1.1 These Terms and conditions (“Conditions”) govern the basis we, GHM Communications Limited whose registered office address is 8 King Edward St, Oxford OX1 4HL (“GHM”) will provide to you, the customer as specified on the front of this Master Agreement or as mentioned in any of the Order forms (“Customer”, “You”, “Your”) which consist of the Equipment, Network Services, Maintenance Services and Equipment Add On Order forms.
1.2 This Master Agreement comprises Conditions which are specific to Orders for the supply and provision of Equipment (Clause 3), Network Services (Clause 4) and Maintenances Services (Clause 5) and any Equipment Add on Order Forms, as well as General Conditions (Clause 6) which apply to the relationship between You and GHM and are applicable to all Orders. If in any way there is a disparity between the Conditions in Clause 3, 4 or 5, those General Conditions contained within Clause 6 will override any other. Reference to a “Condition” is to a term set out in these Conditions.
2.1 “Applicable Laws” means all laws, statute, common law, rules, regulations, codes of practice, guidelines or other requirements of regulatory authorities, as amended from time to time.
2.2 “Master Agreement” means these Conditions together with any Orders as entered into by GHM and You from time to time.
2.2 “Equipment” means telecommunications hardware and/or software purchased by You in an Order for Equipment or any Add on Order Form.
2.3 “Network Services” means (i) the provision of the telecommunication Network Services set out in an Order for Network Services and (ii) the provision of requisite hardware “Network Services Equipment” and (iii) any other services within the nature of the Network Services which You request and GHM agree to provide during the continuation of the Master Agreement.
2.4 Network Services Equipment means the equipment and/or machinery required to enable the Network Services to be provided by GHM to You or any other equipment and/or machinery You have requested GHM to provide in conjunction with the provision of Network Services, as set out in an Order for Network Services (including any items mentioned in any correspondence between You and GHM either prior to or following the date of an Order for Network Service) and (but without limitation) includes telecommunication cable(s) an/or telecommunication machinery, and any computer hardware or software, whether provided on loan by GHM to You during the duration of this Master Agreement or whether subject to any additional rental charge.
2.5 “Maintenance Services” means the provision by GHM of services to You as described in an Order for Maintenance Services
2.6 “Order” means an order placed by You under this Master Agreement for the supply by GHM of Equipment and/or Network Services and/or Maintenance Services which shall be governed by the Conditions to this Master Agreement which will include any Add on Order Form. Orders may be placed on GHM’s standard Order forms, email, on-line, fax or by letter subject always to the application of these Conditions. Except as set out in Condition 5.1 for amendments to Maintenance Service Orders, any additional requirements (“Additions”) to those originally specified on an Order and ordered by You during the term of an Order shall constitute a separate Order which shall be governed by the Conditions of this Master Agreement; for the avoidance of doubt therefore, these Additions shall be treated as stand-alone Orders in all respects including but not limited to any Minimum or Revised Term as specified in Conditions 4.4 and 4.5.
2.7 “Rental Order’ means an order for rental of Equipment as agreed by GHM from time to time.
2.8 “Maintenance Charges” means the charges to be paid by You to GHM for Maintenance Services.
2.9 “Documentation” means any specifications, technical manuals, user instructions and other literature relating to Maintained Equipment and supplied to You.
2.10 “Maintained Equipment” means all hardware and equipment to be supported by GHM (as set out in an Order for Maintenance Services).
2.11 “IP Right” means any copyright, patent, registered design, trademark or other intellectual property right (or applications therefore) of whatever nature subsisting anywhere in the world.
2.12 “Site” means the Customer’s premises as set out in an Order
2.13 “Small Business” means a business comprising of ten (10) employees or less or as otherwise determined by Ofcom from time to time.
2.14 “Lease” means a finance agreement entered into by and between the Customer and either a third party finance provider or GHM’s in-house finance facility in respect of the Order for the supply of the Equipment.
3 Sale and Lease of Equipment (applicable to any Order for Equipment):
3.1 The price for the Equipment and its installation shall be as set out in an Order for the supply of Equipment. A deposit may be required. The balance of all accounts is due for payment on completion of the installation of Equipment, unless you have been granted a thirty (30) day credit account. Interest charges for late payments may be levied in accordance with Condition 6.7
3.2 GHM shall use reasonable endeavours to supply Equipment on or before the mutually agreed delivery date and shall not be liable for any loss or damage direct or indirect occurring as a result of delay in delivery of the Equipment. You shall not be entitled to delay or refuse to accept delivery and/or installation under any circumstances.
3.3 GHM can only accept cancellation of an Order for the supply of Equipment by You if GHM receives written notification at least thirty (30) days prior to the mutually agreed delivery date or if no such delivery date has been agreed, within 14 days from the date of the relevant Order.
