Terms & Conditions
Internet Connectivity
The below agreement is made between Kelia Limited (Company reg number 11919939) of Minerva Mill Innovation Centre, Station Road, Alcester, Warwickshire B49 5ET and the customer named on the contract. The customer accepts that these terms and conditions supersede any previous version signed or otherwise.
1. SERVICE ORDERS
1.1. All orders are accepted subject to the availability of Products, the installation survey necessary to ascertain installation requirements to the property, the ability of the company to provide Services to the location defined by the Customer on the Service Order and to these Terms and Conditions.
1.2. The Company shall supply, and the Customer shall purchase the Products and Services described on the Service Order in accordance with these Terms and Conditions, which shall govern the contract to the exclusion of any other terms on which the Customer seeks to rely. No variation to these terms and Conditions by the Customer shall be binding unless expressly agreed in writing by the authorised representatives of the Company.
1.3. The Company’s employees or agents are not authorised to make any representations concerning the Products/Services unless confirmed by the Company in writing. In entering the contract, the Customer acknowledges that it does not rely on any such representations, which are not so confirmed, but nothing in these Terms and Conditions affects the liability of either party for fraudulent misrepresentation.
1.4. Any typographical, clerical or other error or omission in any sales literature, quotation, Order, price list, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
1.5. The Company reserves the right to vary the charges contained in the Service Order prior to acceptance of the Service Order if additional costs are identified through survey, design or scoping of the Customer’s requirements. The Customer has the right to cancel the Service Order within 5 working days of being advised of any such change. The Company will deem acceptance of these charges and accept the Service Order as amended if the Customer does not cancel in writing with this period. The provisions of this condition shall not affect the rights of a Customer dealing as a consumer (within the meaning of the Consumer Credit Act 1977).
1.6. Customer shall be bound by all Service Orders signed or acknowledged on the Customer’s behalf and the Company will only be bound to supply the Products and services on the Company’s acceptance of the Service Order and following receipt of payment of any charges detailed therein.
1.7. The Company reserves the right to charge for any omission or additional cost arising from the provision of inaccurate or insufficient information by the Customer or in cases where the Customer requests changes to the planned solution as delivered by the Company and to revise prices to take into account increases in any costs of providing the Products which occurs between the date of quotation and delivery.
1.8. The Company reserves the right to amend the charges on the Service Order in the event of unforeseen circumstances at the point of installation. During these unforeseen circumstances the Company reserve the right to suspend the Service Order until further survey, design, and or solution is identified and agreed by both parties. The Customer has the right to instruct the Company to suspend installation to allow for consideration of these amendments. If the Customer does not accept the amendments formally within 10 days the Company reserve the right to cancel the Service Order.
2. COMPANY OBLIGATIONS
2.1. The Company shall supply the Products and Services as detailed in the Service Order in accordance with these Terms and Conditions and any Product Terms.
2.2. The Company will configure and install items to the specification provided to the Customer in accordance with the rates detailed on the Service Order.
2.3. Installation shall be to the point identified by the Company as most accessible. In the event the Customer changes the specification for such installation/configuration the Company reserves the right to require payment for implementing such changes at rates notified to the Customer from time to time.
2.4. The Company will use reasonable care and skill in performing such installation/configuration and will perform such Services within a reasonable time. Times quoted by the Company are estimates only and any delay in meeting delivery dates shall not give rise to a right to cancel the order or to claim damages.
2.5. Delivery will be to the location and access point specified on the Service Order. Any request by the Customer for the Company to delay or split delivery may result in additional costs incurred by the Company and such costs shall be notified to, invoiced and be payable by the Customer. The Customer may only suspend its delivery if this is agreed in writing by the Company and if any costs incurred by the Company as a result are paid by the Customer at this time. The Company may be reliant on third party suppliers and in some cases require planning consents, wayleaves or rights of way for such installations. Delays caused through these sources will not allow the Customer to cancel or amend the Service Order unless agreed in writing by the Company. The Company will not be liable for any losses of any kind incurred by the Customer through such delays.
2.6. The Company shall be responsible for provision of the Service up to and including the Service Demarcation Point. The Company shall inform the Customer of this obligation and the relevant location of the Service Demarcation Point at the time of commissioning and acceptance of the Service by the Customer.
2.7. In supplying the Services the Company will use its reasonable skill and care to maintain provision but the Company is not able to guarantee fault-free performance. Due to factors outside the Company’s control such as access to 3rd party content and services and shared use of networks, internet access availability and speed may vary from time to time. In addition the speed and limitations of your equipment may affect the transmission speed that we can provide you. We cannot provide a fully guaranteed end to end Service to be available at all times.
2.8. The Company will endeavour to carry out necessary maintenance and support of its own systems work outside of UK business hours (“Planned Outages”). The Company shall also endeavour to notify the Customer of any Planned Outages at least five days prior to such work being carried out, although the Customer accepts that due to the nature of the Services, this may not always be possible. The Company shall not be liable to the Customer for any temporary unavailability of Services due to planned maintenance, emergency maintenance or loss of use outside the reasonable control of the Company.
3. CUSTOMER OBLIGATIONS
3.1. The Customer is responsible for the installation, configuration, performance, maintenance and use of the Service beyond the Service Demarcation Point.
3.2. The Customer is responsible for the provision, maintenance and upkeep of an environment suitable for the provision of the Services, as defined in the Service Order Form or any Product Terms. For the avoidance of doubt, this includes adequate and consistent electrical power as required by the Products or Services.
3.3. The Customer agrees to abide by the Company’s Acceptable Use Policy.
3.4. The Customer agrees to only use the Company network for lawful purposes. Any material transmitted through the Company network, or use of any part of it, in violation of any UK law or regulation, which is otherwise defamatory, discriminatory, or derogatory is prohibited.
3.5. The Customer hereby consents to our intermittent monitoring of the Services (whether authorised by statute or other legislation or otherwise) to ensure lawful use of the Services.
3.6. When the Customer is issued with a password to access the Products and Services, they shall take all reasonable steps to keep such password private and confidential and ensure that it does not become known to other persons. If the password becomes known to any other person, the Customer will immediately inform the Company and the password will immediately be changed. The Company may change the Customer’s password from time to time at their discretion without prior notice.
3.7. The Customer agrees that they are liable for any charges on the Customer’s account regardless of whether the Customer or anybody else (with or without the Customer’s permission) incurs those charges (unless the charges result from fraud by an unrelated third party which is not residing at the Property and over which the Customer could have had no control over). For the avoidance of doubt, the Company considers anyone who has access to the Customer’s premises or has been given access to the Services (whether deliberately or by default of weaknesses in the Customer’s security) to be within the Customer’s control and the Customer would be liable for those charges. If the Customer becomes aware of any fraud by someone else, they must tell the Company as quickly as they can. The Customer shall be deemed to have given permission to use the Customer’s account and add charges on to the Customer’s account to any other individual or party to whom they have divulged any PINs or passwords relevant to the Service.
3.8. The Customer may use the Company’s network to access other Internet connected networks world-wide and agrees to conform to any published and future protocols and standards. In the event that communications by the Customer do not conform to these standards, or if the Customer makes profligate use of the Company network to the detriment of the Company or any other of the Company’s Customers, the Company reserves the right to restrict passage of the Customer’s communications until they give a suitable undertaking as to use and adhere to such undertaking.
3.9. The Company is not responsible or liable for any third party charges from other organisations (such as content providers) which may be incurred by the Customer while using the Services. The Customer shall indemnify the Company for any claims or charges made against Kelia in respect of any such costs incurred.
3.10. Any Internet address allocated by the Company to the Customer will at all times belong to the Company and the Customer may not sell or agree to transfer the address to any person. The Customer will have a non-transferable licence to use such Internet address whilst the Customer receives internet access from the Company. In the event the Service Order is terminated, for whatever reason, the Customer’s licence to use the Internet address shall automatically terminate and thereafter the Customer shall not use the Internet address.
3.11. The Customer undertakes not to assign or in any other way transfer the Services, without the Company’s prior consent.
3.12. The Customer accepts that the Company may vary the technical specifications of Products and Services from time to time for operational or regulatory reasons and such reasonable variance shall not invalidate these Terms and Conditions.
4. USING THE SERVICES
4.1. Due to the nature of the Internet, the Company cannot guarantee specific levels of performance, speed or access for the use of the Services and for internet access.
4.2. The Company reserves the right to remove by immediate notice material placed on its servers by the Customer or other users which violates these Terms and Conditions or is otherwise harmful to the Company’s interests or the interests of other users of the Services.
