General Terms and Conditions – Rev. 1.02
YOUR CONTRACT WITH EVD IS COMPRISED OF THE FOLLOWING DOCUMENTS: (i) GENERAL TERMS AND CONDITIONS
(ii) THE SERVICE AGREEMENT, ORDER SCHEDULES AND ANY ADDITIONAL ORDERS
(iii) RELEVANT TARIFF(S) FOR THE SERVICES; AND
(iv) ANY ADDITIONAL TERMS AND CONDITIONS RELATING TO SPECIFIC SERVICES.
“Act” means the telecommunications Act 1984 and any amendments to the Act
“Additional Order” means additional services added to the Agreement
“Agreement” Document(s) detailing services required by the customer, relevant conditions, and pricing
“Customer” means the company, partnership, organisation or individual listed on the order documentation
“CPE” means Customer Premises Equipment
“Deliverables” means any product or material produced or developed by EVD for the customer.
“Equipment” means any equipment supplied by or on behalf of EVD to the Customer for the purpose of providing Service(s)
“EVD” means Eastern Voice and Data Ltd.
“Order Schedule” Document(s) detailing customer service requirements
“Services” means the service(s) as described in 1.4 below and to include the Deliverables supplied by EVD to the customer as set out in the Specification.
“Service Provider/EVD” means Eastern Voice & Data Ltd whose registered office is Unit 2 Bowthorpe Works Bowthorpe Hall Rd, Norwich, NR5 9AA
“Service Level Agreement” means the service level agreement provided to the customer where relevant.
“Specification” means the description or specification for the Services agreed by EVD from time to time.
- Provision of Services
1.1 The Services we supply to you are those Services which:
1.1.1 you have elected to receive as set out in the Order Schedules, or
1.1.2 you have ordered via telephone and are set out in the order confirmation, or
1.1.3 have been ordered via our website or,
1.1.4 you have subsequently ordered in writing, by fax, by email or by telephone, and in each case which we have agreed in writing or by email to supply to you.
1.1.5 services which have been ordered on your behalf by an authorised EVD Partner and which you have subsequently confirmed that you wish to receive.
1.2 “The Services” means the services EVD has agreed to provide as described in the Service Agreement, order schedules and various editions of EVD ’s literature and publications and price lists. In the event that there is any inconsistency or ambiguity between words of these terms and conditions and EVD ’s literature and publications and price lists, the provisions of these terms and conditions shall prevail. EVD reserves the right from time to time to revise or vary the terms of their literature, publications and price lists and provided they have given you notice, such variations and revisions shall form part of the contract.
1.3 These terms and conditions in conjunction with any service specific terms and conditions prevail over any other documents published or delivered to you by EVD , or any representation made orally to you, and any provisions of your order which attempts directly or indirectly to vary ,add to, or restrict these terms and conditions however made or attempted to be made shall fail unless and until you have EVD ’s express written consent (signed by a Company Director) to such variations, additions or restrictions. Nor shall any oral representation similarly form any part of the contract or amount to any inducement to enter into the contract or contract collateral to the contract or restrict any enforcement by EVD of any of the terms of the contract.
1.4 Services may include (but are not limited to):
1.4.1 The ability to make or receive a Telephone Call (Telephony service);
1.4.2 The provision of a Telephone Line or Lines for a rental charge (Line rental service);
1.4.3 The provision of Data Services and internet access (Data service);
1.4.4 The provision of Inbound telephony services (Inbound service);
1.4.5 The provision of IP telephony services (IPT service);
1.4.6 Any other Services which we may offer.
1.5 EVD will use reasonable endeavours to provide Services by the date(s) we agree with you and to continue to operate, maintain and where applicable restore the Services in the event of a failure until this Agreement is terminated. However we will not be liable for any loss or damages whatsoever should the Services not commence or restart on the agreed date.
1.6 In providing the Services we shall use the reasonable skill and care that may be expected from a competent Communications Service Provider.
