Terms and Conditions
The Customer’s attention is particularly drawn to the following: clauses 4.6, 5.3, 6.3, and 7.3 (Contract Extended Term); clauses 8.2 and 8.6 (Unauthorised or Fraudulent Use of Services); and clause 14 (Limitation on Start Communications’ Liability).
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Carrier: the relevant third party telecommunications operator or network service provider.
Charges: the applicable charges payable by the Service Customer for the supply of any Services and/or Product in accordance with clause 9.
Commencement Date: the date on which Start Communications shall start to provide the Service which shall mean in the case of:
(a) Maintenance Services the Installation Date or where Start Communications has not contracted with the client to install Product in connection with the Maintenance Services the date specified as the Commencement Date for the Maintenance Services;
(b) Fixed Network Services the Handover Date in respect of those Fixed Network Services;
(c) Data Services the relevant Handover Date in respect of those Data Services; and
(d) Mobile Services the Handover Date in respect of those Mobile Services.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.7.
Connection Date: means in the case of the provision of Data Services the date when the Carrier commences the provisioning of Data Services to the Customer on behalf of Start Communications.
Contract: the contract between Start Communications and the Service Customer for the supply of any Services and/or goods in accordance with these Conditions, the Services Order Form and any Service Specific Conditions.
Contract Date: the date on which a Contract between the Service Customer and Start Communications is formed and comes into existence as determined pursuant to the provisions of clause 2.2.
Data Services: the data services to be provided by Start Communications to the Service Customer as described in the Services Order Form, together with such other data services that Start Communications agrees to supply to the Service Customer from time to time.
Data Services Contract: where applicable, the Contract for the supply of Data Services.
Delivery: has the meaning given to in clause 4.2.
Estimated Installation Date: the date on which Start Communications estimates that the Product will be installed, as advised by Start Communications to the Service Customer.
Extended Term: in relation to:
(a) a Contract for the supply of Fixed Network Services has the meaning given to it in clause 5.3 or if applicable, clause 5.4;
(b) a Contract for the supply of Data Services has the meaning given to it in clause 6.3 or if applicable, clause 6.4; and
(c) a Contract for the supply of Maintenance Services has the meaning given to it in clause 4.6 or if applicable, clause 4.7.
Fixed Network Services: the voice services to be provided by Start Communications to the Service Customer as specified in the Services Order Form.
Fixed Network Services Contract: where applicable, the Contract for the supply of Fixed Network Services.
Handover Date: means
(a) in the case of the provision of Fixed Network Services the date when the Fixed Network Services are available for use by the Service Customer with Start Communications as the supplier of the Fixed Network Services.
(b) in the case of Data Services, the date when the Data Services are available for use by the Service Customer with Start Communications as the supplier of the Data Services.
(c) in the case of Mobile Services, the date when the Mobile Services are available for use by the Service Customer with Start Communications as the supplier of the Mobile Services.
Hosted Licence: a licence granted by Start Communications to the Service Customer for a hosted product for use in connection with Fixed Network Services.
Installation Date: the date on which the Product is installed.
Installation Services: the services relating to the installation by Start Communications (or its duly authorised agents) of the Product (where applicable).
Maintenance Services: the maintenance services to be provided by Start Communications to the Service Customer as described in the Services Order Form, together with such other maintenance services that Start Communications agrees to supply to the Service Customer from time to time.
Maintenance Services Contract: where applicable, the Contract for the supply of Maintenance Services.
Minimum Term: the minimum contract term that applies to the Maintenance Services, the Fixed Network Services, the Data Services and/or the Mobile Services as the case may be shall unless a different minimum term is specified for any such Service in the Service Specific Conditions section of the Services Order Form be the period of five years commencing on the Commencement Date.
Mobile Services: the mobile services to be provided by Start Communications to the Service Customer as specified in the Services Order.
Mobile Services Contract: where applicable, the Contract for the supply of Mobile Services.
Notes Section: the section of the Services Order Form marked “Additional Information / Tariff Details / Service Specific Conditions”.
Product: the Product as set out in the Services Order Form.
OFCOM: the Office of Communications or any equivalent successor body.
Order: the Service Customer’s order for Services as set out in the Services Order Form; such Order being subject to these Terms and Conditions relating to maintenance and additional services.
Services Customer: the person or firm specified as such in the Services Order Form who contracts to purchase Services from Start Communications.
Service Customer Default: has the meaning given to it in clause 8.3.
Services Order Form: the document which sets out amongst other things the Services which the Service Customer would like Start Communications to provide to it and certain details in respect thereof including when read in conjunction with these Conditions the basis on which the charges for providing the Services will be calculated. The Services Order Form shall be prepared by Start Communications and sent to the Service Customer for signature by or on behalf of the Service Customer and returned to Start Communications. The Services Order Form may be prepared, sent, signed or returned either electronically or physically.
Service or Services: the services to be supplied by Start Communications to the Service Customer, as itemised in the Services Order Form being any or all of the Installation Services, Maintenance Services, Fixed Network Services, Data Services and/or Mobile Services, as the case may be, and Service shall be construed accordingly, but shall exclude the provision of DNS servers and mail servers.
Service Specific Conditions: any policies, terms or procedures that apply to and shall be incorporated into the Contract, as specified in the Service Specific Conditions section of the Services Order Form.
Site: the Service Customer’s place of business as specified in the Services Order Form where any Services are to be provided or carried out and/or (where applicable) Product is to be delivered and any Installation is to take place, as specified in the Services Order Form.
Small Business Service Customer: a Service Customer identified on the Services Order Form as not being a communications provider and who has 10 or fewer individuals working for that Service Customer (whether as employees, volunteers or otherwise).
Specification: the description or specification of the relevant Services and/or Product provided in writing by Start Communications to the Service Customer as set out in the Services Order Form.
Start Communication: Start Communications Group Limited registered in England and Wales with company number 12422490 of Archer House, Britland Estate, Northbourne Road, Eastbourne, East Sussex, BN22 8PW.
Start Communications Service Customer Transfer Preference Policy: the policy as set out at www.startcomms.co.uk/customer-transfer-preference-policy as varied from time to time.
Tariff: the standard tariff as set out at www.startcomms.co.uk/standard-tariffs and as varied in the Tariff Details of the Services Order Form for Fixed Network Services and the Data Services as attached to the Services Order Form and as amended or notified to the Service Customer from time to time.
VOIP: Voice Over Internet Protocol being the use of the internet as the transmission medium for telephone calls by digital means (rather than the traditional telephone system based on copper wires carrying analogue data).
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes e-mails but excludes faxes.
2. BASIS OF CONTRACT
2.1 The sending of the Services Order Form by Start Communications to the Service Customer constitutes an offer by Start Communications to the Service Customer to provide services and/or Product in accordance with these conditions, the Order and any service specific conditions (“the Offer”). The Offer may be withdrawn at any point by Start Communications prior to it being accepted by the Service Customer.
2.2 The Offer shall be accepted and the Contract shall be formed and come into existence at the point when Start Communications receives the Services Order Form, either electronically or physically, duly signed (either electronically or physically) by or on behalf of the Service Customer at which point and on which date the Contract shall come into existence (subject where applicable to clauses 4.1, 5.6, 6.6 and 7.5). If Start Communications has not received the Services Order Form duly signed for or on behalf of the Service Customer within 12 months from the date on which it is sent to by Start Communications to the Service Customer the offer to contract with the Service Customer shall be deemed to have been withdrawn unless otherwise agreed between Start Communications and the Service Customer.
2.3 The Contract constitutes the entire agreement between the parties. The Service Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Start Communications which is not set out in the Services Order Form, the Service Specific Conditions or the terms (or incorporated by reference in any of them). For the avoidance of doubt this Contract, with the exception of collecting money due to Start Communications as agent via a third party (if applicable), is independent and separate to the Terms and Conditions of the Hire Agreement relating to the hire of Product (if any).
2.4 Any samples, drawings, descriptive matter or advertising issued by Start Communications, and any descriptions or illustrations contained in Start Communications’ catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract nor have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Service Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. In the event of any conflict between these Conditions and any Service Specific Conditions, the Service Specific Conditions shall prevail. In the event of any conflict between these Conditions, any Service Specific Conditions and the Services Order Form, the Services Order Form will prevail in relation to that Service.