3.4 If the Order shall become impossible to perform in whole or in part for any reason whatsoever beyond GHM’s reasonable control GHM may rescind the Order immediately.
3.5 You shall ensure that the premises at which the Equipment is being installed are in a proper condition for such installation and shall make available to GHM free of charge all such light, heat, air, electric power and other necessaries as may be required for the installation and preparation of the Equipment.
3.6 Title of the Equipment shall only pass to You upon payment in full of the Order price and of all other sums whatever due from You under this Master Agreement save for in the event of a Leasing arrangement under which title to the Equipment shall not pass to You at any time. Until full payment is made, GHM will remain the owner of the Equipment and You will have possession of the Equipment at Your risk as GHM’s bailee and shall keep the Equipment in such a way as to enable it to be identified as GHM’s property.
3.7 GHM reserves the right to repossess any Equipment for which payment is overdue. For this purpose, You hereby grant GHM the right of access to its servants and agents to enter upon all or any of the Your premises with or without vehicles during normal business hours. The right shall continue to subsist notwithstanding the termination of this Master Agreement for any reason and is without prejudice to any of GHM’s accrued rights hereunder or otherwise.
3.8 GHM warrants that following installation the Equipment shall be in good working order and condition and in conformance with any agreed specification (as set out in the Order, if any). As further set out in 6.9 except for this warranty, all conditions or warranties which may be implied in relation to the Equipment’s description, satisfactory quality or fitness for purpose are expressly excluded to the maximum extent permitted by law.
3.9 During a period of seven (7) days following installation GHM will at its option replace, repair or make good any faults or defects that may arise in the Equipment free of charge to You; or if it is unable to do so it will refund the price of the Equipment to You.
3.10 Following expiry of the period referred to in Condition 3.9 You will be expected to enter into a Maintenance Agreement with GHM in respect of the Equipment, but if You fail to do so GHM’s sole liability will be to use reasonable endeavours, at Your expense, to pass onto You the benefit of any warranty offered by the manufacturer and/or supplier of the Equipment.
3.11 GHM’s obligations pursuant to Conditions 3.8 to 3.10 inclusive are subject to the following conditions and limitations and GHM shall accordingly be under no liability in respect of: –
3.11.1 defects in the Equipment arising as a result of any modification or repair carried out by You
3.11.2 use of the Equipment other than in accordance with GHM’s and/or manufacturer’s operating instructions or in any improper way: or
3.11.3 any defect caused by Your or any third party’s negligence or default.
3.11.4 the Equipment if the total price owing to GHM has not been paid by the Customer in full on or before the due date for payment.
3.13 The price for the Lease of Equipment or a purchase payment plan of the Equipment and its installation shall be as set out in the respective Order for the supply of Equipment. In the event that the Equipment is subject to a Lease, the terms of that Lease shall, in the event of conflict with these Conditions, prevail, provided always that should such Lease become void or unenforceable for whatever reason, these Conditions shall remain in full force and effect.
3.14 The supply of Equipment shall commence upon the delivery of the Equipment to You and shall continue for the term as specified in the Order for the supply of Equipment (“the Term”), unless earlier terminated as set out in Condition 3.15.
3.15 You shall forthwith upon delivery of the Equipment to Your premises (and until title passes to You pursuant to Condition 3.6 insure the Equipment for its full replacement value against all risks comprised in a contents policy including but without prejudice to the foregoing loss by fire, theft or malicious or accidental damage.
3.16 (i) In the event You wish to terminate the services supplied under the Order prior to the expiration of the Term and GHM (in its sole discretion) elects to accept such notice You shall provide thirty (30) days’ notice in writing (“Early Termination”). In the event of such Early Termination You shall be liable to pay to GHM 40% of the total Order price which would have been payable in respect of the relevant Equipment Order price being terminated or attempted to be terminated during each month outstanding during the remainder of the Term by way of assessed liquidated damages (“Termination Fee”). GHM is entitled to set-off any amount of deposit paid and held by GHM on Your behalf towards the Termination Fee. (ii) In the event of Early Termination of an Order for which the price has been stated or prior to Early Termination the parties have financed the supply of the Equipment through a Lease and where the Order price has been stated or prior to Early Termination, the parties have agreed the supply of Equipment through a Lease and where the Order price has been stated, GHM will promptly notify You in writing of the Order price against which the Termination Fee shall be payable in accordance with this Condition 3.16.
3.17 GHM may terminate the Equipment Order (in whole or in part) by providing You with thirty (30) days’ notice and, in this event, You shall not be liable for any Termination Fees.