1.7 Services may be subject to Acceptable Use or Fair Usage Policies which at the time of application will be the latest version and available at acceptable-use-and-fair-use-policy-for-broadband-v10
1.8 EVD cannot guarantee and do not warrant that the Service(s) will be free of interruptions or will be fault-free and we will not be liable for any loss or damages should the Service(s) be interrupted from time to time. You accept that there may also be degradations of the quality of the Service from time to time due to matters beyond our control, and that we will not be liable for any loss or damages should the quality of the Service we provide be affected by such matters. Service level guarantees may apply to certain services and which at the time of application will be the latest version available on our website.
1.9 EVD shall use reasonable endeavours to meet any performance dates specified in the Service Level Agreement, but any such dates shall be estimates only and time shall not be of the essence for performance of the services.
- Duration and Termination
2.1 The contract shall commence from the date of acceptance by EVD and shall continue until terminated in accordance with these terms and conditions and any service specific terms and conditions. The contract is subject to a minimum term, dependant on the services provided. The minimum term shall run from the connection date of all services for the agreed minimum term and continue thereafter, subject to the service by either party of a minimum of a ninety day written notice of termination expiring on the last day of a calendar month.
2.2 For the avoidance of doubt the standard minimum term is 36 Months unless specified on the Service Agreement or order schedule.
2.3 Where additional services are ordered during this contract, the minimum term of the entire Agreement for all services will be extended to either:
2.3.1 the original minimum term of the entire Agreement or;
2.3.2 the standard minimum term of the additional service(s) whichever expires latest.
2.4 The customer may bring the contract to an end before the expiration of the minimum term by service of a ninety day written notice of termination expiring on the last day of a calendar month provided that they shall pay to EVD liquidated damages which will be the average of the last 6 months bills (or less if you have not had 6 bills) multiplied by the remaining months remaining of the minimum term & notice period. You will also pay any costs due to early termination, all associated costs to EVD raised by the network suppliers & any discount on hardware agreed at the time of purchase in return for a term contract.
2.5 Once the initial minimum term has expired the customer may bring the contract to an end by service of a ninety day written notice of termination expiring on the last day of the calendar month. Where notice is not received as specified the customer shall pay EVD , liquidated damages calculated using the formula (specified in 2.4).
2.6 As standard, all Services will be ceased on the agreed contract termination date. Where EVD has agreed in writing to provide service after the contract termination date all services shall be subject to standard charges available at our website or by email on request.
2.7 Should you during the fixed term obtain telephone carrier network services from another Service Provider you will pay EVD agreed liquidated damages calculated using the formula (specified in 2.4) but substituting for the average six monthly charges (or lesser period) the diminution in the charges which EVD would otherwise have charged you.
2.8 Where notice is not received in accordance with the contract, EVD reserve the right to suspend services immediately, pending payment of all outstanding invoices, termination charges, and any anticipated charges which may be accrued during the contracted minimum term or notice period.
2.9 The customer has the right to cancel the contract without incurring termination charges by providing written notice within 7 days of the date of the signing of the Agreement. The customer agrees to pay any charges reasonably incurred through the provisioning of any services. Where the customer has commenced using any service or equipment you will have deemed to have accepted these conditions and will be subject to the minimum term and termination procedures as specified in clause 2, whether or not this 7 day period has expired.
2.10 Notwithstanding anything to the contrary expressed or implied in the Agreement, EVD (without prejudice to it’s other rights) may terminate the contract forthwith and without notice in the event that:
2.10.1 A liquidator (otherwise other than for the purpose of amalgamation or reconstruction), trustee in bankruptcy, administrator, receiver or receiver and manager is appointed in respect of the whole or part of your assets and undertaking or you enter into an arrangement or composition with creditors, or if you become unable to pay your debts within the meaning of S123 of the Insolvency Act 1986, or other circumstances arise which entitle a court or creditor to appoint a receiver administrator or to make a winding up order, or if any of the proceedings are threatened, or
2.10.2 You are in breach of obligation to EVD other than the payment of money and upon being given notice of that breach in writing you fail to remedy that breach within twenty-eight days.