2.6 Any quotation given by Start Communications shall not constitute another, and is only valid for a period of 20 Business Days from its date of issue.
2.7 The Service Customer warrants to Start Communications that it is entering into the Contract for the purpose of its business, trade or profession and not as a consumer.
2.8 Except for Installation Services that shall form part of a Contract for the supply of Product, each order for Maintenance Services, Data Services or Fixed Network Services shall be deemed to be a separate Contract (irrespective of whether more than one or all of them are included on the same Services Order Form).
2.9 To the extent that there is any failure or delay by Start Communications to supply one of the Services, that shall not entitle the Service Customer to terminate the Contract for the supply of any other Service or Services as the case may be (if any).
3. SUPPLY OF SERVICES
3.1 Start Communications shall supply the Services to the Service Customer in accordance with the Contract in all material respects. In the event that the Services Order Form specifies:
(a) the supply by Start Communications to the Service Customer of Product and Installation Services and/or Maintenance Services, clause 4 of these Conditions shall also apply to the Contract;
(b) the supply by Start Communications to the Service Customer of Fixed Network Services, clause 5 of these Conditions shall also apply to the Contract;
(c) the supply by Start Communications to the Service Customer of Data Services, clause 6 of these Conditions shall also apply to the Contract;
3.2 Start Communications shall use all reasonable endeavours to deliver any Services on or by any date or dates specified in the Services Order Form, but any such dates shall be estimates or for guidance only and time shall not be of the essence for the performance of the Services.
3.3 Start Communications shall have the right to make any changes to any Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the relevant Services. Start Communications shall notify the Service Customer of any such change.
3.4 Start Communications warrants to the Service Customer that the relevant Services will be provided using reasonable care and skill, subject to clauses 4, 5, 6 and 7 of these Conditions.
4. TERMS APPLICABLE TO PRODUCT, INSTALLATION SERVICES AND MAINTENANCE SERVICE
4.1 Any Order for Product is conditional on the availability of such Product prior to the Estimated Installation Date. Start Communications shall use reasonable endeavours to deliver the Product and supply the Installation Services with reasonable care and skill in accordance with the estimated period for delivery and installation. Installation within such period is not guaranteed and time shall not be of the essence.
4.2 Delivery of Product shall be deemed to take place when the relevant Product arrives at the Service Customer’s Site (prior to unloading or unpacking) as specified in the Services Order Form (Delivery) (and Delivered shall be construed accordingly). In relation to Delivery of any Product:
(a) the Service Customer shall be responsible for checking that all details specified in the Services Order Form are correct;
(b) if the Service Customer fails to take Delivery of any Product within 10 Business Days of Start Communications notifying the Service Customer that the Product is capable of being delivered, the Product shall be deemed to have been Delivered in accordance with the Contract and the Product shall be at the risk of the Service Customer and thereafter clause shall apply to the Product;
(c) if any Product is to be Delivered in instalments, any delay in the Delivery of one instalment shall not entitle the Service Customer to reject the other instalments or to terminate the Contract; and
(d) the risk in any Product shall pass to the Service Customer on Delivery (or deemed Delivery in accordance with clause 4.2(b)) and the Service Customer shall be responsible for insuring the Product from that time.
4.3 If the Service Customer is in breach of the Contract the Service Customer shall return the Product at the Service Customer’s cost to Start Communications immediately on request and permit Start Communications or its agents to enter any premises of the Service Customer or of any third party where the Product is located in the Services Order Form to recover it.
4.4 Subject to clause 2.2, supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for one month (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
4.5 If for any reason clause 4.4 is deemed to be unreasonable and unenforceable by way of a final court judgment then this clause 4.5 shall apply. Subject to clause 2.2, supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for one month (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
4.6 The Maintenance Services shall only be supplied by Start Communications in relation to the Product and to any other Product agreed by Start Communications in writing from time to time. Unless agreed otherwise in writing by Start Communications, Start Communications shall supply the Maintenance Services in accordance with the Service Level Agreement (a copy of which is available at www.startcomms.co.uk/service-level-agreement) as amended from time to time.
4.7 The Maintenance Services shall not include or be deemed to include repair or maintenance to:
(a) Product that is faulty or has failed due (in whole or in part) to or caused by:
(i) fair wear and tear;
(ii) the Service Customer’s (including its agents or workers) acts, operating errors, omissions or default;
(iii) failure in air-conditioning or fluctuations in electrical power;
(iv) any failure of Product or software attached to or integrated to the Product where such Product or software was not supplied by Start Communications;
(v) vandalism, fire, theft, water or lightening;
(vi) any defect or error in software loaded on to the Product;
(vii) any defect or fault in connection with services supplied to Start Communications by any Carrier;
(viii) failure by the Service Customer (including its agents or workers) to adequately maintain any Product or operate it in accordance with the manufacturer’s specifications, guidelines or recommendations; or
(ix) any attempt by the Service Customer or any third party other than Start Communications or its duly authorised agents to repair, reconfigure, reprogram or otherwise alter the Product or any Product or cabling attached to it.
(b) ancillary items, including but not limited to, answer-phones, analogue and digital phones or devices, call loggers, payphones, computers, servers, uninterruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, any cabling and/ or consumables unless otherwise agreed in writing;
(c) the maintenance or repair of any extension wiring, any Product not at the Site, or of anything other than the Product; or
(d) the reprogramming of the Product to provide improved or modified services or facilities.
4.8 In the event that Start Communications carries out Maintenance Services to any Product which has, in its reasonable opinion failed or become faulty due (wholly or partially) to any of the circumstances described in clause 4.7, Start Communications shall be entitled to charge additional fees for such services calculated in accordance with clause 8.5.
4.9 In carrying out the Maintenance Services Start Communications shall not (subject to clause 14) be liable for the loss of any data or information stored on the Product or any other Product that may be affected by the carrying out of the Maintenance Services and the Service Customer shall ensure that appropriate backups of all data and information are maintained.
4.10 In rectifying any fault to Product it may be necessary for Start Communications to reset the Product’s software. In such cases, Start Communications shall not be responsible for resetting or reloading Product programming and user profiles.
4.11 The Maintenance Services are limited to the provision and repair of the Product by Start Communications on a like for like basis, which may include Start Communications supplying reconditioned parts for Product and reconditioned Product. Any Product that is removed or replaced and any parts that are removed or installed in Product in the carrying out of the Maintenance Services shall become or shall remain (as the case may be) the property of Start Communications.
4.12 Subject to clause 14, Start Communications shall not be liable for any delay in the performance of the Maintenance Services where such delay is attributable to no or poor or delayed availability of spare parts for any item of Product.
4.13 If the Service Customer terminates a Contract (in whole or in part) for Maintenance Services before the end of any applicable Minimum Term or Extended Term, the Service Customer shall pay to Start Communications all charges that would have accrued during the period from the expiry of the Service Customer’s notice to terminate (or where no notice is given the date of indication by the Service Customer of an intention to no longer be bound by the Contract (in whole or in part)) to the end of the Minimum Term or Extended Term (as the case may be).
5. TERMS APPLICABLE TO FIXED NETWORK SERVICES
5.1 Subject to clause 2.2 and clause 5.5, the supply of the Fixed Network Services shall commence on the Commencement Date and shall continue for the Minimum Term.
5.2 If the Commencement Date for the provision of Fixed Network Services has not occurred prior to the first anniversary of the Contract Date for the Fixed Network Services then the Contract in respect thereof shall be deemed to have terminated unless otherwise agreed between Start Communications and the Service Customer. The rights of the parties that have accrued prior to such termination shall not be affected by such termination.
5.3 Subject to clause 5.5, the Fixed Network Services Contract shall automatically extend for one month (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term to terminate the Fixed Network Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
5.4 In the event that 5.3 is deemed to be unreasonable and unenforceable by way of a final court judgment then this clause 5.4 shall apply. Subject to clause 5.5, the Fixed Network Services Contract shall automatically extend for one month (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term to terminate the Fixed Network Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
5.5 Where the Service Customer is a Small Business Service Customer, the Service Customer may terminate the Fixed Network Services Contract by giving not less than 90 days’ notice in writing to Start Communications, such notice to expire no earlier than the end of the Minimum Term.