3.18 On termination or expiry of the Order, the following shall apply (i) any sums properly due from one party to the other will become payable within thirty (30) days of termination (including Termination Fees if applicable); (ii) You shall cease using the Equipment and return all Equipment within seven (7) days in the same working condition (fair wear and tear commensurate with the age and application of the Equipment excepted) as at the start of the Term; and (iii) each party will, on request, promptly return to the other all confidential information and other property belonging to the other which is in its custody or control or will destroy such confidential information and certify such destruction to the other party.
4 Network Services
4.1 All Network Services are supplied utilising the telephone lines, cabling, equipment and machinery of such third party telecommunication service provider “Service Provider” as GHM may from time to time select.
4.2 From time to time, GHM may (in its discretion) allow You to enter into a Rental Order in respect of the use of the Network Services. If such Rental Order is agreed between You and GHM, these terms shall apply in full.
4.3 You will not use the Network Services:
4.3.1 For the transmission of any material which is defamatory, offensive or abusive or of an obscene or menacing character; or
4.3.2 in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to rights of copyright or confidentiality); or
4.3.3 in a way which is in any way unlawful or fraudulent, or has any unlawful or fraudulent effect; or
4.3.4 in any manner which shall contravene the requirements from time to time of any Service Provider.
In the event You use the Network Services in any manner as listed in Conditions 4.3.1 – 4.3.4 above, GHM shall have the right to suspend the Network Services immediately.
4.4 The term of an Order for Network Services commences from the later date of either (i) acceptance in writing by GHM, or (ii) the date upon which the Network Services are available for use by You and continues thereafter until terminated in accordance with provisions of Condition 4.8.
4.5 You agree to continue to use the Network Services both (i) for the minimum term as stated in the Order for Network Services (“Minimum Term”), and (ii) thereafter for the Revised Term (as set out in Condition 4.6). Where there is no Minimum Term stated in the Order for Network Services the Minimum Term shall mean the period of three (3) calendar months from the commencement date as determined in Condition 4.4.
4.6 Subject to Condition 4.7, after expiry of the Minimum Term (and at the expiry of the “Revised Term” as defined in this Condition) the term of an Order for Network Services under this Agreement automatically renews on a rolling basis. This automatic renewal reoccurs at the end of the Minimum Term and the end of the Revised Term (if applicable) until this Agreement is validly terminated by GHM or by You in accordance with Condition 4.8. This automatic renewal is on the following basis (i) if your original Minimum Term was for less than one year, this Agreement renews for a further period equal to the original Minimum Term (“The Renewal Term”) which shall be calculated from the date of expiry of the original Minimum Term or from the date of expiry of the Renewal Term (as the case may be), or (ii) if your original Minimum was for a period of one year or more, this Agreement renews for a period of one calendar year (“the Yearly Revised Term” together with the Renewal Term both meaning “the Revised Term”) which shall be calculated from the expiry of the original Minimum Term or from the date of expiry of the Yearly Revised Term (as the case may be).
4.7 If You qualify as a Small Business, the Revised Term will only be applicable to You upon Your express agreement to renew the Minimum Term otherwise the Order shall continue unless and until terminated by either party or on thirty (30) days’ prior written notice
4.8 Either GHM or You may terminate an Order for Network Services by giving to the other not less than one (1) calendar month’s notice in writing, such notice not to expire prior to the end of the Minimum Term or the Revised Term (“Termination Notice”). Any notice received which does not comply with the provisions of this Condition shall be ineffective. If You wish to terminate an Order for Network Services otherwise than in accordance with the provisions of this Condition, You may do so if you agree to pay to GHM the sum calculated in accordance with Condition 4.15.
4.9 GHM may terminate this Master Agreement immediately, if:
4.9.1 any licence required by You to run your telecommunications system and/ or connect it to the telecommunication system of the Service Provider is revoked, emended or otherwise ceases to be valid and is not immediately replaced by another valid licence; or
4.9.2GHM, for reasons beyond its control, is unable to continue to provide the Service if the period referred to in Condition 6.10 exceeds one (1) month.
4.10 Upon termination of this Master Agreement, (however this may arise) You will allow GHM (or those authorised by GHM) to enter the premises where Network Services Equipment is installed and retake possession of the Network Services Equipment. On entering such premises GHM shall be entitled to undertake all work necessary to remove the Network Services Equipment and will not be liable for any damage caused.
