TERMS AND CONDITIONS OF SERVICE
1. Application
1.1 These Terms and Conditions shall apply to the provision of the rental of equipment and data charges by the Provider to the Customer.
1.2 In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Customer or otherwise) the former shall prevail unless expressly otherwise agreed by the Provider in writing.
2. Definitions and Interpretations
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Agreement” |
means the Agreement entered into by the Customer and the Provider to which these Terms and Conditions apply; |
“Business Day” |
means any normal working day other than Saturdays, Sundays, statutory, public and bank holidays; |
“The Commencement Date” |
means the commencement date for these Terms and Conditions as set out in the Specification of Services Schedule hereto; |
“The Customer” |
|
“The Provider” |
Net Locations Limited whose registered office is at Foster Lewis Stone 302-308 Preston Road Wembley Middlesex HA3 0QP; |
“Services" means the services to be provided by the Provider to the Provider as set out in Schedule A; |
means the services to be provided by the Provider to the Customer as set out in the Specification of Services Schedule hereto; |
“Equipment” |
means the Equipment listed in the Equipment Schedule hereto and shall include all updated or replacement parts and any additional equipment supplied by The Provider from time to time; |
“Fees” |
means any and all sums payable by the Customer to the Provider under these Terms and Conditions. |
“Working Hours” |
means 0900 to 1700 hours; |
“Rental Period” |
means the period from the Commencement Date until the date on which the Customer returns the Equipment in accordance with Condition 11.3 subject always to a minimum period of one week; |
2.2 Any reference in these Terms and Conditions to a statute or a provision of a statute shall be construed as a reference to that statue or provision as amended or re-enacted from time to time.
2.3 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
3. Commencement of Rental
3.1 The Provider will deliver the Equipment at the Provider’s risk to the Customer at the address shown on the confirmation of order.
3.2 Risk of damage to or loss of the Equipment, howsoever caused, will pass to the Customer upon delivery.
3.3 The Provider will use all reasonable endeavours to deliver the Equipment on the Commencement Date but will have no liability to the Customer for any delay caused by circumstances beyond its reasonable control.
3.4 The Customer will accept the Equipment on and in any event with effect from the Commencement Date and if for any reason the Customer fails to accept the Equipment on that date the Customer shall nevertheless be liable for all or any costs associated with the loss of rental, delivery and return costs (it being agreed that such losses represent the Provider’s actual damage and are not imposed as a penalty) unless the Customer's failure is due wholly to the negligent act and/or omission of the Provider.
4. Provider’s obligations
4.1 With effect from the Commencement Date the Provider shall, in consideration of the Fees, provide the Services specified in the Specification of Services Schedule hereto or as otherwise agreed under these Terms and Conditions.
4.2 The Provider will use reasonable care and skill to perform the Services specified in the Specification of Services Schedule or as otherwise agreed under these Terms and Conditions.
4.3 The Provider will use reasonable endeavours to maintain the functionality of any hardware and software which may be installed or otherwise operative on the Equipment.
4.4 Upon receipt of the Customer’s reasonable and/or proper request for support and/or rectification of any defect the Provider shall provide within a reasonable period of time such support as is reasonably required and shall carry out all Services as specified in the Specification of Services Schedule during Working Hours until all reasonably required work is completed.
4.5 The Provider will not guarantee the performance of any hardware or software which the Provider has undertaken to install.
4.6 The Provider shall not be responsible for the availability and/or content of any websites or material the Customer accesses or seeks to access by using the Equipment.
4.7 The Provider shall not be responsible for the Customer’s dealings with any third party accessed through and/or contacted by using the Equipment.
4.8 The Provider shall use all reasonable endeavours to complete its obligations under the Specification of Services Schedule. The parties agree that time will not be of the essence in the performance by the Provider of any of its obligations hereunder.