5.6 The provision of any Fixed Network Services by Start Communications under a Fixed Network Services Contract is conditional on:
(a) Start Communications carrying out such surveys as it deems necessary to satisfy itself that it is possible for it to supply the Fixed Network Services;
(b) the installation of the lines over which the Fixed Network Services are to be provided and such lines being fully operational; and
(c) the Service Customer providing to Start Communications to its satisfaction accurate information and data to enable Start Communications to calculate the Charges and to carry out a site survey.
5.7 Start Communications warrants to the Service Customer that Fixed Network Services will be provided using reasonable care and skill. The Service Customer agrees that Start Communications cannot guarantee that the Fixed Network Services will work without interruption and will be fault or error free. Any interruption, fault or error with the Fixed Network Services must be notified to Start Communications in accordance with clause 5.8.
5.8 The Service Customer shall notify Start Communications of any interruption, fault or error with the Fixed Network Services in accordance with Start Communications’ Service Level Agreement (available at www.startcomms.co.uk/service-level-agreement) as amended from time to time. Start Communications shall use reasonable endeavours to correct or cure any interruption, fault or error with the Fixed Network Services in accordance with Start Communications’ Service Level Agreement, save that time shall not be of the essence.
5.9 Notwithstanding any other provision of these Conditions, Start Communications shall not be liable to the Service Customer in contract, tort (including negligence) or otherwise for any acts or omissions of Carriers that may (wholly or partially) cause, impact or result in any interruption, fault error with or withdrawal of (temporarily or permanently) the Fixed Network Services.
5.10 All and any telephone numbers allocated to the Service Customer in connection with the Fixed Network Services may be withdrawn by OFCOM and accordingly Start Communications does not warrant or represent that such telephone numbers can be provided to the Service Customer. The Service Customer acknowledges and agrees that any telephone numbers allocated to it are allocated on the basis of a licence and the Service Customer agrees not to sell or transfer any telephone number provided to it (except where the Service Customer has a right to port that telephone number).
5.11 In relation to the use of the Fixed Network Services the Service Customer agrees:
(a) to ensure that the Fixed Network Services are not used to make offensive, indecent, menacing, nuisance or hoax calls;
(b) not to use the Fixed Network Services in any way that may, in Start Communications’ reasonable opinion, damage its reputation;
(c) not to contravene any laws, regulations or codes of conduct that may, from time to time, be applicable to the use or supply of the Fixed Network Services;
(d) to implement and maintain appropriate security and control over its networks, Product and business to prevent fraud and to prevent calls being generated by third parties;
(e) to adequately maintain all Product utilised in connection with the Fixed Network Services and ensure its compatibility in terms of technical specification;
(f) not to use nor permit the Fixed Network Services to be used in any way that would constitute or contribute to the commission of any crime, tort, fraud or other unlawful activity;
(g) not to allow any unauthorised use of the Fixed Network Services and to take all reasonable security measures to prevent such use;
(h) not to sell or resell the Fixed Network Services in whole or in part;
(i) not to misuse the Fixed Network Services in any way, including without limitation causing the volume of calls made to the telephone numbers allocated to the Service Customer to significantly exceed that which can be answered by the Service Customer where this would cause congestion to a network;
(j) that Start Communications may publish details of the Service Customer’s name, address and telephone number(s) in the Directory Enquiries Service, unless the Service Customer expressly confirms to Start Communications in writing that it would like a special entry to be made, for which Start Communications may make an additional charge;
(k) that to the extent the Fixed Network Services contain VOIP services, clause 6.12 shall also apply save that references in that clause to Data Services shall be deemed to be references to Fixed Network Services;
(l) in order to protect the Service Customer against unauthorised transfer of Fixed Network Services, in the event that the Service Customer fails to contact Start Communications not Less than 48 hours prior to any transfer date in accordance with Start Communications’ Customer Transfer Preference Policy, Start Communications may cancel any order made with a third party supplier;
5.12 Any Product installed or supplied by Start Communications to the Service Customer in connection with the Fixed Network Services (including but not limited to handsets) shall, except for Product purchased by the Service Customer under clause 4, at all times remain the property of Start Communications. The Service Customer shall return such Product to Start Communications immediately on request and shall be liable for costs, losses, damages and expenses incurred by Start Communications for the repair, recovery and replacement of such Product.
5.13 Upon termination of the Fixed Network Services Contract (for whatever reason), the Service Customer shall return any handsets installed or supplied by Start Communications to the Service Customer in connection with the Fixed Network Services at the Service Customer’s cost. If such handsets are not returned within seven days following the termination of the Fixed Network Services Contract, Start Communications reserves the right to charge the Service Customer a fee in respect of each handset, as specified in the Tariff.
5.14 Start Communications shall be entitled to make additional charges in the event that the Service Customer supplies inaccurate or misleading information to Start Communications or if the results of any survey reveal additional construction work is required in order for Start Communications to supply the relevant Fixed Network Services.
5.15 Where the transfer of lines and services of another supplier occurs, then the provision of any and all relevant existing services supplied to the Service Customer by such supplier will automatically transfer to Start Communications and will be charged for by Start Communications in accordance with the Tariff.
5.16 The Service Customer acknowledges and accepts that it is liable for any charges (including without limitation any early termination charges) made by third party suppliers for any transfer of lines and services or otherwise, unless it is clearly stated on the Services Order Form that Start Communications will pay for such charges in which case Start Communications will pay for such charges but limited to those specifically as set out on the Services Order Form.
5.17 The Service Customer accepts and acknowledges that Start Communications will prior to the Handover Date have spent a significant amount of time and incurred expense in preparation for the provision of the Fixed Network Services to the Service Customer. In the event that the Service Customer terminates the Contract for Fixed Network Services prior to the Handover Date it shall pay to Start Communications £500 plus vat. This clause 5.17 shall not apply where the Service Customer is a Small Business Service Customer. Where the Service Customer is a Small Business Service Customer, the Service Customer may terminate a Contract for Fixed Network Services at any time prior to commencement of the supply of such Services.
5.18 The following provisions of this clause 5.18 shall apply in the event that after the Handover Date the Service Customer terminates the Contract for Fixed Network Services in breach of contract prior to the expiry of the Minimum Term or the Extended Terms as the case may be:
(a) In this clause 5.18 Remainder of the Term means (where the Service Customer terminates or is deemed to have terminated the Contract in breach of contract) the period that the Contract would have had left to run if the Service Customer had instead terminated it at the earliest following opportunity without being in breach of contract.
(b) Save where the Service Customer has contracted for the supply of line rental only, a Service Customer agrees that it shall not on lines contracted to be billed by Start Communications use those lines for calls charged for by another supplier. If in breach of this clause the Service Customer does use lines supplied by Start Communications for the carriage of calls charged for by another supplier the Service Customer shall be deemed to be in breach of the Contract for the supply of Fixed Network Services and at Start Communications’ option the Service Customer shall be deemed to have terminated the Contract for Fixed Network Services in breach of contract and the provisions of this clause 5.18 shall apply; or
(c) If in breach of contract the Service Customer terminates a Contract for Fixed Network Services before the end of the Minimum Term or where applicable the end of an Extended Term (as the case may be), the Service Customer shall be liable to pay to Start Communications an amount calculated in the following manner:
(i) (by reference to line rental) the sum that it would have paid to Start Communications for the rental of the lines for the Remainder of the Term calculated at the rate then applying at the time of termination; plus
(ii) (by reference to call charges) either the sum of £500 or if greater the average of the monthly charges for calls incurred by the Service Customer for the three whole months prior to the termination of the Contract multiplied by the period of the Remainder of the Term (expressed in months)
5.19 The Service Customer agrees not to use in connection with the Fixed Network Service provided by Start Communications any telephone number that the Service Customer does not have the legitimate right to use. In this regard the Service Customer shall not “present out” any telephone number that it does not have the right to use; such as a telephone number of a competitor.
5.20 Where Start Communications grants to the Service Customer a Hosted Licence it shall terminate at the point when Start Communications ceases to provide to the Service Customer the Fixed Network Services in respect of which the Hosted Licence was granted and the Hosted Licence and all rights in the Hosted Licence shall revert to and be owned in their entirety by Start Communications.