4.11 If this Master Agreement is terminated by GHM under any of the grounds as set out above or if You cease the Network Services at any time during the Minimum Term (which term for the avoidance of doubt where used in this Condition 4.15 includes the Revised Term or You request termination outside the Termination Notice (“Earlier Termination Notice”), You will (without prejudice to any claim for damages by GHM for the breach of this Master Agreement) pay to GHM:
4.11.1 all sums which have fallen due to GHM up to and including the date of the Early Termination Notice; and
4.11.2 all rental charges which would have been payable by You to GHM from the date of the Early Termination Notice to the date of expiry of the Minimum Term, or the Revised Term, as applicable; and
4.11.3 all standing charges applicable to the provision of the Network Services (at the rate payable immediately prior to the Early Termination Notice) which would have been payable by You to GHM from the date of the Early Termination Notice to the date of expiry of the Minimum Term or the Revised Term, as applicable; and
4.11.4 all costs and expenses incurred by GHM collecting or attempting to collect from You Network Services Equipment, and
4.11.5 if this Master Agreement includes (as indicated in the Order for Network Services or as may be subsequently agreed in writing between you and GHM) as an element of the Network Services a commitment to use GHM for all call routing, and You cease call routing before the expiry of the Minimum Term (or the expiry of the Revised Term), GHM will levy a charge by way of liquidated damages to be calculated as follows: the average monthly call spend by You during the previous six (6) months of the Network Services Agreement up to and including the last complete month use of call routing prior to the month within which the date of the Early Termination Notice occurs/You ceasing to use call routing X 40% X The number of billing months remaining until expiry of the Minimum Term or expiry of the Revised Term (as applicable).
4.12 Charges for Network Services will be as specified on an Order for Network Services or (where there is no written statement of charging) in accordance with GHM’s rates applicable at the same time as published on its website at www. ghmcommunications.com. GHM shall be entitled to vary the provisions of the Order (including for the avoidance of doubt, the charges). GHM will provide to the Customer thirty (30) days’ notice in writing of any such variation or, where the variation arises due to changes imposed by third party suppliers or a regulatory body, as much notice as is reasonably practicable subject to your right of termination in the circumstances referred to in Condition 4.8. and Condition 4.9, as applicable.
4.13 You are responsible for all charges in respect of the supply of the Network Services to the telephone numbers nominated by You for use. All persons using the Network Services are deemed to be authorised by You and You must pay all charges arising from use of the Network Services whether or not arising from misuse or unauthorised use of your telephone system.
4.14 Payment for Network Services: charges will be calculated by sole reference to the data and records maintained error (notified in accordance with Condition 4.15).
4.15 All charges for Network Services payable by You will be shown on a monthly statement issued by GHM (“Account”). Any allegation as to manifest error in an Account must be notified in writing, sent by recorded delivery, by You to GHM within thirty (30) days of the date of the applicable Account. GHM will investigate with all good faith any allegation of manifest error in an Account and shall inform You of the outcome of such investigation. Any refund of any charges wrongly debited to You shall be made only where GHM accepts manifest error, and will be paid by way of credit to your next following Account.
4.16 Where Network Services is required You will pay to GHM any installation charge shown in the Order for Network Services or any installation charge which may be levied by a Service Provider, which is a one-off charge payable by You on or before the installation date.
4.17 You agree to pay GHM the total sum shown in any and all Account(s) within fourteen (14) days of the date of such Account. In the case of delayed payment in addition to its remedies specified in Condition 6.7 GHM are entitled to require payment from You of a deposit against you liability under this Master Agreement as a condition of the continuation of the Network Services.
4.18 You will make payment in respect of Accounts by direct debit to such bank account nominated for such purpose as GHM shall direct, on written request by GHM.
4.19 If the Network Services include any free call allowance, any “unused” minutes will not be carried forward to any subsequent Account unless otherwise specified in writing between GHM and You and GHM have no liability to compensate You in respect of any free call allowance not used by you.
4.20 GHM may suspend forthwith the provision of the Network Services until further notice without liability to You on notifying you either orally, (confirming the same in writing) or in writing in the event that;
4.20.1 you are in breach of any Condition of this Master Agreement or otherwise You have failed to pay when due any sum payable to GHM in respect of any other contract or agreement between GHM or any associated company of GHM and You; or
4.20.2 you prevent or delay prearranged maintenance from being carried out; or
4.20.3 you are suspected in GHM’s reasonable opinion, of involvement with fraud or attempted fraud in connection with the user of the Network Services; or
4.20.4 as a consequence of Your use of the Network Services any Service Provider shall notify GHM that Your use of the Network Services is in breach of the term of business imposed by such Service Provider, or otherwise they refuse to transmit telecommunication Network Services originating from You.
4.21 Without limitation to the foregoing, GHM may suspend the Network Services if required to do so by any competent authority, if it needs to carry out any maintenance operations, if GHM received notification from the Service Provider of their requirement to suspend the Network Services or if suspension is required for any other reason beyond GHM’s reasonable control.