5. Customer’s Obligations
5.1 The Customer shall:
5.1.1 allow the Provider access to the Equipment and all relevant hardware and software for investigation purposes;
5.1.2 provide adequate working space and facilities for the Provider’s employees servants or agents to enable the Provider to fully and/or properly fulfil its obligations hereunder; and
5.1.3 co-operate with the Provider in the diagnosis of any defect or malfunction in the Equipment or any part of it.
5.2 The Customer shall allow the Provider the use of any Equipment, computer systems, peripherals or other hardware or software necessary to enable it to provide the Services and shall be responsible for procuring, installing and maintaining all communications media not supplied by the Provider.
5.3 The Customer will not allow any changes or modifications to the hardware or software to be made by any party other than those authorised expressly by the Provider in writing. If such changes or modifications are carried out without due authorisation the Provider reserves the right terminate the Agreement forthwith and look to the Customer for the immediate return of the Equipment and to indemnify it for all and any costs thereby incurred including those arising to re-instate the hardware and/or software to their original condition.
5.4 The Customer will make freely available to the Provider all documentation associated with the Equipment, working documents, original software and hardware installation media for the efficient maintenance of the Equipment hardware and software.
5.5 The Customer shall take all reasonable precautions to ensure the safety and health of the Provider’s employees servants or agents while such are at the Customer’s premises.
5.6 It is agreed that these Terms and Conditions and/or the use of the Equipment does not create a joint venture, partnership or agency relationship between the Provider and the Customer.
6. Price
6.1 The Customer agrees to pay the Fees.
6.2 The Provider reserves the right to demand the payment of a deposit from the Customer in the sum of £350 such sum to be paid prior to the Commencement Date and which sum shall be deducted from the final invoice to be tendered under this Agreement from the Provider to the Customer save in circumstances and to the extent where the Equipment is lost or damaged and utilised to replace or repair it.
6.3 The Provider shall be entitled to recover from the Customer his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
6.4 The Customer shall pay the Provider for any additional services provided by the Provider and as requested by the Customer that are not specified in the Specification of Services Schedule in accordance with the Provider's daily rate in effect at the time of the performance or such other rate as may be agreed between the parties in writing. Any such charge for additional services shall be invoiced separately from any Fees due under the Specification of Services Schedule.
6.5 All sums payable pursuant to these Terms and Conditions are exclusive of any value added or other tax or other taxes on profit, for which the Customer shall be additionally liable.
7. Payment
7.1 All payments required to be made pursuant to these Terms and Conditions shall be made within 30 days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as the Customer is required to deduct or withhold by law.
7.2 The time of payment shall be of the essence. If the Customer fails to make any payment by or on the due date in respect of any sum due under these Terms and Conditions then the Provider shall have the right to charge the Customer interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from the due date for payment until the date on which the payment is received.
7.3 Fees due to the Provider are payable at the end of the Rental Period (subject to Clause 7.4) although the Provider has the discretionary right to seek an interim payment from the Customer when the value of unpaid accumulated call or data charges
(excluding VAT) exceed £50.
7.4 The Customer will pay the Fees with effect from when the time rental commences until:
(a) the Equipment is returned in accordance with these Terms and Conditions;
or
(b) the Provider receives notification (corroborated by a police reference number) from the Customer that the Equipment is lost or stolen.
7.5 If the Provider does not receive all the details of charges from third party networks before the end of the Rental Period, the Provider shall incorporate such charges to an invoice to be delivered to the Customer after the Rental Period and paid by the Customer to the Provider.
7.6 The Customer shall pay the manufacturer’s full retail price to the Provider for any Equipment, which is damaged or dirty or not returned at the end of the Rental Period fair wear and tear excepted.
8. Variation and amendments
8.1 If the Customer wishes to vary any details of the Specification of Services Schedule it must make request of the Provider in writing as soon as is reasonably possible. The Provider shall use all reasonable endeavours to make any reasonably required changes and any additional costs thereby incurred shall be the liability of the Customer and separately invoiced to the Customer
8.2 If, due to circumstances beyond the Provider’s control, it has to make any change in the arrangements relating to the provision of the Services it shall notify in writing the Customer forthwith. The Provider shall endeavour to keep such changes to a minimum and shall seek to offer the Customer arrangements as close to the original arrangements as is reasonably possible in the circumstances.