4.3. The Company reserves the right to monitor and control data volume and/or types of traffic transmitted via the Services. In the event that the Customer misuses the Service or their use does not comply with the Company’s ‘Acceptable Use Policy’, available on the Company’s website and amended from time to time, the Company reserves the right to reduce, suspend or terminate the Customer’s access and use of the Services. During any such time of reduction or suspension, the Customer will remain liable for the payment of the original level of charges. It is the Customer’s responsibility to review the Acceptable Use Policy from time to time, to ascertain if changes have been made to it.
4.4. The Company cannot guarantee that Headline Transmission Speeds can be obtained at any time, however the Company will endeavour to inform the Customer of any issues, and attempt to resolve them, as soon as is reasonably possible.
4.5. The Customer is responsible for maintaining in good order any Products under its control. Kelia recommend that all Products of the Company be insured for their full replacement value by the Customer. The Customer must make good any damage to Products (including damage or cuts to Kelia’s network or fibre within the Customer’s property) within 21 days of the damage being incurred, except where such damage is caused by the negligence of Kelia or its agents.
4.6. The Customer agrees to take responsibility for any and all liabilities, claims and losses which are in any way connected with misusing the Services supplied under these Terms and Conditions, and to fully indemnify the Company if the Company suffer any costs or losses of this kind. For the avoidance of doubt, such losses include all direct, indirect (whether reasonably foreseeable or not) or consequential losses that can be evidenced by the Company.
4.7. The Company may email service announcements to the Customer as part of the Services.
CUSTOMER EQUIPMENT
5.1. The Company will not be liable in any way for any loss or damage which is caused to the Customer’s own equipment arising as a result of its use with the Services.
5.2. The following equipment supplied as part of the installation will be deemed to be owned by Kelia Limited.
5.2.1. All cabling within the Customer’s premises up to and beyond the Service Demarcation Point
5.2.2. The socket, equipment or device providing the Service Demarcation Point (as defined on the Service Order and shown to the Customer upon acceptance of the Service)
5.2.3. Any router or other IP switching and management device connected to the Service Demarcation Point
5.3. The Company will provide, subject to clause 9.4 a warranty on this equipment supply for 12 months from the date of installation in respect of the equipment is free of manufacturing defect in workmanship and associated labour. The Company reserves the right to repair or replace faulty equipment at its entire discretion. Where the Company finds that any warranty claim arises from the misuse of the equipment, the Company shall be entitled to charge the Customer for any costs of repair or replacement.
5.4. In the event that any of the equipment supplied as part of the installation requires replacement after the 12 month warranty period, then the Customer will be invoiced for replacement equipment and should engineering presence be required to replace the equipment at the Customer premises the Company reserves the right to levy a service call out charge which shall be advised to the Customer priori to attendance.
5.5. An additional extended warranty may be offered by Kelia (directly or through a selected third party) for an additional monthly charge. This will be subject to any specific terms and conditions that may be offered at the end.
5.6. Title to Equipment shall pass to Customer as soon as Kelia has received payment for it in full. Where Equipment is provided free of charge title will remain with Kelia during the contract and after the contract term has expired. In this instance, all equipment must be returned to Kelia within one calendar month of the contract coming to an end. If equipment is not returned within one calendar month then Kelia reserves the right to charge full price.
6. TERM AND TERMINATION
6.1. These Terms and Conditions shall be deemed to have taken effect from signature of Order Form and acceptance by the Company and shall continue for the Initial Term as defined on the Order Form. Thereafter, the Terms and Conditions shall continue in their entirety until terminated by either party giving not less than 3 months’ notice in writing or until terminated in accordance with this clause or unless stated in the Product Terms.
6.1.1. Either party may terminate a Service Order forthwith on giving notice in writing to the other party if the other party commits a material breach of these Terms and Conditions and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach (such request to contain a warning of other party’s intention to terminate)
6.1.2. Any termination of the Service Order (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination, which includes without limitation, the Customer’s obligation to make any payment due to the Company for Products and Services supplied (including for the avoidance of doubt any charges incurred in respect of work in progress) prior to the date of termination. For the avoidance of doubt, charges shall become due and payable during any period of notice of termination and in the event that termination occurs during any Initial Period, the Customer shall pay any and all charges due until the expiry of any such Initial Period.
6.1.3. Either party may terminate this agreement forthwith if an order is made or an effective resolution passed for the liquidation, winding up, dissolution or bankruptcy (other than by way of members voluntary liquidation or pursuant to any amalgamation or reconstruction on mutually agreed terms) of either party or a receiver, administrative receiver, administrator or trustee in bankruptcy is appointed over all or any of the revenues or assets of either party.
6.1.4. Where the service is part of a solution or multiple sites, then the contract end date for all sites will be the date that the last installed site went live.
6.2. The Customer has a right to cancel their Service Order under the E-Commerce Regulations and the Consumer Protection Regulations (as amended from time to time). The Customer has the right to cancel the service for a period of 7 days from the date of confirmation of the Customer’s Service Order by the Company (a “cooling-off period”), unless the Customer is a consumer (within the meaning of the Consumer Credit Act). In the event of cancellation during the cooling-off period, the Service Order is treated as if it had not been made. Please be aware that the Customer will lose the Customer’s right to cancel the Service Order during the cooling-off period once the Company has commenced activation of the Services, i.e. by starting the installation or provisioning of Services to the Customer subject only to clause 2.8.
6.3. Where the customer acts as a consumer (within the meaning of the Consumer Credit Act) the Customer has a right to cancel this agreement before the end of the fourteenth day following the day on which the Customer signed the unexecuted agreement. (a “cooling-off period”). In the event of cancellation during the cooling-off period, the Customer will be liable to the Company for any work undertaken on the Customer’s behalf, and for any use made of the Service during the period to cancellation.
6.4. The Company has the right to terminate the Service Order on the grounds of non-payment of invoices or late payment of invoices where not paid within 7 days of invoice being due or non-payment of direct debits. The Company may alternatively suspend service or reduce speed of service in the case of non-payment, in which case the relevant provisions of clause 7 will apply.
6.5. Upon termination of the contact by either party, all equipment must be returned to Kelia Limited within 30 days or the customer accepts a full charge for this hardware.
SUSPENDING SERVICE
7.1. The Company may suspend any or all of the Services immediately without notice if:
7.1.1. the Customer is in breach of any of these Terms and Conditions;
7.1.2. the Company or our agents need to carry out any maintenance, repairs or improvements to any part of the Services;
7.1.3. the Company is obliged to do so by law or in line with these Terms and Conditions of Service;
7.1.4. the Customer fails to make any payment when due;
7.1.5. the Customer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order, goes into liquidation, has an encumbrancer or receiver take possession of its property or assets, or the Company reasonably apprehends that any of the events mentioned herein is about to occur in relation to the Customer and notifies the Customer accordingly.
7.1.6. the Company has reason to believe that the Customer has provided the Company with false, inaccurate or misleading information either for the purpose of obtaining the Services or at any time during the provision of the Services;
7.1.7. the Company believe that the Customer or another person at the Customer’s premises has committed, or may be committing, any fraud against the Company or against any other person or organisation by using the Services;
7.1.8. the Customer or anyone the Customer authorises to deal with us on the Customer’s behalf acts in a way towards our staff or agents which the Company reasonably consider to be inappropriate; or
7.1.9. the Customer is in breach of the Company’s Acceptable Use Policy.
7.2. If the Company suspends the Services because the Customer is in breach of these Terms and Conditions or if paragraphs 7.1.4 to 7.1.9 apply, a reconnection fee of £25 plus VAT will be payable in addition to any outstanding amounts on the Customer’s account before any suspension of service is lifted. Should the reconnection require a service call out the Company reserve the right to levy an additional charge to the Customer.
7.3. The Customer may not suspend its initial order for any reason.
8. WARRANTIES
8.1. The Company warrants that the Company has the authority to license the Products and to provide the Services as set out within the Service Order and under the terms of these Terms and Conditions.
8.2. The Company will always aim to provide the Customer with the best service possible, but the Company cannot guarantee that the Products and Services will be fault free. The Customer will inform the Company about any fault in the Services by phoning, emailing or writing to the Company’s Support Services team, who will aim to respond as promptly as possible.
8.3. The Company is not responsible if the Customer is not able to use the Services because the Customer equipment (for example, any PC, modem, network interface card, printer, switch, local area network or other equipment) does not work properly, is not compatible with the system, does not conform to the relevant standard or does not meet the minimum specifications or because of faults in any 3rd party networks over which the Company has no responsibility.
8.4. Where the Company is acting as a reseller in respect of any Products, the Company shall pass on to the Customer such unexpired warranties the Company receives from the manufacturer of the goods as are capable of transfer and the Company’s liability shall be limited to such guarantee as the Company receives from the manufacturer.