6. TERMS APPLICABLE TO DATA SERVICES
6.1 Subject to clause 6.6, the supply of the Data Services shall commence on the Commencement Date and shall continue for the Minimum Term. If stated as such in the Services Order Form.
6.2 Subject to the remaining provisions of this clause if the Commencement Date for the provision of Data Services has not occurred prior to the first anniversary of the Contract Date for the Data Services then the Contract in respect thereof shall be deemed to have terminated. Start Communications may by giving written notice to the Service Customer extend the period referred to in this clause by six months if the reason why the Commencement Date has not occurred is outside of the control of Start Communications. Further, the period may be extended in by such period as Start Communications and the Service Customer agree. The rights of the parties that have accrued prior to such termination shall not be affected by such termination.
6.3 Subject to clause 6.5 the Data Services Contract shall automatically extend for one month (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Data Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
6.4 If for any reason clause 6.3 is deemed to be unreasonable and unenforceable by way of a final court judgment, then this clause 6.4 shall apply. Subject to clause 6.5 the Data Services Contract shall automatically extend for one month (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Data Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
6.5 Where the Service Customer is a Small Business Service Customer, the Service Customer may terminate the Data Services Contract by giving not less than 90 days’ notice in writing to Start Communications, such notice to expire no earlier than the end of the Minimum Term.
6.6 The provision of any Data Services by Start Communications under a Data Services Contract is conditional on:
(a) Start Communications carrying out such surveys as it considers necessary to satisfy itself that it is feasible for it to supply the Data Services and Start Communications being satisfied with the results of such surveys;
(b) Start Communications not being prevented by circumstances and factors outside of its control from being able to supply the Data Services. Examples of such circumstance and factors include (without limit) the infrastructure not being able to support the Data Services, the Service Customer not obtaining the necessary permission from third parties such as a landlord to install the necessary infrastructure, or a public body such as a local authority or highways authority withholding consent to the installation of the infrastructure where such consent is required;
(c) the installation of the lines over which the Data Services are to be provided and such lines being fully operational; and
(d) the Service Customer providing to Start Communications’ satisfaction accurate information and data to enable Start Communications to calculate the Charges and to carry out or commission a site survey.
6.7 Start Communications warrants to the Service Customer that Data Services will be provided using reasonable care and skill. The Service Customer agrees that Start Communications cannot guarantee that the Data Services will work without interruption and will be fault or error free. Any interruption, fault or error with the Data Services must be notified to Start Communications in accordance with clause 6.8.
6.8 The Service Customer shall notify Start Communications of any interruption, fault or error with the Data Services in accordance with Start Communications’ Service Level Agreement (available at www.startcomms.co.uk/service-level-agreement) as amended from time to time. Start Communications shall use reasonable endeavours to correct or cure any interruption, fault or error with the Data Services in accordance with Start Communications’ Service Level Agreement, save that time shall not be of the essence.
6.9 Notwithstanding any other provision of these Conditions, Start Communications shall not be liable to the Service Customer in contract, tort (including negligence) or otherwise for any acts or omissions of suppliers that may (wholly or partially) cause, impact or result in any interruption, fault or error with, or withdrawal of (temporarily or permanently), the Data Services.
6.10 In relation to the use of the Data Services the Service Customer agrees and where appropriate accepts:
(a) to comply with the obligations in clauses 5.11(a) to 5.11(i) (inclusive) as if references in those clauses to Fixed Network Services were references to Data Services;
(b) not to misuse the Data Services in any way, including sending or receiving data in such a manner or volume so as to exceed agreed usage limits or so as to adversely affect the network, Start Communications or its other Service Customers;
(c) that the speed of any Data Services or connection depends on a number of factors beyond Start Communications’ control (including external factors and physical factors) (such as local availability, the distance from the exchange and peak traffic volume) and that Start Communications does not warrant or represent that the Service Customer’s connection(s) will produce the maximum advertised speed;
(d) that except where stated otherwise in the Services Order Form, the Data Services do not include the supply by Start Communications of lines, modems and other Product that might be required by the Service Customer to utilise the Services nor advice on these unless Start Communications is specifically engaged to do so under a separate contract which shall be in addition to the provision of Data Services under the Data Services Contract;
(e) to comply with Start Communications’ Fair Use Policy (available at www.startcomms.co.uk/fair-usage-policy) as amended from time to time;
(f) provide suitable space and environment at the Site for the Product used in the provision of the Data Services (such as sufficient cooled space on a rack) and to do so in a timely manner. Compliance by the Service Customer with this clause shall be entirely at the Service Customers cost.
(g) In respect of any router supplied by or on behalf of Start Communications for a managed internet Ethernet circuit unless otherwise specifically agreed with Start Communications:
(i) the router will be provided in a routed IP configuration and its sole purpose is to create an interface for the Service Customer to plug Product into and it is not to be used for any other purpose;
(ii) the router is the demarcation point at which the responsibility for the provision of Data Services by Start Communications ends;
(iii) access to the command interface of the router (which would be required to configure the router) will not be provided to the Service Customer, nor will other functions that the router may be capable be enabled such as wireless connectivity and firewall functionality;
(iv) Start Communications is not responsible for configuration of the router other than to an IP configuration; and
(v) Start Communications shall not be responsible for installing firewalls or plugging in the router and if the Service Customer requires firewalls the Service Customer shall be responsible for processing their installation.
(h) In respect of a router supplied by or on behalf of Start Communications for an internet broadband service it will be provided in a NAT (Network Address Translation) configuration with DHCP Scope enabled unless otherwise agreed.
6.11 Start Communications is under a duty to all of its Service Customers to preserve network integrity and capacity and avoid degradation. The Service Customer agrees that:
(a) if in Start Communications’ reasonable opinion, the Service Customer’s use of Data Services is adversely affecting, or may adversely affect, integrity and capacity of networks, Start Communications may take such steps as it deems appropriate to manage the Service Customer’s Data Services;
(b) Start Communications and/or the Carrier may take such steps as it deems necessary to stop emails that appear to be bulk emails or which appear to be of an unsolicited nature from entering networks and this may include blocking access to or delivery of any such emails; and
(c) Start Communications and/or the Carrier may operate virus screen technology which may result in the deletion or alteration of emails or their attachments.
6.12 Where the Data Services involve the supply of VOIP services, then it is agreed that the following shall apply and the Service Customer accepts that:
(a) the Service Customer’s ability to make emergency calls and their priority treatment cannot be guaranteed and that any suspension or interruption of the VOIP service may result in the Service Customer being unable to make emergency calls;
(b) Service Customers are advised to maintain the ability to make telephone calls other than through a VOIP system, such as by maintaining a mobile phone line;
(c) the Service Customer acknowledges that the VOIP service may sometimes be limited, unavailable or interrupted due to events beyond Start Communications’ control, such as those specified in clause 17.1 (force majeure)
6.13 Other than Product purchased by the Service Customer, any equipment or Product installed or supplied by Start Communications to the Service Customer in connection with the Data Services (including but not limited to routers) shall at all times remain the property of Start Communications. The Service Customer shall return such equipment or Product to Start Communications immediately on request or cessation of the provision of Data Services and the Service Customer shall be liable for all costs, losses, damages and expenses incurred by Start Communications for the repair, recovery and replacement of such equipment or Product (if applicable).
6.14 Upon termination of the Data Services Contract (for whatever reason), the Service Customer shall return any routers installed or supplied by Start Communications to the Service Customer in connection with the Data Services at the Service Customer’s cost. If such routers are not returned within seven days following the termination of the Data Services Contract, Start Communications reserves the right to charge the Service Customer a fee in respect of each router, as specified in the Tariff.
6.15 Where the Service Customer wishes to transfer the provision of any lines or services from another supplier to Start Communications, the Service Customer shall:
(a) provide to Start Communications such accurate information as is required by Start Communications to enable the migration from the current supplier; and
(b) be responsible for all costs, charges and penalties that may arise as a result of or in connection with such transfer.
6.16 The Service Customer acknowledges and accepts that it is liable for all cancellation or termination payments and charges (including without limitation any early termination charges) levied by a previous supplier for the transfer of the provision of services and lines to Start Communications unless it is stated on the Services Order Form that Start Communications will be responsible for the payment of such Charges.