4.22 You shall remain liable for all charges levied in accordance with these Conditions during any period of suspension arising from the circumstances described in Conditions 4.20 and 4.21.
4.23 GHM does not warrant the Network Services will be available at any particular time or continuously.
4.24 You will immediately notify GHM of any fault in the Network Services including Equipment. GHM shall use its reasonable endeavours, during GHM’s normal working hours, to remedy such a fault and/or reinstate the Network Services. This may (where this will retain provision of the Network Services) include provision by GHM of an appropriate pre-fix dial code to enter prior to the making of a telephone call and You agree to enter such code until such time as GHM may inform You the Network Services are available for use without the need for such code to be entered.
4.25 GHM will be entitled to enter Your premises at all reasonable times to inspect, carry out (where necessary) servicing or maintenance of Network Services Equipment.
4.26 GHM shall be responsible for the cost of all preventative maintenance, and/ or servicing of the Network Services Equipment required in the reasonable opinion or GHM. You will be responsible for the cost (at GHM’s usual charging rates from time to time) for all maintenance, loss and damage arising from negligence, default or misuse of Network Services Equipment and/or the Network Services or use for a purpose for which the same was not supplied or otherwise as a consequence of breach of the Conditions of this Master Agreement by You; or
4.26.1 any fault, incompatibility or malfunction arising from or associated with use of the Network Services Equipment and/or the Network Services with any other telecommunications system or other computer or communication equipment not supplied or approved by GHM; or
4.26.2 any other cause beyond the reasonable control of GHM.
4.27 GHM shall have the right to charge You at GHM’s usual charging rate for any and all costs incurred where GHM is requested to carry out any maintenance or repair which in GHM’s reasonable opinion is unnecessary or is performed outside GHM’s usual working hours.
4.28 Where there is a temporary cessation of the Network Services or otherwise a fault which prevents the full use of the Network Services arising as a consequence of a cessation or fault on the part of the Service Provider, GHM shall use reasonable endeavours to claim on Your behalf (upon receiving notification of the fault from You and all the information as GHM may request from time to time in connection with the fault) compensation from the Service Provider. GHM’s liability under this condition shall at all times be limited to the amount of compensation as shall be payable from time to time by the Service Provider in the circumstances as shall have arisen at such time less GHM’s reasonable costs of recovery. GHM shall not incur any liability in respect of charges incurred by You in respect of any alternative telephone facilities implemented as a consequence of temporary interruption in the Network Services nor any liability as a consequence of matters beyond the reasonable control of GHM.
4.29 GHM shall not be liable to You for any third party interference (either internal at your premises or external including but not limited to “hackers”) with the Equipment or the Network Services nor as consequence of abuse or misuse thereof.
4.30 GHM shall not be liable for the acts or omissions of other providers of telecommunication services unless GHM has been subcontracting such telecommunication services to the third party provider in respect of the performance of GHM’s obligations under this Master Agreement.
4.31 Where an extension billing option has been requested, GHM will use reasonable endeavours to provide the extension information. GHM shall not be liable to You if the extension information is not available for whatever reason.
4.32 Subject to 4.33, YOU ACKNOWLEDGE THAT YOU ARE LIABLE FOR ALL DATA ROAMING CHARGES AND DATA USAGE CHARGES WHETHER AUTHORISED BY YOU OR OTHERWISE. You agree that if there is any excess use of data roaming or data usage which exceeds any limit on download or any applicable fair data use policy, that You shall be liable for all such excess charges, which shall be charged at GHM’s standard rates available at such time.
4.33 You acknowledge that in order for GHM to comply with its obligations under the Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13th June 2012 on Roaming on Public Mobile Communications Networks within the Union (“EU Regulations”) whereby GHM has an obligation to notify You once You reach the allowable limits of data roaming as set out in the EU Regulations (“Notice”) and that You agree that You do not require such Notice in order to continue receiving data services. You and GHM may also agree a suitable financial limit to such data on the Order form. If a financial limit has been set, GHM will only send a Notice to the user if the user exceeds this amount and the user shall have the right to opt-out of such Notice and continue to receive the services.
5 Maintenance Services
5.1 Subject to Condition 5.2 the term of an Order for Maintenance Services commences from the later date of either (i) acceptance in writing by GHM, or the date upon which the Maintenance Services are available for use by You and continues for an initial period of five years (“Initial Period”) and thereafter for successive twelve (12) month periods (“Renewal Periods”) subject to termination by either party giving not less than three (3) months’ prior written notice to the other prior to the end of the given year period or any subsequent twelve (12) month period. Should You require additional Maintained Equipment to that specified on an Order for Maintenance Services during the term of an Order for Maintenance Services, this will constitute an amendment to the existing Order and You will be charged for the additional items on a pro-rata basis for the remaining term of the Order for Maintenance Services.