8.5. Except as expressly set forth in these Terms and Conditions and any Product Terms, all warranties, terms and conditions, whether oral or written, express or implied by statute, common law, or otherwise (including but not limited to any warranties, terms and conditions of fitness for purpose, description or quality) are hereby excluded to the fullest extent permitted. Please note in particular, that without limiting the generality of this clause
8.6. the Company does not warrant, represent or guarantee in any way whatsoever that our Products or Services will be virus-free, worm-free, spam-free or inaccessible to malicious code or malignant third parties.
8.7. The Customer acknowledges that software products are by their very nature susceptible to imperfections in operation and no warranty is given in respect thereof.
8.8. The Customer agrees to indemnify and hold the Company harmless from any claim brought by third parties, alleging that the proper use of the Services by the Customer has infringed any right of any kind applicable in the UK or by International legislation and regulation. The Customer shall defend and pay any direct costs or damages finally awarded against Company arising from such claims. The Customer must promptly provide the Company with notice of such claims, full authority to defend, compromise or settle such claims and reasonable assistance to defend such claims at the Customer’s sole expense
9. LIMITATION OF LIABILITY AND NON-AVAILABILITY
9.1. Neither party excludes or limits its liability to the other for death or personal injury caused by its negligent act or omission or for fraudulent misrepresentation.
9.2. The Company shall not be liable in respect of any adverse effect on Services resulting from application or operation of any process by the Customer unless agreed to by the Company in writing.
9.3. Subject to the limits on liability set out in clauses 9.4 and 9.13, the Company shall be liable for any direct damage to a Customer property which is caused due to the negligence of the Company.
9.4. Subject to clause 9.1 our maximum aggregate liability for all claims made by the Customer in relation to any Products or Services provided under the Service Order shall not exceed the charges paid in the previous 12 months for that Product and Service against which the claim is made, plus ten (10%) however that claim may arise including, without limitation, negligent error or omission, breach of contract, tort, misrepresentation (excluding fraudulent misrepresentation) or breach of statutory duty.
9.5. The Company accepts no liability for failure to deliver the Products or perform the Services that arise from the acts or omissions of any third party including but not limited to the Company’s suppliers or third party telecommunications providers or for any failures or faults of their equipment.
9.6. The Company will use all reasonable endeavours to provide a prompt and continuing Service. The Company will not be liable for any loss or damage to data or for any loss or damages resulting from delays, non-deliveries, missed deliveries, or service interruptions or events beyond the control of the Company.
9.7. The Customer acknowledges that the Company is not the manufacturer of any Products supplied hereunder. Save as expressly provided for in these Terms and Conditions, the Company gives no warranties in relation to the Products and shall not be liable to the Customer whether in damages or otherwise for any damage to or defect, or failure in the Products. The Customer must rely solely on any warranties given to the Customer by the manufacturer of the Products or as passed to the Customer in accordance with Clause 8.4.
9.8. Unless the Company expressly agree otherwise under a separate contract the Company is not responsible for the security of the Customer’s networks and/or systems and shall not be liable for unauthorised access thereto.
9.9. Notwithstanding any provisions of this Clause 9, but subject to clause 16.1, in the event of Critical (as defined in the relevant Product Terms) non-availability of connection or use of all of the Services or Products supplied by the Company which results in non-availability below the guaranteed level in any specific Product Terms, the Customer may be entitled to a refund in respect of any Charges. Such refunds are calculated as per the Kelia Product SLA which is available here.
9.10. For the avoidance of doubt, simultaneous non-availability of more than one Service or Product shall not give rise to more than one claim for compensation under clause 8.9 and shall be treated as one claim only.
9.11. The Customer acknowledges that the Company is unable to exercise control over the content of any information passing over the Company connection and or the Company network. The Customer further acknowledges that the Company hereby excludes all liability in respect of any transmission or reception of information of whatever nature.
9.12. The Company shall not be liable for any failure of the Products and Services which results from any interference by the Customer or any third party which is not in accordance with the standard use of the Products or Services or following our written instructions. The Customer agrees to tell the Company immediately about any loss or damage to any part of the Products and Services on the Customer’s property or any cable or routers provided to allow the Customer to use the Products and Services and that the Customer is responsible for any loss or damage to a router or cable regardless of how it happens.
9.13. Subject to Clause 9.1, the Company does not accept liability under or in relation to any Service nor its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation, or for any other reason excluding fraudulent misrepresentation) for any loss of profits, loss of business, loss of anticipated savings, loss of sales or turnover, loss of, or damage to reputation, loss of contract, loss of customers, nor loss of use of any software or data, loss of use of any computer or other equipment or plant, wasted management or other staff time, losses or liabilities under or in relation to any other contract, nor any indirect, consequential loss or damage of any kind. For the purposes of this clause, the term “loss” includes a partial loss or reduction in value as well as a complete or total loss.
9.14. The Company shall not be liable for any loss claim or liability arising from an event of Force Majeure.
10. PAYMENT AND PAYMENT TERMS
10.1. Invoices shall be paid by Customer in cleared funds no later than 14 calendar days from the date of the invoice (“Due Date”), by direct debit or debit/credit or bank transfer.
10.2. All payments for Products and Services will be made under a continuous direct debit authority which the customer agrees to enter into upon signing the Service Order Form. All payments will be due on invoice date except where any other payment terms are agreed and specified on the Service Order.
10.3. The Company reserves the right to pass on any additional costs arising from any increase in the cost to the Company of any Government licence or permit required to provide the Services. Where the Company increases its charges as a result of such additional costs, the Customer shall be entitled to terminate this agreement on not less than thirty days’ written notice, such notice to be received by the Company within three months of the price increase taking effect.
10.4. The Company reserves the right to charge the Customer for the Products and/or Service notwithstanding the Products and/or Service not being available due to either the Customer failing to comply with their obligations under this Agree these Terms and Conditions or the Company’s reasonable instructions from time to time or a failure of the Customer’s systems.
10.5. Payment of all charges under any Service Order Form shall be made in full and free from any deductions, rights of set-off, counterclaims or liens.
10.6. All amounts due shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Company reserves the right to apply monies held against any other account of the Customer.
10.7. Should the Company order any third party equipment or Services on the Customer’s behalf the Customer will be responsible for and shall indemnify the Company against all such costs incurred including, without limitation, any costs incurred due to a cancellation by the Customer.
10.8. Without prejudice to the Company’s other rights if the Customer fails to pay any amount on the due date:
10.8.1. the Company shall have the right to cancel any contract made with the Customer and/or to suspend deliveries;
10.8.2. the Company reserves the right to charge the Customer penalties and interest in accordance with the Late Payment of Commercial Debts Interest Act 1998 as amended;
10.8.3. the Customer shall indemnify the Company and keep it indemnified in respect of all costs (including legal fees) reasonably incurred in attempting to recover such overdue amounts;
10.8.4. the whole of the balance then outstanding to the Company by the Customer on any account whatsoever shall become immediately due and payable.
10.9. The Company may ask the Customer to make initial payments and/or a deposit.
10.10. The Customer must provide the Company with a valid and current email account to enable the Company to provide electronic invoicing to the Customer. The accuracy of that email address is entirely the Customer’s responsibility. The Company reserves the right to modify the E-billing service at our discretion.
10.11. The Company cannot guarantee uninterrupted and/or reliable access any electronic invoicing service and make no guarantees whatsoever as to its operation, availability, functionality, that it will be free of error or disruption or otherwise.
10.12. Annual Price Increases – both the Company and the Customer acknowledge that during the initial term and thereafter there may be annual incremental price increases in each year. The annual price increase will be calculated by taking the contract price and increasing it by Retail Price Index as calculated for the 12 months ended on 31st March of that or previous year. The customers will be notified in writing of this increase if it is applicable with 30 days’ notice before the increase comes into effect.
11. TITLE AND LICENSING
11.1. The Customer acknowledges that the Company (or where applicable the third party owner) shall own and shall retain title to all Intellectual Property Rights to all Products and Services (if any) supplied pursuant to or created as a result of any Service Order Form and any copies thereof.
11.2. At the request and expense of the Company, the Customer shall do all such things and sign all documents or instruments reasonably necessary to enable us to obtain, defend and enforce the Company’s rights in any software and Products.
WAYLEAVES
12.1. Where supply of Service to the Customer relies on the provision of wayleaves, the Company will use its reasonable endeavours to ensure continuity and provision of service. If for any reason whatsoever, the wayleaves are terminated or suspended preventing the supply of service, then the Company may terminate the service to the Customer by 7 days notice in writing or by email, without any liability to the Customer in relation to future supply.
12.2. Where a wayleave is granted by the Customer the Customer will use best endeavours to ensure continuity and provision of service. If for any reason whatsoever, the wayleaves are terminated or suspended preventing the supply of service, then the Company may terminate the service to the Customer by 7 days notice in writing or by email, without any liability to the Customer in relation to future supply.
13. PRIVACY AND DATA PROTECTION
13.1. The Customer must give the Company promptly and accurately all the information which may be needed so that the Company can perform its obligations under these Terms and Conditions. The Customer must also tell the Company immediately if any of the Customer’s details change.