9. Use of Equipment
9.1 On delivery the Provider will provide an instruction leaflet on the use of the Equipment to the Customer. The Customer will only use the Equipment in a careful and proper manner and in accordance with the instructions provided. Neither the Customer nor anyone on its behalf whether employee servant agent or otherwise is permitted to interfere with the Equipment in any way.
9.2 The Customer is not authorised to act as the Provider’s agent and the Customer will, at all times, remain liable for any use of the Equipment by any third parties.
9.3 The Customer must take all steps necessary to ensure that no user of the Equipment whether by itself its employees servants or agents uses the Equipment or any part of it to post or download any undesirable or unlawful or illegal data or to access any site in relation thereto or any pornographic or copyrighted material including but not limited to music or film or engage in computer hacking and other related activities or attempt to disable or compromise security of information contained on the Equipment or any part of it and with regard to which the Provider shall not be liable to the Customer its employees servants or agents or any third party whatsoever or howsoever arising.
9.4 The Customer understands that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”) are the sole responsibility of the person from whom such Content originated.
9.5 The Customer understand that it is responsible for its own conduct and any Content that it creates, transmits or displays whilst using the Equipment.
10. Notification
10.1 If the Equipment is not in working order when delivered or subsequently breaks down the Customer must notify the Provider immediately.
10.2 The Provider will repair or replace the Equipment as soon as is possible after the Customer notifies the Provider (time not being of the essence) and will credit the Customer with the full cost of rental for the period in which the Customer is unable to use the Equipment as the result of the fault provided that the breakdown is not due to mishandling and/or misuse by the Customer its employees servants or agents.
10.3 If the Provider finds that Equipment reported as faulty is in working order then the Customer will pay the cost of collection and delivery of the replacement Equipment.
10.4 The Customer must notify the Provider immediately if the Equipment is damaged, lost or stolen.
11. Termination
11.1 The Provider may terminate this Agreement forthwith if:
11.1.1 the Customer is in breach of any of its obligations hereunder; or
11.1.2 the Customer has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets; or
11.1.3 the Customer has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986; or
11.1.4 the Customer ceases or threatens to cease to carry on business; or
11.1.5 any circumstances whatsoever beyond the reasonable control of the Provider necessitate and justify the termination of the Services.
11.3 Unless otherwise agreed with the Provider the Customer shall return the Equipment to the Provider at PO Box 79 Radlett Hertfordshire WD7 8ZR at the end of the Rental Period in good working order and in the same condition as when it was delivered to the Customer.
11.4 If the Customer commits a material breach of these Terms and Conditions, such as, but not limited to, using the Equipment in an improper manner and in contravention of Clause 9, then the Provider may require the return of the Equipment forthwith without being obliged to repay any portion of the Rental Charges.
11.5 Under no circumstances shall the Customer retain the Equipment under this Agreement for longer than the Rental Period.
12.1 The Customer shall indemnify the Provider against all liability, damages, costs, claims and expenses including legal fees suffered by the Provider arising from loss or damage arising out of a breach of these Terms and Conditions and/or to the Equipment (including that of third parties) caused by the Customer, or its agents servants or employees.
12.2 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
12.3 The Provider shall not be liable to the Customer or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of the Provider's obligations if the delay or failure was due to any cause beyond the Provider's reasonable control.
12.3 The Provider warrants that the Equipment will be in working order when it is delivered to the Customer but the Provider has no control over the operation of the telephone network to which it is connected or the security of information transmitted on the Equipment and accordingly cannot be responsible for any failures of the telephone network or security breaches.
12.4 The Provider will not refund monies paid by the Customer due to lack of coverage.
12.5 The Provider’s liability to the Customer, whether in contract, tort or otherwise, shall be limited to the total of the Rental Charges actually paid to the Provider by the Customer as at the date the claim subject to full proof arose.