5.2 If You qualify as a Small Business, the Renewal Periods will only be applicable to You upon Your express agreement to renew the Initial Period. If You and GHM agree to renew the Initial Period, all provisions relating to the Renewal Period shall apply to You
5.3 For the avoidance of doubt GHM may invoice You for Maintenance Charges incurred by You during any notice period.
5.4 In consideration of the payment by You of Maintenance Charges and any other sums due from You, GHM shall supply the Maintenance Services as described in an Order for Maintenance Services and in consideration of the supply of those Maintenance Services, You shall pay the Maintenance Charges and any other sums due from You subject to the terms set out in 5.12.
5.5 To enable GHM to effectively carry out its obligations under this Master Agreement You shall:
5.5.1 Make available free of charge such computer and communications facilities, office facilities and services and suitable office space as reasonably requested;
5.5.2 Ensure that Your employees or other independent contractors co-operate reasonably with GHM and its employees;
5.5.3 Immediately notify GHM of any fault affecting Maintained Equipment and to promptly furnish GHM with such information and documents as requested;
5.5.4 Ensure that Agents or independent contractors subject to such employees, agents or independent contractors comply with any Customer health and safety policy notified in writing by You;
5.5.5 Ensure that any IP Rights which GHM is required to use or modify in order to supply Maintenance Services is/are either proprietary to You or properly licenced to You and that GHM is properly authorised to use or modify the IP rights;
5.5.6 Ensure that adequate electrical power is supplied to the Maintained Equipment;
5.5.7 Store and maintain Maintained Equipment in accordance with Documentation and maintain appropriate environmental conditions at the Site;
5.5.8 Keep the external surfaces of the Maintained Equipment clean and in good condition;
5.5.9 Operate the Maintained Equipment strictly in accordance with Documentation and ensure that only competent and trained persons operate the Maintained Equipment;
5.5.10 Not make any addition, modification or adjustment to the Maintained Equipment without the prior written consent of GHM.
5.6 You warrant to GHM that the Maintained Equipment is in good condition and fully operational at the date of the commencement of Maintenance Services.
5.7 Maintenance Services does not include any maintenance made necessary by:
5.7.1 fault or defect occurring at Your Site;
5.7.2 use of Maintained Equipment outside its proper use;
5.7.3 accident, fault, act or omission of any person other than GHM;
5.7.4 failure of electrical power, air conditioning, humidity or other environmental controls;
5.7.5 electrical work external to any Maintained Equipment;
5.7.6 damage by vandalism, fire, water or adverse weather conditions;
5.7.7 movement or relocation of the Maintained Equipment not performed by or on behalf of GHM;
5.7.8 furnishing of the Maintained Equipment with accessories or attachments, painting or finishing the Maintained Equipment or removing accessories or attachments;
5.7.9 breach of Your obligations in this Master Agreement;
5.7.10 equipment, accessories, attachments, machines, systems or other devices not included in an Order for Maintenance Services;
5.7.11 rectification of lost or corrupted data arising for any reason (other than GHM’s own negligence);
5.7.12 changes, alterations, additions, modifications or variations to Your Site; and
5.7.13 diagnosis and/or rectification of problems not associated with Maintained Equipment.
5.8 GHM may agree to supply additional services which are made necessary by any of the matters set out in Condition 5.7 and, in such event You shall be charged for such services in accordance with Condition 5.11.
5.9 GHM reserves the right to withdraw Maintenance Services if the Maintained Equipment is moved, repaired or modified other than by GHM unless You have obtained GHM’s prior written consent. Maintenance Services on such Maintained Equipment shall resume as soon as maintenance acceptability tests have been carried out at the expense of the Customer and satisfied at GHM’s discretion.
5.10 Additional services supplied by GHM at Your request shall be charged in accordance with GHM’s standard rates calculated upon a time and materials basis.
5.11 Payment of annual Maintenance Charges due from You to GHM shall be made annually in advance from the Initial Period and thereafter upon each anniversary of the Initial Period (subject to Condition 5.2) except where a separate direct debit mandate is agreed with You for monthly or quarterly payments as the case may be. Any additional sums due shall be paid within thirty (30) days of the receipt of an invoice from GHM.
5.12 With effect from the beginning of each anniversary from the Initial Period for Maintenance Services, GHM may vary Maintenance Charges in effect during the previous year. If any annual increase in Maintenance Charges made pursuant to this Condition 5.12 exceeds 3% above the rate of inflation as indicated in the Retail Prices Index published by the Government from time to time then You may terminate this Master Agreement upon thirty (30) days’ notice
General Conditions applicable to all Orders under this Master Agreement
6.1 This Master Agreement represents the entire Master Agreement and understanding of the parties and supersedes all prior agreements, negotiations, representations, proposals and understandings, whether written or oral. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
6.2 GHM may vary the terms of these Conditions at any time and without Your consent to the fullest extent permitted at law. You may only alter and amend these Conditions with the consent of GHM, such alterations and amendments shall be in writing and signed by both parties.