13.2. By having the Services activated in the Customer’s property and/or by using them the Customer gives the Company the Customer’s consent to use the Customer’s personal information together with other information for the purposes of providing the Customer with the Services, service information and updates, administration, credit scoring, customer services, training, tracking use of our Services (including processing usage, billing, viewing and interactive data), profiling the Customer’s usage and purchasing preferences for so long as the Customer is a customer and for as long as is necessary for these specified purposes after the Customer terminate the Services. The Company may occasionally use third parties to process the Customer’s personal information in the ways outlined above. These third parties are permitted to use the data only in accordance with our instructions and in compliance with all applicable laws and regulations.
13.3. Obtaining credit reference searches against a Customer can affect their credit rating. By agreeing to receive the Services, the customer is agreeing to the Company carrying out such searches.
13.4. The Company may also, subject to the Customer’s consent, use the Customer’s personal information to contact the Customer with information about our Products and Services, special offers and rewards, as well as those of selected third parties. From time to time, the Company may contact the Customer by mail, telephone, email, other electronic messaging services (such as text, voice, sound or image messages including using automated calling systems) for these purposes. If the Customer no longer wishes to receive such communications, it should contact the Company’s Customer Support Team, or where applicable unsubscribe by electronic means.
13.5. Customer details will not be shared with companies outside of the Company Group for marketing purposes without the Customer’s consent.
13.6. The Company uses and process the Customer’s personal information in accordance with the Data Protection Act 1998, The General Data Protection Regulations in force at the time and the Company’s Privacy Policy which can be reviewed at the Company’s website.
13.7. If the Company uses third parties to process Customer data, the Company will put a contract in place to ensure the Customer’s information is properly protected.
13.8. The Customer has a right to ask for a copy of the Customer’s personal information which is held on file, (for which the Company may charge a small fee) and to correct any inaccuracies.
13.9. If the Customer does not pay the Customer’s bills for the Services then the Company reserves the right to transfer the Customer’s debt to a third party in which case the Company will also transfer the Customer’s personal information to that third party for them to use in connection with the recovery of the Customer’s debt. Such third party will take such action to recover the Customer’s debt as they consider appropriate and will not be acting on our behalf or to our instructions.
13.10. The Company may monitor and record phone conversations the Customer has with Company staff. The Company will use these to shape training and for compliance purposes.
13.11. The Company may for legal and regulatory purposes, but only where lawful to do so monitor internet communications, including without limitation, any content or material transmitted over the Services.
14. CONFIDENTIALITY
14.1. Either party may have access to or become aware the other party’s Confidential Information. The parties agree that any Confidential Information obtained by the other, its employees, agents or sub-contractors remains the property of the other and neither party shall disclose or use the Confidential Information of the other except to the extent necessary for the performance of these General Terms and Conditions
14.2. The Company may disclose the Customer’s confidential information as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3. The provisions of clause 15.1 shall not apply to Confidential Information that:
14.3.1. is or later becomes generally available to the public, otherwise than through any act or omission on the part of the Customer or the Company
14.3.2. the Customer or the Company can show was in their possession at the time of disclosure and which was not acquired directly or indirectly from the Customer or the Company under obligations of confidentiality
14.3.3. is information rightly acquired from others who did not so far as the acquirer was aware obtain it under pledge of secrecy from the Customer or the Company
14.3.4. is information required to be disclosed or retained by law or relevant regulatory authority.
15. DISPUTE
15.1. Subject to clause 15.2, in the event of any dispute being unresolved by the Company and the Customer within a reasonable period of time being not less than 30 days, then the parties shall in good faith take the matter jointly to Alternative Dispute Resolution (ADR). The outcome of the ADR process shall then be binding on both parties, except where clause 15.3 applies.
15.2. In the event that the Service and the Customer falls under categories covered by Ofcom’s complaints and dispute procedure, then this procedure shall be followed in place of the procedure outlined in clause 15.1.
15.3. Notwithstanding the provisions of this clause 15. the provisions of clause 16.8 shall apply and either party shall be entitled to apply to the courts of England.
16. GENERAL
16.1. Neither party shall be liable for any delay in performing its obligations as a result of any circumstances beyond its reasonable control – “Force Majeure”; such as but without limitation to lightning, flood, exceptionally severe weather, fire, act of God, explosion, war, terrorism, civil disorder, strike industrial dispute (whether or not involving employees of either party), malicious damage (including virus/hacking attacks or other intentional malicious acts of third parties), compliance with a law or governmental order, rule, regulation direction, accident, third party interference, actions or omissions of third party telecommunication providers.
16.2. The Customer hereby warrants to the Company that the Customer has not been induced to enter into the Service Order by any prior representations whether oral or in writing, except as specifically contained in the Service Order and the Customer hereby waives any claim for breach of any such representations which are not so specifically mentioned.
16.3. No forbearance, delay or indulgence by either party in enforcing the provisions of these Terms and Conditions shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach.
16.4. The Company may assign or sub-license the service provided under the Service Order to any associated company or body but subject always that this shall not affect the provision of Services to the Customer.
16.5. These Terms and Conditions together with the Service Order and any relevant Product Terms supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. The Company may make additions to or modifications of any provision of these Terms and Conditions following 90 days’ notice of the same to the Customer. Where any such modification is made, the Customer shall be entitled to terminate the Service Order on not less than one month’s written notice, such notice to be received within three months of the change taking effect. The Company will display these Terms & Conditions on its website www/technologygroup.com
16.6. If any provision of these Terms and Conditions is invalid or unenforceable at law, then such provision shall be severed and the remainder of these Terms and Conditions shall continue in full force and effect.
16.7. All notices that are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the Service Order. Any such notice may be delivered by email or personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 2 business days after posting and if by email or facsimile transmission when dispatched.
16.8. These Terms and Conditions shall be governed by and construed in accordance with the laws of England. Any dispute that may arise between the parties shall, subject to clause 16, be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts.
17. DEFINITIONS AND INTERPRETATION
‘Acceptable Use Policy’ the latest version of the document issued by the Company in accordance with regulation to uphold its obligations under the Communications Act 2003 and clearly define for the Customer the policies and rules regarding use of the Services.
Business or Enterprise a Customer who is a company, a limited liability partnership, a partnership or sole trader or which otherwise trades through the premises to which the Products and Services are supplied and chooses to contract with the Company for specific or enhanced Services designed for commercial or business use ‘Company’ / ‘Us’ Kelia Limited a company registered in England and Wales (Company number 11919939) whose registered office is at Lodge Offices, Turton Gardens, Feckenham. B96 6JB, and any Group company of Kelia (as defined in section 474 of the Companies Act 2006).
‘Confidential Information’ all information identified as such by the disclosing party in writing together with all such other information which relates to the business affairs, finance, products, data, software programs, specifications, documentation, software listings, source or object code, developments, pricing terms, trade secrets, know how, personnel, customers and suppliers of the other party, together with all information which may reasonably be regarded as the confidential information of the disclosing party. Customer the end user receiving and responsible for payment regarding the goods and/or services provided by the Company.
‘E-Billing’ an on-line or email process for sending out or accessing invoices and charges by the Customer for the Services.
“Event of Force Majeure” means any circumstances beyond a party’s reasonable control including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors;
‘Headline Transmission Speeds ‘ the optimum non-guaranteed data transmission rates intended for the Service as stated on the Service Order, that the Customer can expect from the Service under ideal conditions. ‘Initial Term’ a period of 12 months unless otherwise stated on the Order Form.
‘Intellectual Property Rights’ any patents, trade marks, service marks, design rights (whether registerable or otherwise), applications for any of the foregoing copyright, database rights, know-how, trade or business names and other similar rights or obligations, in any country (including, but not limited to, the UK)
“Order Form’ a form provided by the Company containing the specific details of the goods and/or services to be provided, together with the associated costs of this provision, hich is then accepted by the Customer through signing or completing online and submitting it to the Company.
‘Products and Service(s)’ all equipment, software or services which are detailed on the Service Order and/or which are supplied to the Customer by the Company including any new, extra or substitute Products or Services which the Company agrees to supply to the Customer at a later date.
‘Product Terms’ any additional terms and conditions that apply to specific product and services and are referred to on the Service Order. ‘Service Demarcation Point’ The defined socket, equipment port or device to which the Company delivers and supports the Service. This is defined on the Service Order and pointed out to the Customer upon
acceptance of the Service.
‘Service Order’ the completed Kelia Order Form signed or completed online by a Customer submitted to the Company and subsequently accepted by the Company.
‘Service Level Agreement or SLA’ those enhanced service levels which can be ordered by a Business or Enterprise customer subscribing to its enhanced Business or Enterprise services including an SLA.