2.10.3 Any licence under which you have the right to run your telecommunications system and connect it to the EVD system is revoked amended or ceases to be valid.
2.10.4 You fail to utilise the Services either to the extent anticipated or at all.
2.10.5 You fail to pay EVD ’s charges whether demanded not.
- Use of the Services
3.1 You are responsible for the safe custody and safe use of The Services and any related equipment after installation of The Services, and in particular you undertake.
3.1.1 Not to cause any attachments other than those approved for connection under the Act to be connected to The Services.
3.1.2 Not to contravene the Act or any other relevant regulations or licenses.
3.1.3 Not to tamper with equipment or not add any hardware or software to their Services without providing advance notice to and agreement from EVD.
3.1.4 Unless otherwise expressly agreed by EVD in the Service Contract, be exclusively responsible for maintaining regular backup copies of its data to ensure recovery of its data.
3.1.5 Take all reasonable steps to ensure unauthorised access is not gained to their Sevices.
3.1.6 Ensure that it maintains and complies with any licenses, consents or permissions in respect of all software distributed by or used within the Customer’s business and EVD will be entitled to refuse any request to uninstall any non-licensed illegal software and will be under no obligation to support any un-licensed or illegal software.
3.1.7 Allow EVD to access the Customer’s Services via a remote access and shall give permission for EVD’s technical support staff to remotely access and monitor the Customer’s Services for the purposes of fault diagnosis and resolution.
3.1.8 Knowingly create or introduce, or allow to be introduced, any Malicious Software or Codes or other destructive or contaminating programs.
3.1.9 Ensure that all remote devices used by the Customer are capable of automatically updating their anti-virus and anti-spyware solutions independently of any centrally managed solution.
3.2 Should you contravene your obligations it is agreed that EVD will not be liable for any costs associated with rectification and that all such costs shall be borne by you.
3.3 Your apparatus shall at all times conform to the relevant standard or standards (if any) for the time being designated under the Act and EVD shall not be under any obligation to connect or keep connected any apparatus if it does not conform or if in the reasonable opinion of EVD it is liable to cause death, personal injury, damage or impair the quality of any Services provided to you.
3.4 You undertake to use The Services in accordance with the terms of the Act and any licence granted there under. Without limitation, you undertake to use reasonable endeavours not to use The Services:
3.4.1 As a means of communication for a purpose other than that for which The Services are provided; and
3.4.2 For the transmission of any material which is defamatory, offensive or of an abusive, obscene or menacing character.
3.5 You shall not assign or delegate or otherwise deal with all or any of your rights under the contract which shall only, if at all be enforceable by you against EVD but this sub-clause does not restrict the rights of EVD.
3.6 Provide EVD with such information and materials as EVD may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects.
- Suspension of Services
4.1 EVD has the right to suspend or cease the provision of services without notice and without compensation in the event of the following:-
4.1.1 The Customer is in serious breach of the terms of their Agreement with EVD
4.1.2 EVD believes the services are being used fraudulently or
4.1.3 EVD believes that the services are being used for any purpose as set out in section 3.4.2 above.
4.1.4 EVD are required to comply with an order, instruction or request from Central of Local Government, the emergency services or other relevant administrative body.
4.1.5 EVD reasonably believes the customer is attempting to transfer services to an alternative provider in breach of the Agreement without providing relevant notice or payment of outstanding invoices and termination charges.
4.2 You shall reimburse EVD for all reasonable costs incurred by the implementation of the suspension and subsequent reconnection or provision of the services, where the suspension is caused by breach of Agreement, fault or omission on your part.
- Changes and interruptions to the Services
5.1 Occasionally we may have to implement alterations that could affect the Services. These alterations are listed in sub clause 5.2. If we have to interrupt the Services we will use reasonable
endeavours to restore them as quickly as possible.