6.17 The Service Customer accepts and acknowledges that Start Communications will prior to the Connection Date have spent a significant amount of time and incurred expense in preparation for the provision of the Data Services to the Service Customer. In the event that the Service Customer terminates the Contract prior to the Connection Date it shall pay to Start Communications:
(a) £500 plus vat in respect of the time spent by Start Communications in preparation for the provision of the Data Services to the Service Customer; and
(b) an amount equal to the direct expenses (plus vat) incurred by Start Communications to its supplier(s) in the preparation of Data Services to the Service Customer limited to £2,000. This clause 6.17 shall not apply where the Service Customer is a Small Business Service Customer.
6.18 Where the Service Customer is a Small Business Service Customer, the Service Customer may terminate a Contract for Data Services at any time prior to commencement of the supply of such Data Services.
6.19 The following provisions of this clause 6.19 shall apply in the event that after the Connection Date the Service Customer terminates the Contract for Data Services in breach of contract prior to the expiry of the Minimum Term or the Extended Terms as the case may be:
(a) In this clause 6.19 Remainder of the Term means (where the Service Customer terminates or is deemed to have terminated the Contract in breach of contract) the period that the Contract would have had left to run if the Service Customer had instead terminated it at the earliest following opportunity without being in breach of contract. Where the Service Customer terminates the Contract for Data Services in breach of contract after the Connection Date but before the Handover Date then the Remainder of the Term shall be deemed to have commenced on the Connection Date.
(b) The Service Customer acknowledges and accepts that to enable Start Communications to provide the Data Services to the Service Customer, Start Communications will enter into a contract for a fixed term with its supplier at the Connection Date. As is common with such contracts Start Communications may remain liable to its supplier whether or not the Contract for Data Services with the Service Customer terminates prior to the end of the Minimum Term or the Extended Term as the case may be.
(c) In the event that the Service Customer is in breach of contract the Contract for Data Services otherwise than in accordance with clause 6.3 or 6.4 if applicable (and/or 6.5 where the Service Customer is a Small Business Service Customer) before the end of the Minimum Term or where applicable the end of an Extended Term (as the case may be) the Service Customer shall pay to Start Communications (subject to the provisions of clause 6.19(d) as liquidated damages an amount equal to the sum that the Service Customer would have been liable to pay to Start Communications for the Remainder of the Term for the Data Services (calculated at the rate which applied at the time of termination) less any reduction that may apply pursuant to the provisions of clause 6.19(d) below. Where such termination occurs after the Connection Date but before the Commencement Date then the rate shall be the rate that would have applied at the Commencement Date had the Contract not been terminated.
(d) If the provisions of clause 6.19(c) apply and in the event that a supplier used by Start Communications to provide the Data Services to the Service Customer reduces the amount that it charges to Start Communications from that which it is contractually entitled to charge in respect of the Remainder of the Term Start Communications shall advise the Service Customer of the amount of the reduction and that reduction shall be deducted from the amount payable under clause 6.19(c).
7. TERMS APPLICABLE TO MOBILE SERVICES
7.1 For the purpose of the Mobile Services, the following terms shall have the following meanings:
Airtime Provider: the relevant mobile network operator or wireless communications service provider.
Connection: connection to any Airtime Provider’s network.
Hardware Fund: the fund allocated to the Service Customer to allow it to purchase Product in connection with
the Mobile Services.
Retail Mobile Services: the mobile services to be provided by Start Communications to the Customer, where the
Service Customer is directly contracted with an Airtime Provider.
Support Hours: 09:00 to 17:30 (GMT).
Wholesale Mobile Services: the mobile services to be provided by Start Communications to the
Service Customer, where the Service Customer is directly contracted with Start Communications and not an
Airtime Provider.
7.2 Subject to clause 2.2, the supply of the Mobile Services shall commence:
(a) In the case of Wholesale Mobile Services on the Commencement Date and continue for the Minimum Term;
(b) In the case of Retail Mobile Services on the date the contract between the Service Customer and the Airtime Provider is signed by the Service Customer and processed by the Airtime Provider and continue until it expires, is terminated by the Airtime Provider, or the Service Customer is otherwise released from the contract by the Airtime Provider.
7.3 In the case of Wholesale Mobile Services, the Mobile Services Contract shall automatically extend for one month (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Mobile Services Contract at the end of the Initial Period or the relevant Extended Term, as the case maybe.
7.4 If for any reason clause 7.3 is deemed to be unreasonable and unenforceable by way of a final court judgment then this clause 7.4 shall apply. The Mobile Services Contract shall automatically extend for one month (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Mobile Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
7.5 The provision of any Mobile Services by Start Communications under a Mobile Services Contract is conditional on:
(a) the Service Customer providing to Start Communications to its satisfaction accurate information and data to enable Start Communications to provide Mobile Services;
(b) Network coverage; and
(c) Availability of Product.
7.6 Subject to the Service Customer’s payment of the Charges, Start Communications will provide support for the Mobile Services to the Service Customer as follows:
(a) In the case of Wholesale Mobile Services, remote support during Support Hours, unless otherwise agreed between Start Communications and the Service Customer with on-site support being chargeable; or
(b) In the case of Retail Mobile Services, limited support during Support Hours in accordance with the Airtime Provider’s terms.
7.7 Start Communications shall operate and maintain a telephone helpdesk to receive and process any requests for support in respect of the Mobile Services.
7.8 In relation to the use of the Mobile Services the Service Customer agrees:
(a) that any support for the Mobile Services shall be provided by Start Communications remotely, unless otherwise agreed;
(b) to keep their data backed-up and ensure that software updates are maintained; and
(c) to make available such personnel of the Service Customer with appropriate skills, knowledge and authority to assist Start Communications in the diagnosis of faults and the implementation of reasonable instructions intended to rectify or prevent recurrence of faults.
7.9 The Service Customer acknowledges and agrees that:
(a) Start Communications bears no responsibility for and will not be liable for any loss suffered by the Service Customer as a result of any fault that is caused by an error or defect in the network or software;
(b) the sole responsibility of Start Communications in respect of any issues with hardware supplied under or in connection with the Mobile Services shall be to diagnose faults in the hardware. The correction of any faults in the hardware shall be undertaken in accordance with the manufacturer’s warranty;
(c) Start Communications will not be liable for any loss of data, loss of productivity or financial losses incurred or corrupt back-ups of data or back-up procedures, network outages, or errors, failures or defects in the operating system; and
(d) in recognition of the fact that Start Communications may be entitled to receive payments from the Airtime Provider as a result of the Service Customer taking up the Mobile Services, the Service Customer will remain liable to Start Communications and shall not avoid liability to Start Communications if the Airtime Provider releases the Service Customer from its contract for any reason, including (without limitation) if the Service Customer is released due to an error on the part of the Airtime Provider where the Service Customer has signed for 2 years.
7.10 Start Communications warrants to the Service Customer that the Mobile Services will be rendered by personnel with appropriate skills and experience to provide the Mobile Services. The Service Customer agrees that Start Communications cannot guarantee that the Mobile Services will work without interruption or error. Any interruption, fault or error must be notified to Start Communications using the telephone helpdesk referred to in clause 7.7. The warranties provided by Start Communications in clause 3.4 and this clause 7.10 shall be in lieu of and shall operate to exclude any other condition or warranty whether express or implied by law as to the provision of the Mobile Services.
7.11 The Service Customer warrants to Start Communications that, where Start Communications provides the Mobile Services and the Service Customer uses Product it owns or has the benefit of using, the Service Customer either owns such Product or has a valid right to use it, and the Service Customer further warrants that it is the Service Customer’s responsibility to ensure any such Product works and is suitable as is for the Service Customer to receive and/or use the Mobile Services. By way of example and without limitation, the Service Customer must check and ensure that any handset it proposes to use is unlocked and this shall not be the responsibility of Start Communications.
7.12 Notwithstanding any other provision of these Conditions, Start Communications shall not be liable to the Service Customer in contract, tort (including negligence) or otherwise for any acts or omissions of the Airtime Provider that may (wholly or partially) cause, impact or result in any interruption, fault error with or withdrawal of (temporarily or permanently) the Mobile Services.