‘Terms and Conditions’ the terms and conditions set out in this document, together with any Product Terms and all the details set out in any contract document or Order Form the Company may ask the Customer to sign including any regulated agreement under the Consumer Credit Act 1977.
‘Unlimited Use’ the use of the Company’s internet packages and other related services without any form of usage cap imposed by the Company. However, such use remains subject to Kelia’s ‘Acceptable Use Policy’ which may change this.
17.1. Words in the singular shall include the plural and vice versa and words importing gender include any other gender.
17.2. Unless otherwise expressly provided, any reference to any legislation shall be deemed to include any amendment replacement or re-enactment thereof for the time being in force and to include any delegated ;legislation, orders, notices, directions, consents, provisions made thereunder and any condition attaching thereto.
17.3. References to writing shall include any modes of reproducing words in a legible and non- transitory form.
17.4. The headings of paragraphs are for ease of reference and shall not affect the construction of this Contract.
17.5. Unless stated to the contrary in the event of a conflict between the Terms and Conditions and any Product Terms relating to products and services to be provided by the Company then the specific Product Terms shall prevail.
Telephony & Mobile
Agreement structure
1.1 Each Order Form between Customer and Kelia will incorporate these General Terms and any applicable Service Specific terms (together, the ‘Agreement’). The Service Period shall be as defined on the Order Form.
1.2 If there is any inconsistency between the various provisions of the Agreement, the following order of precedence will apply, where 1 has a higher precedence than 2 and so on: (1) Any agreed amendment/Amendment Notice (2) Order Form; (3) Service specific terms (4) General Terms.
2. Services and Coverage
2.1 Kelia shall use reasonable endeavours to provide Customer with the Services and to ensure the security of Customer’s communications at all times. However, due to the nature of the technology, it is impossible to provide a fault-free service.
2.2 Kelia/Network Carrier may suspend the Services: (i) in order to carry out maintenance or testing of the Network; (ii) during any technical failure of the Network, (iii) when it is necessary to safeguard the security and integrity of the Network or to reduce the incidence of fraud; (iv) where it identifies Artificially Inflated Traffic; or (iv) due to Emergency Planning Measures. Kelia/Network Carrier shall endeavour to keep all such suspensions to a minimum and shall give Customer notice of such suspension where reasonably practicable.
2.3 Kelia shall use reasonable endeavours to give Customer access to Overseas Networks; however, Kelia/Network Carrier shall not be responsible for the performance of Overseas Networks or any part of the Network not controlled by Kelia/Network Carrier. Overseas Networks may be limited in quality and coverage and access and service availability depends on the arrangements between the Network and Overseas operators.
2.4 Kelia will provide portal access for management of mobile and VoIP services which may change from time to time. Management of mobile and VoIP estates must be completed by the customer via these portals and once the services have been handed over, they become the responsibility of the customer.
2.5 All bars for mobile and VoIP services are set to OFF by default. It is the customers responsibility to manage these bars to ensure individuals do not exceed spending limits.
3. Customer’s use of Equipment and Services
3.1 Customer may supply the Equipment and Services to End Users, but not to any other party. Customer is responsible for ensuring the compliance of End Users with the terms of this Agreement, all applicable laws and Codes of Practice.
3.2 Customer shall only use Equipment authorised for use on the Network.
3.3 Customer shall not:
(a) use any Equipment or Services for any purpose that Kelia (acting reasonably) believes is abusive, a nuisance, illegal or fraudulent; or
(b) do anything that causes the Network to be impaired or damaged; or
(c) modify Equipment and/or Services (including any Software or integral safety features) that Kelia has supplied to Customer or End Users, except in accordance with the manufacturer’s written specifications, as required by law or with our prior written permission.
3.4 Where a specific End User causes Customer to be in breach of its obligations of clause 3.3, Kelia shall be entitled to suspend such End User’s use of the Services. Before exercising this right, Kelia shall notify Customer of its intention to do so where this is reasonably practicable, allowing an opportunity to remedy the alleged breach (where it is capable of remedy); otherwise Kelia shall notify Customer as soon as reasonably practicable after the suspension. This right of suspension shall only apply during the period of breach, although re-instatement of the Service may be subject to the payment of a reconnection Charge by Customer.
3.5 During any period of suspension, Customer shall continue to pay all Charges due under this Agreement in respect of the suspended Services.
3.6 Customer may use the Equipment and/or Services to access the internet and services not provided under this Agreement. Kelia accepts no responsibility for these services, including where in accessing the service, Customer gives unauthorised parties access to its equipment.
3.7 Customer agrees to use the service according to the Kelia Fair Usage Policy document(s) which can be found on our website or provided upon request.
4. GSM Gateways
Customer shall not connect or continue connection by or on behalf of itself or any End User of any GSM Gateway(s) to the Network without Kelia’ prior written consent, which may be withheld at Kelia’s absolute discretion. Customer shall cooperate with Kelia at all times to ensure that such GSM Gateways that are connected to the Network remain compliant with the applicable law and with Kelia’ GSM Gateway Commercial Policy.
5. Charges and Payment
5.1 Kelia states all Charges exclusive of VAT, unless specified otherwise. All Charges not specified in an Order Form shall be at Standard List Price. Charges shall include the cost of delivery to the UK mainland of any Equipment we supply to you, but shall not include any special equipment or work such as cutting away, decoration, ducting, ground work, building work or other similar work.
5.2 Charges shall be charged in accordance with your price plan and the price plan charges guide which is available upon request.
5.3 Access Fees shall be invoiced by Kelia monthly in advance and all other Charges shall be invoiced monthly in advance. Invoices shall be paid by Customer in cleared funds no later than 14 calendar days from the date of the invoice (“Due Date”), by direct debit or debit/credit. If customer does not pay by direct debit or debit/credit card, an administration charge may be charged, If Customer subsequently cancels its direct debit or debit/credit card instruction without arranging an alternative payment method, Kelia shall be entitled to terminate this Agreement for material breach.
5.4 If Customer reasonably and in good faith disputes an invoice or part of it, Customer shall notify Kelia of such dispute within 14 days of receipt of the invoice, providing details of why the invoiced amount is incorrect and, if possible, how much Customer considers is due. All Charges not in dispute shall be paid by the Due Date.
5.5 Where Kelia has not received payment for undisputed Charges by the Due Date, Kelia shall: (i) contact Customer(s) to request payment; (ii) be entitled to charge interest on the overdue Charges at the highest rates permitted by applicable law; and (iii) be entitled to charge any administration fees or other similar charges levied by a bank in respect of any unpaid items returned by the bank. Where Kelia has not received payment within 16 calendar days of the Due Date, Kelia may take all or any of the following actions until such time as payment, including any interest due, has been received.
(a) withhold any sums owing to Customer by Kelia and offset it against any sums Customer owes to Kelia under this Agreement.
(b) suspend Customer’s and/or End User’s use of the Services in relation to which Charges are outstanding;
(c) withdraw any discount in relation to the relevant Equipment or Service and charge Customer Kelia’ Standard List Prices for that Equipment or Service; and
(d) subject to Kelia having first invoked at least one of the remedies as set out in Clauses 5.5 (a) to (c), Kelia shall be entitled to terminate this Agreement in whole or in part in accordance with Clause 11.3.
5.6 Customer shall not be entitled to offset any sums owed to it by Kelia under any Agreement or dispute between the Parties against any sums that Customer owes to Kelia under this Agreement.
5.7 Kelia may credit assess Customer from time to time as reasonably required to assess Kelia’ risk. Each credit assessment shall entitle Customer to have a credit limit on Customer’s Kelia account (details of which are available on request).
5.8 Customer is not entitled to change its tariff to another tariff with a lower monthly fixed charge during the Minimum Period.
5.9 If Customer does upgrade or change its services before the end of the initial Minimum Period (the “Initial Period”), Customer acknowledges and agrees that it must extend the Agreement by a further Minimum Period (the “Extension Period”). If the Initial Period has not expired at the date of upgrade or tariff change, the relevant Extension Period to the Initial Period shall be extended by the number of months by which the Initial Period had not been achieved. For example, if at month 21 of a 24-month Initial Period Customer wishes to extend by a further 12 month period, the Extension Period will be increased by 3 months to 15 months.
6. SIM Cards / Licenses and Numbers
6.1 SIM Cards & Licenses shall remain the property of Kelia at all times and Customer shall be entitled to use these services (including any Software they contain) provided for use with the Services only.
6.2 Customer shall use all reasonable endeavours to ensure that SIM Cards & Licenses are only used with Customer’s authorisation and shall inform Kelia as soon as is reasonably practicable after Customer becomes aware that a SIM Card is lost, stolen or damaged. Subject to Clause 9.1 Customer shall be liable for any loss or damage suffered by Customer or its End Users as a result of unauthorised use of SIM Cards & Licenses (including due to loss or theft), up to the time that Customer has notified Kelia with subsequent acknowledgment from Kelia that such SIM Card or licenses are being used without Customer’s authorisation.
