whilst it is in the Customer's custody and shall indemnify BD1 Services
Limited against loss or damage to the equipment save that the Customer
shall not be responsible for loss or damage attributable to any willful
act, fault or omission of BD1 Services Limited. It shall be the responsibility
of the Customer to notify BD1 Services Limited immediately of any
loss or damage to the equipment.
3.4 Upon notification of a fault (and provided that
such fault shall arise from normal and proper use of the equipment),
BD1 Services Limited shall use its reasonable endeavours, during normal
working hours to attend to such fault.
3.5 BD1 Services Limited shall have no responsibility
for faults arising from:
3.5.1 The Customer's negligence or default: or
3.5.2 Any act or omission associated with
any other
telecommunications system not run by BD1 Services Limited; or
3.5.3 Any other cause beyond the control of BD1
Services Limited
3.6 BD1 Services Limited 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 or where a fault has arisen
(in the reasonable opinion of BD1 Services Limited) from non-normal
or improper use of the equipment.
3.7 Unless otherwise agreed 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 BD1 Services Limited, which consent will not be reasonably withheld.
Any such alteration and changes aforesaid will, if appropriate, be
carried out by BD1 Services Limited
3.8 BD1 Services Limited reserves the right to charge
the Customer for all costs incurred as a result of carrying
out maintenance or repair work at the request of the Customer which
in BD1 Services Limited's reasonable opinion is considered unnecessary.
4. PAYMENT
4.1 The Customer shall pay the charges for the Service
as stated in BD1 Services Limited's tariff as current from time to
time. All charges are inclusive of Value Added Tax and all charges
are subject to change upon BD1 Services Limited giving not less than
thirty days prior written notice to the Customer.
4.2 All charges payable under this Agreement shall
be calculated by reference to data recorded or logged by BD1 Services
Limited and not by reference to data recorded or logged by the Customer
4.3 The Customer shall be invoiced monthly by BD1
Services Limited for all charges under this Agreement together with
Value Added Tax. Payment is due within fourteen days of the invoice
date. The time of payment of all sums due to BD1 Services Limited
under this Agreement shall be of the essence of the Agreement. Any
Invoice which is not paid on the due date shall bear Interest from
day to date at the annual rate of 18%
4.4 All sums due to BD1 Services Limited under this
Agreement shall be paid in full by the Customer on due date.
4.5 BD1 Services Limited shall be entitled to levy
a monthly rental fee for the equipment, such fee to be notified to
the Customer BD1 Services Limited in writing.
4.6 BD1 Services Limited shall be entitled to levy
an
installation fee (which shall be notified to the Customer on installation)
for the equipment, which BD1 Services Limited agrees to waive provided
that the Customer does not terminate this Agreement within the minimum
period as prescribed by BD1 Services Limited. Such fees hall become
payable upon the date this Agreement is terminated by the Customer
inside the minimum period prescribed.
4.7. BD1 Services Limited may at its 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;
4.7.1. Any monies due are unpaid by the Customer
4.7.2 The Customer is in breach of any term of this
Agreement; or
4.7.3 The Customer prevents or delays pre-arranged
maintenance from being carried out; or
4.7.4. The Customer is suspected in BD1 Services
Limited's reasonable opinion, of involvement with fraud or attempted
fraud in connection with the use of the Service.
5. USE OF THE SERVICE
The Customer undertakes to use the Service in accordance with such
additional conditions as maybe notified in writing to the Customer
by BD1 Services Limited from time to time.
6 PROVISION OF INFORMATION
The Customer undertakes to promptly provide BD1 Services Limited,
free of charge, with all information documentation or other material
and data and cooperation that BD1 Services Limited may reasonably
require to enable it to proceed without interruption with the performance
of its obligations under this Agreement. The Customer shall ensure
the accuracy of any information (whether written or oral) provided
to BD1 Services Limited.
7 LIABILITY
7.1 Nothing in this Agreement shall exclude or restrict
the liability of BD1 Services Limited for death or personal injury
resulting from the negligence of BD1 Services Limited or its employees
while acting in the course of their employment.
7.2 Subject to Condition 7.3. BD1 Services Limited
shall be liable for the damage to the property of the Customer caused
by any negligent act or omission of BD1 Services Limited or its employees
provided that such liability of BD1 Services Limited in contract,
tort or otherwise, including any liability for negligence, howsoever
arising out of or in connection with the performance of BD1 Services
Limited's obligations under this Agreement shall be limited to £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. BD1 Services Limited shall not be liable to
the Customer in contract (including any liability for negligence),
tort orotherwise, for any loss of revenue, business, goodwill, anticipated
savings or profit or of any indirect or consequential loss however
arising (including loss or damage suffered by the Customer as a result
of an action brought by a third party) even if such loss was reasonably
foreseeable or BD1 Services Limited had been advised of the possibility
of the Customer incurring the same.
7.4 In the event of any failure in the Service,
BD1 Services Limited 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. BD1 Services Limited shall not be liable in
any
circumstances for making good Customer premises in the event of the
removal of the equipment
7.7. BD1 Services Limited shall not be liable for
any loss or damage whatever due to failure to deliver the equipment
promptly or at all
7.8. Notwithstanding that BD1 Services Limited may
have delayed or failed to deliver the equipment promptly the Customer
shall be bound to accept delivery.