7.13 The Service Customer will fully indemnify and hold harmless Start Communications against all costs, expenses, liabilities, losses, damages and judgments that Start Communications may incur or be subject to as a result of a breach of clause 7.11.
7.14 Any Product supplied or installed by Start Communications to the Service Customer in connection with the Mobile Services (including but not limited to SIMs and handsets) shall, except for Product purchased by the Service Customer under clause 4 which shall not include handsets obtained by the Service Customer as a result of being subsidised by Start Communications, at all times remain the property of Start Communications. The Service Customer shall return such Product (if applicable) to Start Communications immediately on request and shall be liable for costs, losses, damages and expenses incurred by Start Communications for the repair, recovery and replacement of such equipment or Product (if applicable).
7.15 Upon termination of the Mobile Services Contract (for whatever reason), the Service Customer shall return any handsets and SIMs installed or supplied by Start Communications to the Service Customer in connection with the Mobile Services at the Service Customer’s cost. If such handsets and SIMs are not returned within seven days following the termination of the Mobile Services Contract, Start Communications reserves the right to charge the Service Customer a fee in respect of each handset, such fee being the full market value of the handset(s) at the time of being supplied to the Service Customer.
7.16 In relation to any Product that is supplied or installed by Start Communications to the Service Customer in connection with the Mobile Services hereunder, except for Product purchased by the Service Customer under clause 4, the following shall apply:
(a) The Service Customer shall notify Start Communications in writing within three Business Days of receipt if any of the Product is damaged, or if the order has been incorrectly fulfilled;
(b) Start Communications is not obliged to offer the Service Customer a refund, exchange or credit to the Hardware Fund in the event that Product is ordered by the Service Customer in error;
(c) Start Communications is not obliged to agree to any upgrades to the Product it supplies to the Service Customer at any time, including during or after the Minimum Term (if applicable) but if it does, Start Communications shall be entitled to extend the Minimum Term; and
(d) The supply of Product by Start Communications to the Service Customer shall be subject to availability.
7.17 Any Hardware Fund and any Product supplied that has been charged to a Hardware Fund, are supplied by Start Communications in return that the Service Customer completes the Minimum Term or the minimum period of the corresponding contract with the Airtime Provider, as applicable.
7.18 Where the Mobile Services Contract is completed, then full title of any handsets supplied by Start Communications shall transfer to the Service Customer, along with the right for the Service Customer to claim any outstanding amounts held by Start Communications in the Hardware Fund.
7.19 At the end of the Minimum Term or the minimum period of the corresponding contract with the Airtime Provider, as applicable, should the Service Customer’s Hardware Fund be in a negative position then the Service Customer acknowledges and agrees to Start Communications invoicing the full amount, and to pay that amount in line with Start Communications’ standard payment terms.
7.20 Where the Service Customer terminates any Connection prior to the expiry of that Connection’s minimum period, the Service Customer shall pay to Start Communications a lump sum termination payment calculated as the total amount of the Hardware Fund initially provided to the Service Customer at the point of connection or renewal, as applicable, minus any unspent amount currently held by Start Communications.
7.21 Where the Service Customer terminates any Connection prior to the expiry of that Connection’s minimum period and the Hardware Fund has been fully utilised by the Service Customer, the Service Customer shall pay to Start Communications a lump sum equal to the Hardware Fund provided for the Connection(s) in question, based on the value of the Hardware Fund provided at the commencement of the current minimum period.
7.22 Where the Service Customer terminates any Connection prior to the expiry of that Connection’s minimum period and Product has been supplied either free of charge or at a reduced rate, the Service Customer shall pay to Start Communications a lump sum equal to the Product provided for the Connection(s) in question, based on the market value of the Product provided at the commencement of the current minimum period.
7.23 The sums stipulated in clauses 7.20, 7.21 and 7.22 will be charged in addition to any contractual early termination fees imposed by either Start Communications, or the applicable Airtime Provider in relation to the contract with said Airtime Provider.
7.24 The European Electronic Communications Code (“EECC”) provides that certain mobile and broadband contracts should not have a longer commitment period than 24 months unless you agree to a waiver of this requirement. You can find more information about this provision, your rights, and your ability to waive it in Ofcom’s statement on fair treatment and easier switching for broadband and mobile customers at www.ofcom.org.uk/consultations-and-statements/category-1/proposals-to-implement-new-eecc. By signing this Services Order Form, you confirm that you have been advised of your rights under the EECC, that you understand that the contract you are purchasing is longer than 24 months and by proceeding with the purchase you agree to waive any applicable rights under the EECC.
8. SERVICE CUSTOMER’S GENERAL OBLIGATIONS AND TERMS APPLICABLE TO ALL SERVICES
8.1 In relation to the Services, the Service Customer:
(a) shall ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) shall co-operate with Start Communications in all matters relating to the relevant Services;
(c) shall provide Start Communications, its employees, agents, consultants and subcontractors, with access to the Service Customer’s premises, office accommodation and other facilities as reasonably required by Start Communications;
(d) shall provide Start Communications with such information and materials as Start Communications may reasonably require in order to supply the relevant Services and/or Product, and ensure that such information is accurate in all material respects;
(e) shall prepare its premises for the supply of the relevant Services (where applicable);
(f) shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start (where applicable);
(g) agrees that Start Communications may from time to time monitor or record calls made to Start Communications or by Start Communications to improve Service Customer service, for training or for marketing purposes;
(h) agrees that Start Communications shall not be liable or responsible for any failure or delay in the Services due to or in connection with any third party infrastructure applicable to the supply of any Services;
(i) agrees to co-operate with any criminal investigations or any investigation of any regulatory body that is applicable to the supply of any of the Services;
(j) be responsible for ensuring the accuracy of all specifications, drawings, sketches, plans, descriptions and instructions provided to Start Communications in connection with the supply of any Services and/or Product; and
(k) shall comply with all Service Specific Conditions.
8.2 The Service Customer is responsible and shall be liable to Start Communications for the use of the Services (including for any Charges incurred) by the actions of any of its employees and any other person who has been given access to use the Services by the Service Customer and any person who gains access to use the Services for fraudulent purposes including in each case where such use was not authorised by the Service Customer. The Service Customer is strongly advised to install robust and effective security provisions to prevent unauthorised and/or fraudulent use.
8.3 If Start Communications’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Service Customer or failure by the Service Customer to perform any relevant obligation or comply with any obligation or policy under the Conditions (Service Customer Default):
(a) Start Communications shall without limiting its other rights or remedies have the right to suspend performance of any Service until the Service Customer remedies the Service Customer Default, and to rely on the Service Customer Default to relieve it from the performance of any of its obligations to the extent that the Service Customer Default prevents or delays Start Communications’ performance of any of its obligations;
(b) Start Communications shall not be liable for any costs or losses sustained or incurred by the Service Customer arising directly or indirectly from Start Communications’ failure or delay to perform any of its obligations as set out in this clause 8.3; and
(c) the Service Customer shall reimburse Start Communications on written demand for any costs or losses sustained or incurred by Start Communications arising directly or indirectly from the Service Customer Default
8.4 Without prejudice to clause 8.3 or any other remedy available to Start Communications, Start Communications shall be entitled to suspend the performance of any Service or terminate the Contract relating to the relevant Service without further liability to the Service Customer in the event that Start Communications:
(a) is obliged to comply with any order, instruction or request of any competent governmental body;
(b) terminates the provision of telecommunications services;
(c) in its reasonable opinion, Start Communications or the Carrier believes the Service are being used fraudulently or unlawfully; or
(d) in its reasonable opinion Start Communications or the Carrier needs to carry out improvements or repairs to any networks or Product relating to the applicable Services.
8.5 Start Communications shall not be liable for any charges resulting from or in connection with fraudulent or unauthorised use of a Service and/or Product and the Service Customer shall be responsible for and pay all charges, costs, fees and expenses resulting from or in connection with any fraudulent or unauthorised use of any Service and/or Product.
9. CHARGES AND PAYMENT FOR SERVICES
9.1 The Charges for the Services and/or the Product shall be charged to and payable by the Service Customer in accordance with this clause 9 and in the case of Data Services and Fixed Network Services in accordance with this clause 9 and clause 10.