6.3 Kelia shall allocate telephone numbers to Customer which Customer shall only use to access the Services. Kelia may reallocate or change such telephone numbers as a result of changes in applicable law or instructions from the Regulatory Authorities, but will exercise all reasonable endeavours to minimise any disruption to Customer or End User. Kelia may withdraw telephone numbers that have been allocated to Customer as a result of Customer’s failure to comply with this Agreement.
6.4 If Customer decides to Port a telephone number allocated to Customer by Kelia, Kelia shall transfer Customer’s telephone numbers to Customer’s nominated mobile network operator or VoIP provider for Customer’s use in accordance with OFCOM regulations.
7. Software License
7.1 Equipment and Services provided under this Agreement may contain or use Software. This Software is generally not owned by Kelia. Any Software that is used by Equipment or Services shall be governed by the terms of the relevant Software license set out in such Services Schedule or any shrink wrap or click through Software license provided with the relevant Equipment or Service. In all other cases, where Software is provided Kelia grants the Customer and/or its End Users, as applicable, a non-exclusive, royalty free license to use any such Software for the Term of this Agreement.
7.2 Customer or End User’s license shall be a single user license. Customer may make one copy of the Software for back up purposes. If Customer does not accept the terms of the relevant click through or shrink wrap Software license, Customer shall be prohibited from using the relevant feature of the Service to which the Software relates and Kelia shall not be bound to deliver the relevant Service. Customer shall be responsible for any Software upgrades (including charges) specified by the licensor or Kelia.
8. Orders and Equipment
8.1 Customer shall order Services and Equipment by submitting an order form through email or as notified to Customer by Kelia from time to time. Customer shall accurately complete all fields set out in the order form.
8.2 Orders are binding on both Parties from the date of acceptance by Kelia.
9. Equipment
9.1 If Customer orders Equipment directly from Kelia, which Kelia supplies directly to Customer the provisions of this clause shall apply in relation to that Equipment. Kelia shall bear the risk of loss or damage to Equipment and SIM Cards & Licenses until the point of delivery to Customer. Subject to clause 9.2, Customer shall bear the risk of loss or damage to Equipment and SIM Cards & Licenses from the time of delivery to Customer.
9.2 Customer shall notify Kelia in writing within 5 Business Days of receipt if Equipment or SIM Cards & Licenses arrive having been damaged, or if the order has been incorrectly fulfilled. Customer shall notify Kelia in writing within 10 Business Days of confirmation of Kelia order acceptance if Customer does not receive the Equipment or services. Following such notification by Customer, Kelia shall replace damaged new Equipment or SIM Cards & Licenses,
Equipment lost or stolen in transit, and any incorrect Equipment or SIM Card, free of charge. In the case of damaged used Equipment Kelia shall (at its option) replace or repair the Equipment.
9.3 Subject to clause 6.1, title to Equipment shall pass to Customer as soon as Kelia has received payment for it in full. Where Equipment is provided free of charge title will remain with Kelia during the contract and after the contract term has expired. In this instance, all equipment must be returned to Kelia within one calendar month of the contract coming to an end. If equipment is not returned within one calendar month then Kelia reserves the right to charge full price .
9.4 Where Equipment supplied to Customer by Kelia becomes faulty for reasons other than through Customer’s acts, omissions or misuse within the manufacturer’s warranty period, Customer shall return such Equipment to Kelia at Kelia’s cost and Kelia shall repair or replace the Equipment in accordance with Kelia’s Recovery Policy, or where mandated by the manufacturer of the device, in accordance with the relevant manufacturer’s repair, replacement or recovery policy. Any out of warranty repairs shall be at Kelia’s Standard List Price.
9.5 Kelia does not manufacture Equipment and save for Clause 9.4 above excludes, to the fullest extent permissible at law, all warranties, terms or conditions in relation to Equipment, whether implied by law or otherwise. Kelia shall pass on the benefit of any warranties that Kelia obtains from the manufacturer of any Equipment supplied to Customer by Kelia. However, on expiry of this Agreement, any commitment Kelia has to liaise with the manufacturer in respect of any warranty shall cease.
9.6 Customer shall not remove or obscure any logo or writing on Equipment that Kelia has supplied to Customer and which Customer does not own. Customer shall replace all batteries and other consumable parts of the Equipment.
9.7 Customer shall not, and shall ensure that End Users do not tamper with or attempt to repair or service the Equipment or allow any party other than Kelia to do so. Any attempt to do this may invalidate the manufacturer’s warranty
9.8 Customer shall keep all Equipment that Kelia has supplied to Customer and which Customer does not own, in Customer’s possession (which shall be deemed to include the possession of Customer’s End Users), and shall not sell it, place a charge on it or otherwise dispose of it.
9.9 Kelia’s supply of Equipment and accessories shall be subject to availability.
9.10 If Kelia provides Customer or an End User with security codes as part of the Services, Customer agrees, and agrees to ensure, that its End Users shall keep the security codes confidential. Customer must inform Kelia immediately if it suspects that security codes have been disclosed to a third party so we can issue new security codes.
9.11 Kelia is not obliged to agree to any upgrades to the Equipment it supplies to the Customer (either directly or via a Partner) during or after the Minimum Period but if it does, Kelia shall be entitled to extend the Minimum Period.
10. Call Limit, Deposit and part payment
10.1 Kelia may set a limit on the amount of Charges Customer may incur during each calendar month and/or a maximum number of active Connections and/or a bar on SIM Card(s) being used on overseas networks or for making international calls or premium rate calls, which we refer to as a call limit. Kelia may agree to increase or remove the call limit, after making credit checks. Customer may be able to go over your call limit, but if this happens you shall be required to pay all Charges immediately. Kelia reserves the right to refuse to provide Equipment and/or Services to you if in Kelia’s opinion it may cause you to exceed your call limit or if the call limit is already exceeded.
10.2 Kelia may ask you for a deposit:
10.2.1 When we connect your SIM card or VoIP license.
10.2.2 If you wish to increase or remove your call limit;
10.2.3 if you increase how much you use the Services; or
10.2.4 to unblock your SIM card or VoIP license from contacting international numbers, using overseas networks, or making premium rate calls.
10.3 When this Agreement expires or is terminated for whatever reason, Kelia will repay any deposit that you have provided to us, less any money you owe us. Kelia will not pay any interest on any deposit we receive from you.
10.4 If there is a significant increase in your usage between bills, we may contact you and require you to pay all or part of your outstanding usage Charges in order to continue to use the Services.
10.5. Services will be subject to the Kelia Fair Usage Policies that can be found on our website.
11. Termination
11.1 Customer shall have the right to terminate this Agreement in whole or in part by giving Kelia 1 month’s written notice of termination, subject to the payment of any early termination charges as set out in Clause 12.7.
11.2 The Parties shall each have the right to terminate this Agreement with immediate effect (by serving written notice of termination to the other Party):
11.2.1 if the other Party becomes subject to an Insolvency Event; or
11.2.2 if the other Party is in material breach of any of its obligations under this Agreement (provided that where such breach is capable of remedy, the breaching Party is given 30 days to rectify such breach from the date that notice of any breach is received from the non-infringing Party).
11.3 Subject to Clause 5.5(d), Kelia may terminate this Agreement in whole or in part with immediate effect, by giving notice in writing:
11.3.1 where Customer has failed to pay any Charges due within 30 calendar days of the Due Date and has gone through the Kelia collection cycle; or
11.3.2 where Kelia has repeatedly invoked its rights of suspension pursuant to Clause 3.3 or Clause 5.5(b), or has invoked its right of suspension under clause 2.2 (iv) for a period of not less than 14 days.
11.4 The Parties shall acknowledge, as soon as reasonably possible, the receipt of any notice of termination of this Agreement (in whole or in part) received in writing from the other Party.
12. Consequences of termination
12.1 On termination of this Agreement as a whole, or partial termination (for example of a specific Order), Customer shall immediately cease use of the Software (except Software which is embedded in Equipment to which Customer has title).
12.2 Customer shall (if requested by Kelia, delete or destroy all copies of the user documentation which Kelia has supplied or which Customer has copied, in whatever form and return, delete or destroy all copies of the Software (except Software which is embedded in Equipment to which Customer has title) within 7 calendar days of termination of this Agreement or of termination of the relevant Service, and provide Kelia with written confirmation that all such copies have been returned, deleted or destroyed.
12.3 Where this Agreement is terminated as a whole, Kelia’s entire relationship with Customer shall terminate and Kelia shall no longer supply, and Customer shall immediately cease to use any Services that were supplied pursuant to this Agreement.