7.9. BD1 Services Limited shall be under no liability
whatever to the Customer for any indirect loss and/or expense (including
loss of profit) suffered by the Customer arising out of a breach by
BD1 Services Limited
8. AVAILABILITY
8.1 BD1 Services Limited will use all reasonable
endeavours to ensure that the Services are available for the use by
the Customer in accordance with the service standards for the time
being set out in BD1 Services Limited's service literature, subject
to the Terms of this Agreement. BD1 Services Limited may (entirely
at its own discretion) from time to time introduce, alter or withdraw
compensation schemes should BD1 Services Limited fail to achieve that
standard of service set out in its service literature.
8.2 BD1
Services Limited may at any time without notifying the Customer make
any changes to the Service which are necessary to comply with any
applicable safety or other statutory requirements, or which do not
materially affect the nature or quality of the Service.
9 TERMINATION
9.1 Without prejudice to their respective rights
under this Agreement BD1 Services Limited and the Customer shall each
have the right to terminate this Agreement forthwith by notice in
writing in the event that:
9.1.1 The other party is in default in its performance
or observance of any of its material obligations under this Agreement,
and, in the case of 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
9.1.2 An interim order is applied for or made, or
a voluntary arrangement approved, or if a petition for bankruptcy
order is presented or 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 voluntary arrangement is proposed or approved or
an administration order is made, or a receiver or administrative receiver
is appointed over any of the party's assets or undertaking or a winding
up resolution or petition is passed or presented (otherwise than for
the purposes of reconstruction or amalgamation) or if any circumstances
arise which entitle the court or a creditor to appoint a receiver,
administrative receiver or administrator to present a winding-up petition.
9.2 Without prejudice to its other rights, BD1 Services
Limited shall have the right forthwith to terminate this Agreement
by notice in writing to the Customer in the event that;
9.2.1 The Customer fails to make any payment when
it becomes due to BD1 Services Limited; or
9.2.2 Any licence or other consent considered by
BD1 Services Limited to be required by it in order to perform its
obligations under this Agreement (whether for regulatory or economic
reasons or otherwise) expires or is revoked; or
9.2.3 A licence under which the Customer has the
right to run its telecommunications system and connect it to the BD1
Services Limited system is revoked, amended or otherwise ceases to
be valid and is not immediately replaced by another valid licence.
10. GENERAL
10.1 This Agreement may not be assigned in whole,
or in part, by the Customer without the prior written consent of BD1
Services Limited, such consent not to be unreasonably withheld
10.2 Even though this Agreement may have been terminated,
any Clause that it is intended to have effect following termination
shall survive and continue in effect.
10.3. Neither party shall be in breach of this Agreement
if there is any total or partial failure of performance by it of its
duties and obligations under this Agreement occasioned by any act
of God, fire, act of Government or State, war, civil commotion, insurrection,
embargo, prevention from or hindrance in obtaining any raw materials,
energy or other supplies, labour disputes of whatever nature and any
other reason beyond control of either party. If either party is unable
to perform its duties and obligations under this Agreement as a direct
result of the effect of one of those reasons that party shall give
written notice to the other of the inability stating the reason in
question.
10.4. If any provision or term of this Agreement
or any part thereof shall become or be declared illegal, invalid or
unenforceable for any reason whatsoever including but without limitation
by reason of the provisions of any Legislation or other provisions
having the force of Law or by reason of any decision of any Court
or other Body or Authority having jurisdiction over the parties or
this Agreement including the EU Commission and the European Court
of Justice such terms or provisions shall be divisible from this Agreement
and shall be deemed to
be deleted from this Agreement in the jurisdiction in
question PROVIDED ALWAYS THAT if any such deletion
substantially affects or alters the commercial basis of this Agreement
the parties shall negotiate in good faith to amend and notify the
provisions and terms of this Agreement as may be necessary or desirable
in the circumstances.
10.5. This Agreement TOGETHER WITH any
additional terms introduced pursuant to Clauses 4.1.5. and 8 embodies
and sets forth the entire Agreement and understanding of the parties
and supersedes all prior, oral or written Agreements, understandings
or arrangements relating to the subject matter of this Agreement.
Neither party shall be entitled to rely on any Agreement, understanding
or arrangement which is not expressly set forth in this Agreement.
10.6.1. Any notice, Invoice or other document to
be given under this Agreement shall be in writing and shall be deemed
to have been duly given if left or sent by First Class Post or Registered
Post, or facsimile or other electronic media to a party at the address
or relevant telecommunications number for such party or such other
address as the party may from time to time designate
10.6.2. Any such notices and documents shall be
in the English language. Any notice or other document shall be deemed
to have been delivered by the addressee two working days following
the date of despatch of the notice or other document by Post or, where
the notice of other document is sent by hand or is given by facsimile
or other electronic media, simultaneously with the delivery or transmission.
To prove the giving of a notice or other document it shall
be sufficient to show that it was despatched.
10.7 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.
10.8. BD1 Services Limited's address for service
of any Notice hereunder shall be at such address as appears on the
last Invoice rendered to the Customer or such other address as may
be prescribed by BD1 Services Limited for that purpose
10.9.1. The validity, construction and performance
of this Agreement shall be governed by English Law.
10.9.2. All disputes, claims or proceedings between
the parties relating to the validity, construction or performance
of this Agreement shall be subject to the jurisdiction of the English
Courts.
BD1 Services Limited Alexander House 106 Pembroke Road, Ruslip Middlesex,
HA4 8NW
Tel: 0845 2708800 Fax: 01895 671509 e-mail: service@bd-1.co.uk Website:
www.bd-1.co.uk
Company No: 5418156 England
Close