12.6 Nothing in this Clause 12 shall apply so as to limit or exclude the Provider’s liability for:
(a) death or personal injury resulting from the Provider’s negligence;
(b) breach of the terms as to title, freedom from encumbrance or quiet
possession implied by the Sale of Goods Act 1979 or the Supply of
Goods and Services Act 1982;
(c) any claim arising under the Consumer Protection Act 1987;
(d) fraudulent misrepresentation; or
(e) where the customer is a “Consumer”, within the terms of the Unfair
Contract Terms Act 1977, breach of any terms implied by the Supply of
Goods and Services Act 1982.
12.8 The Provider shall not be liable to the Customer for any breach of its obligations under this Agreement, in tort or otherwise if such breach is caused by circumstances beyond its reasonable control.
12.9 The Provider shall not be liable to the Customer should any third party use the Equipment or any part of it to hack in to the Customer’s hardware.
13. Fair Use Policy
13.1 The Provider imposes a fair usage policy on unlimited data packages as governed by its network provider. This limit equates to 500MB of data per day, 1.25GB of data per week or 5GB of data per 28 days.
13.2 The charges for exceeding this data usage is £0.75 (plus VAT) per MB of data used.
13.3 The Provider’s network provider reserves the right in relation to the Provider to alter the terms of its fair usage policy from time to time as in consequence does the Provider in relation to the Customer. The Provider has no control over any such changes although it reserves the right to impose such changes upon the Customer and will advise the Customer of any such changes as soon as it is able to do so.
14. Ownership
14.1 The Equipment shall at all times remain the property of the Provider and the Customer shall have no rights to the Equipment except to use it in accordance with this Agreement.
14.2 Where a mobile telephone number is provided for the supply of airtime the Customer acknowledges and agrees that it is not entitled to the continued use of the telephone number associated with the Equipment after the termination of this Agreement and that the mobile telephone number will be required by the Provider at the end of the Rental Period and subsequently provided to another customer
15. Sub-Contracting and Assignment
The Provider may sub-contract to third parties all or any part of the work to be performed by it hereunder. The Customer shall not assign to any third party any or all of its rights or obligations under these Terms and Conditions without the prior written consent of the Provider such consent not to be unreasonably withheld.
16. Force Majeure
16.1 Neither the Provider nor the Customer shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of their obligations in relation to the Services, if the delay or failure was due to any cause beyond that party’s reasonable control. Without prejudice to the generally of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:-
16.2 act of God, explosion, flood, tempest, fire or accident;
16.3 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
16.4 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
16.5 import or export regulations or embargoes;
16.6 strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of either the Provider or the Customer or of a third party);
16.7 difficulties in obtaining raw materials, labour, fuel, part or machinery;
16.8 power failure leading to the breakdown in any machinery or Equipment or any part of it.
17. Waiver
17.1 No waiver by the Provider of any breach of these Terms and Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given.
17.2 No failure or delay on the part of any party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
18. Severance
If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected thereby.
19. Notices and Service
19.1 Any notice or other information required or authorised by these Terms and Conditions to be given by either party to the other shall be given by post, facsimile, transmission, electronic mail and comparable means of communication.
19.2 Any notice or information given by post in which is not returned to the sender as undelivered shall be deemed to have been given 28 days after the envelope was so posted and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, shall be sufficient evidence that the notice or information has been duly given.
19.3 Any notice or information sent by facsimile, transmission, electronic mail and comparable means of communication or comparable means of communication shall be deemed to have been duly given on the date of transmission.
20. Data Protection
The Provider shall comply with applicable Data Protection legislation from time to time in force in respect of any personal information relating to the Customer.
21. Applicable Law and Jurisdiction
These Terms and Conditions shall be governed and construed in accordance with the law of England and Wales and the parties shall submit to the exclusive jurisdiction of the English and Welsh courts.