12.4 On expiry of a Service Period, the Service shall continue until terminated by either Party on 30 days’ notice in writing, in accordance with the Order Form and this Agreement. Customer has to terminate the agreement in writing to ‘cancel@kelia.co.uk’.
12.5 On termination of the Order Form, the Customer’s Services supplied pursuant to the relevant Order Form shall cease immediately and the Customer will immediately pay to Kelia all sums due or payable under the relevant Order Form in relation to the terminated or expired Services, including any early termination payment calculated in accordance with clause 12.7 below.
12.6 Where this Agreement or any Service has been terminated in accordance with Clause 10 or as otherwise permitted in this Agreement prior to expiry of a Service Period, Customer shall pay to Kelia a lump sum termination payment calculated in accordance with the provisions of 12.7. For the avoidance of doubt, where this Agreement is terminated as a whole, each Connection placed under this Agreement shall also terminate.
12.7 Where Customer terminates any Connection prior to the expiry of that Connection’s term per connection (whether on termination of the Services as a whole, or otherwise, Customer shall pay to Kelia a lump sum termination payment calculated as:
(a) Access Fee RRP X number of months remaining of each term per connection that has been terminated. Any customer that has an agreed discount on their service and wishes to terminate before their contract term has expired will be charged the remaining rental at RRP.
12.8 If Customer disconnects a material part of its Connections, or systematically disconnects Connections on a recurring basis during the term of this Agreement, Kelia shall have the right to terminate the relevant Service and charge Customer a termination payment calculated in accordance with the formula set out in clause 12.7.
12.9 Where this Agreement is terminated due to Customer porting to another network or where Customer migrates the mobile phone number(s) to another service provider, Kelia may charge a reasonable administration fee in respect of each number that is ported or migrated in addition to any termination fees payable in accordance with clause 12.7.
13. Intellectual Property
13.1 The Intellectual Property Rights that exist in Services, Software and Equipment are owned by Kelia and Kelia’s licensors. By supplying Customer with Services, Software and Equipment, Kelia is not transferring or assigning ownership of any Intellectual Property Rights in or relating to them to Customer.
13.2 Where Kelia creates Intellectual Property Rights during or as a result of the supply by Kelia of Services, Software and Equipment to Customer, Kelia shall own all such Intellectual Property Rights.
13.3 Customer must not do anything to jeopardise Kelia or its licensor’s Intellectual Property Rights.
14. Changing the terms of this Agreement
14.1 Kelia shall be entitled to change the terms of this Agreement by issuing an Amendment Notice, without Customer’s consent, to the extent that such changes are required by or are necessary (in Kelia’s opinion acting reasonably) to comply with applicable law. Where practicable, Kelia shall provide Customer with advance notice of such changes. If advance notice cannot be provided, Kelia shall advise Customer of the change as soon as practicable after it has been made. Kelia shall not be liable to Customer for any claims by Customer as a consequence of such changes.
14.2 Kelia may change the terms of this Agreement without Customer’s consent where to the extent that such changes are required due to alterations to the Network; the manner in which Kelia operates; the way in which Kelia provides Services (including where, in Kelia’s reasonable opinion, it is no longer commercially viable to provide a particular Service), provided that such changes affect at least 90% of Kelia’s relevant customer base. In these circumstances, Kelia shall advise Customer of the change via an Amendment Notice, at least 30 days in advance of the change taking effect. If Customer is materially disadvantaged and objects to such change, Kelia shall not be liable to Customer for any claims by Customer as a consequence of such changes.
14.3 In line with the carrier, Kelia may change the price of mobile tariffs in March 2014 and thereafter in April each year in line with the previous February RPI inflation rate.
14.4 Save as set out in Clauses 14.1 and 14.2, changes to this Agreement must be made by written agreement of the Parties.
15. Confidentiality
15.1 This Agreement and any information about Services that is not publicly available, is confidential, and may be disclosed by Customer to Customer’s employees only, strictly on a need-to-know basis, unless otherwise agreed in writing with Kelia.
15.2 Kelia shall be entitled to keep records of Customer information, which Kelia shall use to perform Kelia’ obligations under this Agreement, and for related purposes.
15.3 Kelia shall be entitled to disclose Customer information as required by any legal, regulatory or financial agency or by court order, any Kelia group company or any third party (some of whom may be outside of the European Union) for the purposes of providing the Service.
16. Liability
16.1 Nothing in this Agreement shall operate to restrict either Party’s liability to the other from: death or personal injury resulting from negligent acts or omissions; claims for non-payment; the non-excludable statutory rights of consumers (for example, under laws providing for strict product liability); breaches of any Software license; breach of any obligation of confidence; and any infringement of Kelia’ Intellectual Property Rights.
16.2 Except for Clause 16.1 above and to the extent not prohibited by law:
16.2.1 each Party’s maximum aggregate liability for all claims relating to Equipment or a Service provided pursuant to this Agreement, whether for breach of contract (including repudiatory breach), breach of warranty or in tort, including negligence, will be limited to 100% of the value of the Charges paid or payable under the relevant Order Form during the previous 12 month period under which the Equipment or Service that is the subject matter of the claim is supplied; and
16.2.2 neither Party will be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of the terms of this Agreement; nor any direct or indirect loss of business, revenue, profits, goodwill, use, data, compensation, ex gratia payment or other economic advantage, however they arise, whether in breach of contract (including repudiatory breach), breach of warranty or in tort, including negligence, and even if that Party has previously been advised of the possibility of such damages or whether such liability could be assumed to be the responsibility of Kelia, Kelia shall not be liable to Customer if it is unable to provide any of the Services contemplated by this Agreement due to circumstance outside its reasonable control.
16.3 Except for the payment obligations of the Customer, neither Party will be responsible or liable in any way for the failure or delay in the performance of its obligations due to Force Majeure. If a cause relied on by a Party hereunder ceases to exist, the Party will perform or resume performance of its obligations and the time for performance will be extended by a period equal to the duration of the Force Majeure. If Force Majeure persists for a period of more than 60 days, the other Party will be entitled to terminate this Agreement on written notice.
16.4 The warranties specified in this Agreement and/or any Service Specific Terms are the only warranties provided with respect to Services provided to Customer by Kelia. To the extent permissible at law, all other warranties (whether express or implied and including any implied warranties of fitness for a particular purpose or merchantability) are excluded provided that where legislation implies warranties or conditions or imposes obligations (statutory provisions) which cannot be excluded, restricted or modified except to a limited extent, this Agreement must be read subject to those implied statutory provisions.
17. Transferring this Agreement to others
17.1 Kelia shall be entitled to transfer in whole or in part any of its rights and obligations to any company within Kelia’s Group at any time. Kelia may use subcontractors to perform any of its obligations under this Agreement but remains responsible for their performance. Kelia may transfer in whole or in part any of its rights and obligations under this Agreement to any other third party provided that it has obtained the prior written consent of the Customer which shall not be unreasonably withheld or delayed.
17.2 Customer may transfer in whole or in part any of its rights and obligations under this Agreement to any other person or company, provided that it has obtained ‘Kelia’s prior written consent to such transfer and has satisfied any reasonable conditions imposed by Kelia (including credit vetting of the entity to whom customer intends to transfer its rights and obligations under this agreement).
17.3 Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
18. General Provisions
18.1 If Customer supplies Kelia with personal data, Customer shall ensure that it is accurate and up to date when disclosed. Customer shall also ensure that Customer has obtained from the individuals concerned all necessary consents under the Data Protection Legislation to both the supply of the data to Kelia, and the processing of it by Kelia, for the purposes of performance of this Agreement, supply of the Equipment and Services and for direct marketing about Kelia’s similar products and services. Customer shall also ensure that any individual to whom personal data relates has given consent for Kelia to pass such data back to Customer. Customer agrees that where it is reasonably requested by a Partner, Kelia may provide Customer’s billing and contract information to the relevant Partner for the purposes of billing and administration of the account.
18.2 Each Party shall comply with its obligations under the Data Protection Legislation. Customer acknowledges that Kelia retains the role of Data Controller as defined in the Data Protection Act 1998 except in the limited circumstances where Kelia processes any personal data for and on behalf of Customer.
18.3 All notices served by Customer under this Agreement shall be in writing and sent to the Head of Legal at Kelia, 11 Turton Gardens, Feckenham. B96 6JB, or any other address Kelia directs Customer to use from time to time. Kelia shall send all notices to Customer at Customer’s registered office. Notices will be deemed given: where they are hand delivered, when a duly authorised employee or representative of the recipient gives written acknowledgement of receipt; for e-mail communication, at the time the communication enters into the information system of the recipient; for posting, three days after dispatch; and for fax on receipted transmission of the fax.
18.4 Neither Party shall lose any right under this Agreement if it fails to use that right, or delays in using it. For a waiver of a right to be valid, it must be written and will not give rise to an ongoing waiver of that right unless it is expressly stated to do.