6.3 No waiver of any breach of the other party’s obligations hereunder shall represent a waiver of the waiving party’s rights hereunder or of any subsequent breach.
6.4 All prices quoted are exclusive of value added tax.
6.5 The time for payment of any monies due under this Master Agreement shall be of the essence of this Master Agreement.
6.6 Time for performance of any obligation by GHM shall not be of the essence of this Master Agreement.
6.7 GHM reserves the right, without prejudice to any other right GHM may have in respect of late payment to charge You interest on any monies due under this Master Agreement (both before and after any judgement). The interest payment will be calculated on a daily basis from the date of invoice until payment in full is made; such interest to be compounded at a rate of 4% above Lloyds TSB Bank Plc base rate on the first day of each calendar month. Any reasonable debt collection costs incurred by GHM shall also be payable by You.
6.8 Where an extension billing option has been requested, GHM will use reasonable endeavours to provide the extension information. GHM shall not be liable to You, if the extension information is not available for whatever reason.
6.9 Except as expressly provided in this Master Agreement no warranty, condition, undertaking or term, expressed or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of any goods or services (including without limitation Maintenance Services) provided hereunder will be assumed by GHM and except as expressly provided in this Agreement all such warranties, conditions, undertaking and terms are hereby excluded. GHM warrants that it shall perform its obligations under this Master Agreement with reasonable skill and care.
6.10 GHM shall not be liable for failure to fulfil this Master Agreement or any Condition of it if fulfilment has been delayed, hindered or prevented by any circumstances beyond its reasonable control.
6.11 GHM may terminate this Master Agreement by written notice if any of the following events occur:
6.11.1 If You commit any breach of the Conditions of this Master Agreement and fail to remedy such breach within thirty (30) days after receiving written notice requiring remedy;
6.11.2 If You become bankrupt or compound or make any arrangement with or for the benefit of Your creditors or (being a company) enter into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bone fide reconstruction or amalgamation without insolvency) or have a receiver or manager appointed of the whole or substantially the whole of Your undertakings.
6.11.3 An event of force majeure as referred to in Condition 6.9 continues for a period of more than three (3) months.
6.12 Without prejudice to any right of termination GHM shall be entitled by immediate notice to suspend performance of this Master Agreement upon the occurrence of circumstances specified in Condition 6.11, and this Master Agreement will in any event be deemed suspended in the event of force majeure.
6.13 Termination or suspension of this Master Agreement will be without prejudice to any accrued rights or obligations of either party.
6.14 Each party agrees that the limitations of liability contained in this Condition 6.14 have been discussed, negotiated and agreed between the parties in the context of the other provisions of this Master Agreement and satisfy the requirement of reasonableness within the meaning of subsection 2(2) and Section 11 of the Unfair Contract Terms Act 1977.
6.15The liability of GHM in respect of breaches of this Master Agreement or of any other duty to Customer or for negligence in connection with the subject matter of this Master Agreement for all or any such matters arising before, during or after the date of this Master Agreement shall be limited to the following:
6.15.1 for breach in respect of an Order for the supply of Equipment – the price of the Equipment stated on the Order,
6.15.2 for breach in respect of an Order for Maintenance Services – Maintenance Charges paid to GHM in the 12 month period in which the claim arises,
6.15.3 for breach in respect of an Order for Network Services – one month’s charges for Network Services (in the month prior to that in which the breach occurred).
6.16 Subject always to Condition 6.11.3 in no event shall either party be liable to the other for any of the following however and whenever arising:
6.16.1 loss of profits, business, revenue, data, goodwill or anticipated savings; and/or
6.16.2 indirect or consequential loss or damage.
6.17 Neither party excludes or limits liability to the other party for death or personal injury or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
6.18 Customer undertakes fully and effectively to indemnify and keep indemnified GHM at all times against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by GHM directly or indirectly in respect of:
6.18.1 any breach by Customer of any of the provisions of this Master Agreement or of any law, code or regulation relating to this Master Agreement; and
6.18.2 work done in accordance with Customer’s instructions involving infringement of any IP Rights of a third party.
6.19 None of the provisions of this Master Agreement are intended to or will operate to confer any benefit pursuant to the Contracts (Rights of Third Parties) Act 1999 on a person who is not named as a party to this Master Agreement
6.20 This Master Agreement may not be assigned in whole or in part by You without prior written consent of GHM, such consent not to be unreasonably withheld. GHM shall have the right without notice to assign, sub-contract or otherwise deal with all or any of its rights and obligations under this Master Agreement.