9.2 The Charges for the Product and Installation Services shall be as specified in the Services Order Form and calculated in accordance with these Conditions. Except as otherwise specified in the Services Order Form, Charges for Product and Installation Services shall be payable on Delivery.
9.3 The Service Customer shall pay any deposit specified in the Services Order Form within seven days of submitting the Services Order Form to Start Communications.
9.4 The Charges for the Maintenance Services shall be as specified in the Services Order Form and calculated in accordance with these Conditions. Except as otherwise specified in the Services Order Form, Charges for Maintenance Services shall be payable annually in advance with the first payment due on the Commencement Date, and continuing to be payable thereafter on each anniversary of the Commencement Date.
9.5 Where clause 4.8 applies in relation to Maintenance Services, Start Communications shall be entitled to make such additional charges as are calculated in accordance with the Tariff.
9.6 Start Communications may charge the Service Customer a call out fee where such call out occurs based on incorrect information being provided to Start Communications or where a call out occurs but the operative is unable to gain access to the premises within the times notified to the Service Customer for the call out.
9.7 The Charges for the Maintenance Services shall increase on each anniversary of the Commencement Date by the Consumer Price Index (CPI) plus 3.9%. If CPI is negative, we will only apply the 3.9% increase.
9.8 Where Charges are calculated according to the Service Customer’s usage, such usage shall be determined by reference to data recorded or logged by Start Communications and not by reference to any data recorded or logged by the Service Customer.
9.9 The provisions of this clause apply to any proposed increase in the Charges other than those referred to in clause 9.10 below (which reflect an increase caused by regulatory changes in respect of which the provisions of clause 9.10 apply). Start Communications reserves the right to increase its Charges for any Service (including without limitation by revising any Tariff). Start Communications will give the Service Customer written notice of any such increase not less than 30 days before the proposed date of the increase. If such increase is not acceptable to the Service Customer, it shall notify Start Communications in writing within 14 days of the date of Start Communications’ notice that the Client wishes to terminate the Contract, failing which the Service Customer shall be deemed to have accepted the changes.
9.10 Start Communications reserves the right to increase its Charges for any Service as a result of any increase in Consumer Price Index (CPI) plus 3.9% to it by a sum equal to any such increase. If CPI is negative, we will only apply the 3.9% increase. Start Communications will give the Service Customer written notice of any such increase not less than 30 days before the proposed date of the increase. In such circumstances the Service Customer shall not have the right to cancel the Contract.
9.11 Except where otherwise specified in these Conditions or the relevant Order for any Service, the Service Customer shall pay each invoice submitted by Start Communications:
(a) within five days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Start Communications.
9.12 Time for payment of all Charges shall be of the essence of the Contract.
9.13 All amounts payable by the Service Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). The Service Customer shall pay to Start Communications such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
9.14 Invoices shall be deemed to have been accepted if the Service Customer does not present a written objection, identifying clearly the disputed invoice and the reasons why it is challenged, to Start Communications within 30 days of the date of the invoice.
9.15 If the Service Customer fails to make any payment due to Start Communications under the Contract by the due date for payment, then the Service Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above HSBC Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Service Customer shall pay the interest together with the overdue amount.
9.16 The Service Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Start Communications may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Service Customer against any amount payable by Start Communications to the Service Customer.
9.17 Start Communications may exercise a lien over any Product or goods in Start Communications’ possession belonging to the Service Customer, for all monies payable by the Service Customer to Start Communications.
9.18 Any delay in Start Communications raising an invoice for any Charges shall not prohibit Start Communications from raising an invoice for the applicable Charges at a later date and the Service Customer shall pay such Charges.
9.19 Start Communications reserves the right to make additional charges for paper billing, late payment, reconnection, non-direct debit payment methods and incorrect fault reporting by the Service Customer. Such charges are as published by Start Communications from time to time and are published at www.startcomms.co.uk/standard-tariffs
9.20 Start Communications may at its sole discretion refuse to provide support in respect of the relevant Services and/or support any Product if the Service Customer fails to pay one or more invoice by the relevant due date, and the Service Customer acknowledges and agrees that any such support may be withheld until Start Communications is satisfied that any outstanding payment has been made or outstanding balance rectified.
9.21 Start Communications reserves the right to recover any costs it incurs, including legal fees, on a full indemnity basis as a result of the Service Customer’s failure to comply with these Conditions and/or any Service Specific Conditions. The Service Customer shall also be responsible for all reasonable costs incurred in the recovery of any outstanding balance (including the employment of a debt collection agency). Fees will be provided on request.
10. ADDITIONAL TERMS RELATING TO CHARGES FOR DATA SERVICES AND FIXED NETWORK SERVICES
10.1 The Charges for the Fixed Network Services and the Data Services shall be as detailed in the Services Order Form (subject always to clause 9.7) and as otherwise determined in accordance with the Contract.
10.2 Charges for line rental are payable from the Handover Date monthly in advance by direct debit, or such other method as is specified in the Order.
10.3 The Service Customer shall pay for all Charges for calls whether made by the Service Customer or any third party. Subject to clause 10.4, Start Communications shall invoice the Service Customer monthly in arrears for all call Charges and the Service Customer shall pay such invoice within five days of the date of the relevant invoice by direct debit.
10.4 Notwithstanding clause 10.2 and clause 10.3, Start Communications reserves the right to invoice the Service Customer for Charges at any time.
10.5 If Start Communications supplies the Service Customer with any temporary Data Services and/or Fixed Network Services, it may charge the Service Customer in advance for the whole period during which the temporary services are to be provided
10.6 Start Communications shall have the right to charge a minimum fee for calls of not less than £4.50 per month in the event that the Service Customer’s call charges do not exceed this sum in any month.
10.7 In respect of Fixed Network Services that include or comprise only of inbound voice services and inbound numbers, the Service Customer acknowledges and agrees that Start Communications shall have based its Charges for the Contract upon forecast information provided by the Service Customer about total number and duration of calls for the inbound numbers.
10.8 The Service Customer further acknowledges and agrees that Start Communications may apply a charge (calculated monthly and payable by the Service Customer in arrears) for each inbound number which, either, does not carry any traffic for any one month period, or, carries traffic which is at least 50% lower than that outlined in the forecast provided under clause 10.7.
11. ADDITIONAL TERMS RELATING TO CHARGES FOR MOBILE SERVICES
11.1 In respect of Wholesale Mobile Services the Service Customer acknowledges and agrees that Start Communications may increase the Charges for line rental as a result of any increase in Consumer Price Index (CPI) plus 3.9% giving the Service Customer not less than 30 days’ written notice prior to the increase. If CPI is negative, we will only apply the 3.9% increase. In such circumstances the Service Customer shall not have the right to cancel the Contract.
11.2 Charges in respect of calls are subject to fluctuation or change by Start Communications without notice to the Service Customer.
12. CANCELLATION CHARGE
If the Service Customer cancels a Service, Start Communications may charge and the Service Customer shall pay a fee in respect of each such cancellation (Cancellation Fee).
13. CONFIDENTIALITY AND DATA PROTECTION
13.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party may disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 13 shall survive termination of the Contract.
13.2 Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Laws. In this clause 13, references to ‘Controller’, ‘Processor’, ‘Data Subject’, ‘Personal Data’ , ‘Personal Data Breach’, ‘Process’, ‘Processed’ and ‘Processing’, have the meanings set out in, and will be interpreted in accordance with, the Data Protection Laws.
13.3 The Service Customer acknowledges and accepts that Start Communications may use the information that the Service Customer provides to Start Communications in the course of becoming a ‘Service Customer’ (which may include Personal Data) for the purposes of supplying the Product and/or Services to the Service Customer, improving the Services, statistical analysis and marketing. Where relevant, for the purposes of Data Protection Laws, Start Communications is the Controller for any such Personal Data. Start Communications may share such data (or any part of it) with its third party service providers to enable Start Communications to supply the Product and/or Services to the Service Customer in accordance with the Contract. Start Communications will Process Personal Data in accordance with applicable Data Protection Laws and as set out in Start Communications’ Privacy Policy, a copy of which can be found at www.startcomms.co.uk/privacy-policy
13.4 The Service Customer acknowledges and accepts that the Service Customer may provide and Start Communications may Process Personal Data belonging to or relating to the Service Customer’s clients, staff and other contacts, on the Service Customer’s behalf, and the Service Customer further acknowledges and accepts that Start Communications may share such data (or any part of it) with its third party service providers to enable Start Communications to supply the Product and/or Services to the Service Customer in accordance with the Contract. In respect of such Personal Data, Start Communications shall be the Processor, and the Service Customer shall at all times be the Controller.