18.5 Termination of this Agreement or any part thereof, shall be without prejudice to any other rights or remedies a Party may be entitled to at law or under the Agreement and shall not affect any accrued rights or liabilities of either Party nor the coming into force or the continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
18.6 This Agreement is governed by English Law and is subject to the non-exclusive jurisdiction of the English Courts.
18.7 Only provisions set out in this Agreement shall apply to Kelia’s supply of Services to Customer. All other provisions are expressly excluded to the maximum extent permitted by law. The Parties acknowledge that, in entering into this Agreement, neither Party has relied upon any statement or warranty made, or agreed to, by any person, except those expressly set out within this Agreement. However, this shall not be taken to exclude either Party’s liability for fraud.
18.8 If a misrepresentation or untrue statement has been made, the only remedy available to the Parties shall be a claim for damages for breach of this Agreement, unless such misrepresentation or untrue statement was made fraudulently, or a provision of the Agreement was induced by fraud, in which case all remedies under English Law shall be available.
18.9 All headings in this Agreement are there for convenience, and do not have any legal effect. Use of the singular includes the plural and vice versa.
18.10 Any changes made to Customer’s systems or processes that may affect the Services (including any change to computer server software) are at Customer’s sole risk. Kelia shall not be liable to continue to support the Services to the extent that they are affected by such change.
18.11 Every provision in this Agreement is independent from the others to the extent that, if a provision, or any part of it, is ruled to be illegal or unenforceable by the English Courts, that provision or the relevant part of it shall be treated as having been deleted from this Agreement, without affecting the remainder of that provision or the other provisions of this Agreement, which shall still have full effect.
18.12 Where Kelia supplies Equipment and Services to Customer that is not expressly covered by the Order Form, such supply shall be deemed to be governed by the terms and conditions of this Agreement.
18.13 If there is a dispute under this Agreement, and Partner has been unable to resolve the issue to Customer’s satisfaction, Customer may escalate the issue to Kelia customer services. If Kelia customer services is unable to resolve the issue, this issue will be escalated through Kelia’s customer complaints procedure. You may ask that the matter be referred to an independent ombudsman in accordance with our customer complaints code of practise which is available by contacting Kelia. The Parties shall use the escalation process to its full before taking legal action against the other Party.
18.14 All information that the Parties provide to each other in relation to this Agreement must be accurate and complete and Customer shall promptly inform Kelia in writing of all changes to information Customer has provided to Kelia, in particular, if Customer intends to stop, stops or has stopped trading, if Customer intends to sell its business, if Customer changes name or if the legal status of Customer’s business changes.
Definitions
Access Fee – The monthly or other periodic fee payable by Customer for use of the Services.
Amendment Notice – A document setting out a change to this Agreement that is issued to Customer by Kelia that does not require the signature of either Party.
Artificially Inflated Traffic – A flow or volume of traffic via any Service, which Kelia believes is: (i) disproportionate to the flow or volume of traffic which Kelia expects from good faith commercial practice and usage of the Service; (ii) disproportionate to Customer’s previous traffic profiles (in any given month) with Kelia; (iii) uses automated means to make calls (save where this is expressly approved by Kelia in writing); or (iv) may result in Customer exceeding the credit limit which Kelia places on Customer’s Kelia account from time to time.
Billing Manual – Kelia’ call- and billing rounding measures from time to time, which shall be available to Customer on request.
Business Day – A day (other than a Saturday or a Sunday) on which clearing banks are open for business in the city of London (other than solely for trading or settlement in Euro).
Charge – Access Fees, Connection Fees, fees for Equipment, Software License fees, call fees, airtime fees and all other fees payable by Customer for use of the Services.
Codes of Practice – All guidelines governing use or provision of mobile telecommunications and data services, issued by any generally recognised bodies (such as PhonepayPlus) or that are adopted by Kelia from time to time, and all instructions, regulations or guidance issued by the Regulatory Authorities, whether or not mandatory.
Connection – A Kelia SIM Card that has been configured to attach to the Network, with a price plan or SOC associated with it so that End Users can use and be charged for Services supplied under an Order Form.
Customer Information – Information that (a) Customer provides to Kelia; (b) details of how Customer uses Services, including information relating to the volume and types of calls made, details of charges paid & other financial information; or (c) details of how Customer has performed in meeting its obligations under this Agreement.
Data Protection Legislation – The Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, any amendments or replacements to them, and any other legislation implementing Directives 95/46/EC and 2002/58/EC
Emergency Planning Measures – The measures that may be taken as a result of Kelia’ obligations under (i) the General Conditions under section 45 of the Communications Act 2003 and (ii) the Civil Contingencies Act 2004; or any similar law.
End User – A person using Equipment or a Service, who is an employee or contractor of Customer.
Equipment – Any tangible material, but not a SIM Card, supplied by Kelia to Customer, or connected to the Network on Customer’s behalf, such as a mobile phone, a connecting cable, a power supply, or a PC data card.
Force Majeure – Any cause beyond a party’s reasonable control including without limitation, acts of God, war, fire, flood or other accident, strike, lockouts, delays in transport, material shortages, failures or fluctuations in electric power or telecommunications services or equipment, restrictions or prohibitions of any government or semi-government authority.
GSM Gateway – Any equipment containing a SIM Card which enables the routing of calls from fixed apparatus to mobile equipment by establishing a mobile-to-mobile call.
GSM Gateway Commercial Policy – Kelia’s policy from time to time governing Customer’s use of GSM Gateways, available at: www.Kelia.co.uk/enterprisecontracts.
Insolvency Event – An event where a Party either ceases or threatens to cease conducting its business in the normal manner; or is treated as being insolvent, or threatens or is in jeopardy of becoming insolvent because it: (a) is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986); or (b) makes or offers to make any arrangement or composition with any one or more of its creditors; or (c) commits any act of bankruptcy or if any petition or receiving order in bankruptcy is presented or made against it; or (d) any resolution to wind up it up (being a limited company) is issued or passed or presented otherwise than for reconstruction or amalgamation; or (e) has had a receiver, administrator or liquidator appointed to it.
Intellectual Property Rights – Patents, design rights, trademarks, copyrights (including any such rights in typographical arrangements, websites or software), rights subsisting in trading, business or domain names and e-mail addresses, rights in inventions, rights in databases and all other intellectual property rights of a similar or corresponding character which subsist now or in the future in any part of the world whether registered or not and whether or not capable of registration, and any applications to register or rights to apply for registration of any of the foregoing in all parts of the world.
Network – The telecommunication systems Kelia uses to provide the Services.
OFCOM – The UK communications industry regulator appointed and empowered under the provisions of the Communications Act 2003, or any appointment that replaces it
Order Form– The document setting out the agreed commercial terms relating to Kelia’s provision of Equipment and/or Services which includes Kelia’s charges and any specific commercial terms and which incorporates any relevant Service terms and conditions and these General Terms
Overseas Networks – Telecommunication systems outside of the UK Mainland used (but not controlled) by Kelia in providing the Services.
Partner a person authorised by Kelia who may have sold Equipment or Services to the Customer;
Port – The transfer of a mobile number that is connected to the Kelia Network under this Agreement to a different network provided by another supplier;
Price plan charges guide – the terms and “out of price plan bundle” charges for your price plan which is available online at www.kelia.co.uk and updated by Kelia from time to time.
Regulatory Authorities – OFCOM, the Office of Fair Trading, the Competition Commission, the Information Commissioner, the Advertising Standards Authority, or any similar authority established from time to time;
Recovery Policy – Kelia’s policy regarding the replacement or repair of faulty equipment, as amended from time to time.
Service – A service provided by Kelia pursuant to this Agreement as described in the relevant Service Specific Terms.
Service Period – The minimum term for which Customer commits to receive a Service, as specified in the relevant part of the Order Form.
Service Specific Terms – A Schedule that sets out service specific information such as terms and conditions, specifications and other technical information.
SIM Card – A subscriber identity module card, which is an electronic memory device for storing user specific data to allow controlled and secure use of Equipment on the Network.
Software – A machine executable computer program, software module or software package or any part thereof (in object code only), supplied by Kelia or its licensors to Customer irrespective of how it is stored or executed.
Software License – The terms and conditions that prescribe how Customer shall use Software and set out the rights of the Software owner/licensor and the Software user in relation to such Software. This includes any software license including Hosted VoIP Services or similar.
Standard List Price(s) – Kelia’s standard unsubsidised Charges for business Services and Equipment as advised to Customer by Kelia and/or as made available on request by Kelia (as amended by Kelia from time to time).
Kelia’s Group – Kelia Group and any company in which Kelia Group holds, directly or indirectly, 50% or more of its issued share capital or has the right to exercise, directly or indirectly 50% or more of the voting rights.