5.2 Occasionally we may have to:
5.2.1 change the code or phone number or the technical specification of the Services for operational reasons;
5.2.2 interrupt the Services for operational reasons or because of an emergency;
5.2.3 give you instructions that we believe are necessary for health or safety or to maintain the quality of the Services that we supply to you or to our other customers to enable EVD to exercise its obligations under the Service Agreement(s);
6.1 The Customer will permit or procure permission for EVD or any other person(s) authorized by EVD to have reasonable and safe access to the premises and service connection points where the services are to be installed.
6.2 The Customer shall provide information and reasonable assistance where requested
6.3 EVD will normally carry out work by appointment during working hours, but may request you to provide access at other times. Such requests shall not oblige you to provide access
6.4 At the Customers request, EVD may agree to work outside of standard working hours and if so you shall pay all reasonable charges for complying with the request
6.5 The Customer consents to EVD or it’s appointed agents, entering their premises to reclaim equipment or cabling which has not been paid for and to repair equipment when necessary.
7.1 The Customer agrees that any equipment installed or provided by EVD shall at all times remain the property of EVD until payment is received in full at which point title will transfer to the Customer
7.2 Equipment will be delivered to the address specified on the Order Schedule or Agreement and liability for the equipment shall transfer to the customer at the point of delivery
7.3 The Customer is responsible for any loss or damage, howsoever caused (except damage or loss caused by EVD), and you agree to pay for any repairs or replacement
7.4 EVD will use reasonable endeavors’ to pass on the benefit of the manufacturers warranty
7.5 All equipment is supplied with a standard “back to base” warranty and it is the customers’ responsibility to arrange and pay for the return of the equipment to EVD where a claim under the manufacturers warranty is requested
7.6 The customer is responsible for installing any equipment to their LAN & or providing IP addresses necessary for connection of such IT equipment. For the avoidance of doubt where such connection incurs cost that cost shall be borne by the customer.
7.7 The customer will facilitate remote connection to all devices or equipment supplied by EVD by providing the necessary tools & or facilities to enable EVD to complete such remote connection.
- Charges and Payment
8.1 You agree to pay charges levied by EVD on demand (time being of the essence). The charges will include hardware, rental, installation (where applicable), usage and any other charges as specified in the service Agreement, order schedule, or current price list in force at the time.
8.2 Any costs incurred by EVD associated with moving customer premises equipment at your request or connecting equipment to your LAN or WAN will be borne by you. You will also be responsible for the payment of any costs of modification and costs associated with and previously unforeseen by EVD .
8.3 Should increased charges become necessary due to regulatory requirements EVD will provide you with twenty-eight days notice in writing and you will be obliged to pay the revised charges under the remaining term of the contract.
8.4 Should increased charges become necessary due to non-regulatory requirements EVD will provide you with twenty-eight days notice in writing. The customer may provide EVD within seven working days of notification, twenty-eight days written notice to terminate the contract without incurring any liability to pay liquidated damages. Where notice is not received within seven working days of the notification, the customer is obliged to pay the revised charges for the remaining term of the contract.
8.5 Usage charges payable by you shall be calculated by reference data recorded or logged by EVD or its carrier and not by reference to any data recorded or logged by you.
8.6 EVD reserves the right to charge interest at the rate of 3% above the published Bank of England base rate on a daily basis on any overdue amounts until final payment in full is received, together with any solicitors costs and disbursements on the indemnity losses involved in enforcing payment, whether before or after judgment.
8.7 You will be invoiced by EVD at the billing address specified by you. Payment shall be made by direct debit (unless otherwise agreed in writing). Receipt of payment by EVD will be deemed the only valid discharge of all debts.
8.8 EVD reserve the right to charge a fee of up to £50 for non direct debit payments, or for cancelled Direct Debit Mandates.
8.9 Where a Direct Debit Mandate is cancelled or an indemnity claim is lodged, EVD reserve the right to suspend services immediately, pending payment of all outstanding invoices, termination charges, and any anticipated charges which may be accrued during the contracted minimum term or notice period.
8.10 Where EVD makes a supply to you and value added (or similar) tax is payable in respect of such supply you shall pay on demand, supported by a value added (or similar) tax invoice the amount of value added (or similar) tax so payable.