6.21 Any notice given by either party pursuant to this Master Agreement shall be made in writing and either delivered personally or sent by first class recorded delivery to the party whom the notice is addressed at its address as set out in this Master Agreement or such other address as one party may specify by notice in writing to the other; in the absence of evidence of earlier receipt notice shall be deemed to have been duly given. Any notice shall be deemed to have been received:
6.21.1 if delivered personally, at the time the notice is left at the proper address
6.21.2 if sent by first class recorded delivery, at the time recorded by the delivery agent.
6.22 You shall pay and reimburse all legal costs and other costs and expenses which GHM may incur in connection with enforcing its rights under this Master Agreement, and/or in recovering possession of the Equipment including specifically (without prejudice to the generality of the foregoing) cost and expenses of repossessing, storing and disposing of the Equipment and of engaging an authorised debt collection agency and such charges as GHM shall deem reasonable to cover any costs and expenses of administration incurred by it.
6.23 Subject to Condition 6.24 You may terminate an Order for any the services under this Agreement upon ninety days written notice if GHM:
6.23.1 Introduces revised terms and conditions and these terms and conditions adversely affect you in a material way in which event the Conditions then existing will continue to apply during the notice period; and/or
6.23.2 increases the prices and/or tariffs set out in the Charges in respect of that service pursuant to Condition 6.21 of this Agreement and that increase is to the material disadvantage of the Customer (for the avoidance of doubt an increase in prices and/or tariffs of 10% or less in any 12 month period shall not constitute a material disadvantage of the Customer).
6.24 The right to terminate a service in Condition 6.23.2 above shall not apply where the increases in prices, tariffs, terms or otherwise made by third party suppliers or a regulatory body.
6.25 Termination of a service in accordance with Condition 6.23.2 of the Agreement will not affect the Customers requirement to pay the Charges relating to that service incurred prior to the date of termination, but, in this event, the Customer shall not be liable for any Termination Fees.
6.26 Where you wish to terminate, amend, migrate or cancel any services from time to time, GHM may at their discretion charge you an administration fee (currently £30) for this.
6.27 Charges for the services will be as specified on an Order for such services or (where there is no written statement of charging) in accordance with GHM’s rates applicable at the time as published on its website at www.ghmcommunications. com. 6.28 GHM shall be entitled to vary the provisions of this Master Agreement (including for the avoidance of doubt, the charges). GHM will provide the Customer thirty (30) days’ notice in writing of such variation or, where the variation arises due to changes imposed by third party suppliers or a regulatory body, as much notice as is reasonably practicable subject to your right of termination in the circumstances referred to in Condition 6.25 and Condition 6.26, as applicable.
6.29 Neither party shall divulge confidential information to any third party except such of its employees, contractors, suppliers and agents as may need to know the same for the purposes of the implementation and/or performance of this Master Agreement and any Order and in each case who agree to be bound by the provisions of this Condition 6.29.
6.30 Nothing in this Master Agreement shall create, or be deemed to create a partnership or joint venture between the parties and nothing in the Master Agreement shall be construed to appoint one party as the distributor, dealer or agent of the other.
6.31 The Master Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party to this Master Agreement irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
6.32 If any provision or part-provision of this Agreement 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 Master Agreement.
Compliance with Laws and Policies
7.1 In performing their obligations under this agreement, GHM and the Customer shall comply with:
7.1.1 the Applicable Laws; and
7.1.2 GHM’s policies and procedures, provided that GHM shall give the Customer not less than thirty (30) days’ notice of any change to such policies and procedures.
7.2 Changes to this Master Agreement required as a result of changes to the Applicable Laws.
Data Protection and Data Processing
8.1 Each party shall comply with Schedule One (Data Protection).
9.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs.
9.2 Each party may disclose the other party’s confidential information to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
Limitation of Liability
10.1 Nothing in this agreement shall limit or exclude GHM’s liability for:
10.1.1 death or personal injury caused by its negligence;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to Condition 7.1, GHM 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 this agreement for:
10.2.1 loss of profits;
10.2.2 loss of sales or business;
10.2.3 loss of agreements or contracts;
10.2.4 loss of anticipated savings;
10.2.5 loss of or damage to goodwill;
10.2.6 loss of use or corruption of software, data or information; and
10.2.7 any indirect or consequential loss.
10.3 GHM’s total liability to the Customer in respect of all other losses arising under or in connection with the Order, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the goods and services.
10.4 The terms implied by sections 3, 4 and 5 of The Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Master Agreement.