8.11 Payment of all sums due from you shall be made without any set-off, cross claims, or deduction whatsoever and howsoever arising.
8.12 For the avoidance of doubt, you shall be liable for all and any charges payable to EVD or any third party arising out of use of the Services.
8.13 Failure to pay by the due date is considered a serious breach of the Agreement (see clause 4)
8.14 EVD reserve the right to request the payment on demand of any outstanding sums, or anticipated charges & to immediately suspend or terminate any & all services in the event of non payment of an invoice.
9.1 EVD nor any authorized representatives or agents are under any liability to you or any third party in respect of any injury, loss, damage or expense of whatever nature, directly or indirectly arising from any defect in or failure of the services to operate in the way you expect or anticipate and whether in contract or tort of otherwise and whether in respect of loss of any business contracts, actions and claims at law, anticipated savings or profits, claims for interest or otherwise.
9.2 EVD shall not be responsible for any loss or damage which you may suffer resulting from any cause whatsoever beyond EVD ’s actual control, nor has any person not directly employed by EVD any authority to make any representations as to quality to fitness for purpose of the services unless EVD shall have informed you in writing, signed by a Company Director, that such person has such authority.
9.3 EVD shall not be liable to the subscriber for any delay in either providing a Connection Date to the Subscriber or another reason for delay in connection.
9.4 In the event The Services fail to operate and call or data traffic is routed over an alternative carrier, EVD shall not in any circumstances be liable for that carriers charges.
9.5 The Subscriber shall indemnify EVD against all liabilities, claims, damages, losses and expenses arising from the use of the services in breach of this Agreement.
9.6 Statutory Rights not excluded. If Statute has the effect of modifying the effects of any other terms of this clause then in so far as may be practicable the same shall continue in full.
9.7 In the event that the customer becomes insolvent, all charges for the term of the contract become immediately due and payable.
- Other Terms
10.1 Failure by either party to exercise or enforce any right shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any other occasion.
10.2 For operational reasons EVD may vary the technical specification of The Services and after variation The Services so varied shall constitute the services EVD is obliged under the contract to render to you.
10.3 You must indemnify EVD against any costs, claims or proceedings arising from the use, by you of The Services where such costs, claims or proceedings are brought or threatened against EVD by any other party.
10.4 Any notice, invoice or other document which may be given by EVD shall be deemed to have been duly given if left at or sent by post to an address notified to EVD in writing by you as an address which notices, invoices or other documents may be sent or your usual or last known place of abode or business; or if sent by facsimile to your last known facsimile number or if by e-mail to your last known e-mail address.
10.5 EVD ’s address for services of any such notices by you under this Agreement shall be the correspondence address as is shown on the last invoice rendered or such address as EVD may prescribe for that purpose.
10.6 This Agreement shall be governed by and construed and interpreted in accordance with English law, and the parties hereby agree to submit to the exclusive jurisdiction of the English Courts.
11.1 EVD may vary the terms and conditions of the Agreement by providing a minimum of twenty eight days notice.
11.2 Terms and Conditions in force will be published on the EVD website at www.easternvoicedata.co.uk
11.3 Where EVD provides notice of a date the variation of the terms and conditions is applicable from, and the customer continues to utilise the Service after the variation date, the customer will be deemed to have accepted the revised terms and conditions and these will form the applicable terms and conditions of the Service Agreement for the remaining term of the Agreement.
11.4 The customer agrees any terms and conditions cannot be modified by their own terms and conditions of business without the prior written consent of a Director of EVD .
12.1 EVD may assign or delegate the rights under this Agreement
12.2 The Customer may only assign its rights or obligations under this Agreement with the prior written consent of EVD.
- Data Protection/Confidentiality
13.1 EVD complies with its obligations of the Data Protection Act 1998. EVD will utilise any personal or sensitive personal data obtained for the purposes of establishing and administering the customer, enabling EVD’s Service Providers, authorised agents and representatives to supply the service(s), and for invoicing and marketing purposes
13.2 For the purposes of this clause personal or sensitive data shall have the meanings given to them by the provisions of the data protection act 1998