13.5 Without prejudice to the generality of clause 13.2, the Service Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Start Communications for the duration and purposes of this Contract and the Service Customer will only disclose to Start Communications the Personal Data required to perform its obligations under the Contract.
13.6 The details of the Processing operations conducted by Start Communications are as set out below and as may be updated from time to time as agreed in writing between the parties:
(a) the subject matter of the Processing of Personal Data by Start Communications is the performance of the Services pursuant to the Contract;
(b) subject to clause 13.7(h), Start Communications will Process Personal Data for the duration of the Contract, unless otherwise agreed upon in writing between the parties;
(c) Start Communications will Process Personal Data received under the Contract only for the purposes set forth in the Contract and as generated by the Service Customer’s (or its employees’, agents’ or subcontractors’) use of the Services;
(d) the data Processed may include the following types of Personal Data:
(i) name;
(ii) title;
(iii) company;
(iv) email address;
(v) postal address;
(vi) telephone number;
(vii) contract records;
(viii) position;
(ix) passwords;
(e) The data Processed may concern the following categories of Data Subjects, the extent of which is determined and controlled by the Service Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
(i) the Service Customer’s employees, directors and contractors;
(ii) the Service Customer’s customers or third parties authorised by the Service Customer to use the Services.
13.7 Without prejudice to the generality of clause 13.2, Start Communications shall, in relation to any Personal Data Processed in connection with the performance by Start Communications of its obligations under the Contract:
(a) Process that Personal Data only on the documented written instructions of the Service Customer unless required to do so by Data Protection Laws to which Start Communications is subject, in such a case, Start Communications shall inform the Service Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest;
(b) immediately notify the Service Customer if, in Start Communications’ opinion, an instruction infringes Data Protection Laws and Start Communications will not be required to comply with that instruction;
(c) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(d) ensure that all personnel who have access to and/or Process Personal Data are obliged to keep the Personal Data confidential;
(e) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Service Customer has been obtained and the following conditions are fulfilled:
(i) appropriate safeguards are provided (by either Start Communications or the Service Customer) in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) Start Communications complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) Start Communications complies with reasonable instructions notified to it in advance by the Service Customer with respect to the Processing of the Personal Data;
(f) taking into account the nature of the Processing, including by appropriate technical and organisational measures, insofar as this is possible, assist the Service Customer, at the Service Customer’s cost, in responding to any Data Subject access requests and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(g) notify the Service Customer without undue delay on becoming aware of a Personal Data Breach;
(h) at the written direction of the Service Customer, delete or return Personal Data and copies thereof to the Service Customer on termination of the Contract unless required by Data Protection Laws to store the Personal Data;
(i) maintain complete and accurate records and information and, upon the Service Customer’s prior written request at reasonable intervals, make available to the Service Customer all information necessary to demonstrate Start Communications’ compliance with this clause 13 and allow for and contribute to audits, including inspections, conducted by the Service Customer or the Service Customer’s designated auditor, provided that the Service Customer;
(i) provides Start Communications reasonable prior written notice, in any event being not less than 30 Business Days, of such audit and/or inspection being required by the Service Customer;
(ii) Start Communications and the Service Customer mutually agreeing upon the scope, timing and duration of the audit and/or inspection;
(iii) ensures that such audit and/or inspection is conducted during Business Days and business hours, being 09:00 to 17:30 (GMT) Monday to Friday with minimal disruption to Start Communications’ business, the subprocessors’ business and the business and interests of other customers of Start Communications;
(iv) not causes Start Communications to breach its confidentiality obligations with its other customers, suppliers or any other organisation; and
(v) reimburse Start Communications’ reasonable charges associated with The audit and/or inspection.
13.8 The Service Customer consents to Start Communications appointing third-party sub-processors of Personal Data in connection with the provision of the Services and/or Product under the Contract. Start Communications will maintain an up-to-date list of sub-processors which will be available on request. Start Communications confirms that it has entered or (as the case may be) will enter with the sub-processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 13 with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such sub-processor and in either case which Start Communications confirms reflect and will continue to reflect the requirements of Data Protection Laws. As between the Service Customer and Start Communications, Start Communications shall remain fully liable for all acts or omissions of any sub-processors appointed by it pursuant to this clause 13.
14. LIMITATION OF LIABILITY
14.1 Nothing in the Contract shall limit or exclude Start Communications’ liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation by Start Communications; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.2 Subject to clause 14.1, Start Communications shall not be liable to the Service Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information;
(g) any indirect or consequential loss.
(h) any loss or consequential loss as a result of Toll Fraud, attack, viruses, interference, hacking, or other security intrusion and disclaims any liability relating thereto.
14.3 Subject to clause 14.1 and clause 14.2, Start Communications’ total liability to the Service Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall, in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, be limited to the equivalent of the total Charges paid by the Service Customer in that period for the Product and/or the relevant Service in respect of which the claim arose.
14.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
14.5 If the Service Customer is a consumer, nothing in these Conditions shall prejudice its statutory rights.
14.6 This clause 14 shall survive termination of the Contract.
15. TERMINATION
15.1 Without limiting its other rights or remedies, Start Communications may terminate the Contract (in whole or in part) without further liability to the Service Customer by giving the Service Customer not less than 30 days written notice.
15.2 Without limiting its other rights or remedies, Start Communications may terminate the Contract (in whole or in part) with immediate effect by giving written notice to the Service Customer if:
(a) the Service Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of the Service Customer being notified in writing to do so;
(b) the Service Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the Service Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Service Customer with one or more other companies or the solvent reconstruction of the Service Customer;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Service Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Service Customer with one or more other companies or the solvent reconstruction of the Service Customer;
(e) the Service Customer (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the Service Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Service Customer (being a company);
(h) the holder of a qualifying floating charge over the assets of the Service Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the Service Customer or a receiver is appointed over the assets of the Service Customer;
(j) any event occurs or a proceedings are taken with respect to the Service Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2(b) to clause 15.2(i) (inclusive);
(k) the Service Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(l) the Service Customer’s financial position deteriorates to such an extent that in Start Communications’ opinion the Service Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the Service Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
15.3 Without limiting its other rights or remedies, Start Communications may terminate the Contract (in whole or in part) with immediate effect by giving written notice to the Service Customer if the Service Customer fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding amounts within 30 Business Days after being notified in writing to do so.
15.4 Without limiting its other rights or remedies, Start Communications may suspend provision of the Services under the Contract or any other contract between the Service Customer and Start Communications if the Service Customer becomes subject to any of the events listed in clause 15.2(b) to clause 15.2(m), or Start Communications reasonably believes that the Service Customer is about to become subject to any of them, or if the Service Customer fails to pay any amount due under this Contract on the due date for payment.
16. CONSEQUENCES OF TERMINATION
16.1 On termination of the Contract for any reason:
(a) the Service Customer shall immediately pay to Start Communications all of Start Communications’ Outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Start Communications shall submit an invoice, which shall be payable by the Service Customer immediately on receipt;
(b) the Service Customer shall return any Product which has not been fully paid for. If the Service Customer fails to do so, then Start Communications may enter the Service Customer’s premises and take possession of the Product. Until it has been returned, the Service Customer shall be solely responsible for the safe keeping of such Product and will not use it for any purpose not connected with the Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination of the Contract shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
16.2 Where the Service Customer is a Small Business Service Customer, the Service Customer may terminate a Contract for Fixed Network Services or Data Services at any time prior to commencement of the supply of such Services.
17. FORCE MAJEURE
17.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Start Communications including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Start Communications or otherwise), failure of a utility service (including without limitation street cabling, network or infrastructure failure or fault), failure of a 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, subcontractors or utility suppliers.
17.2 Start Communications shall not be liable to the Service Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
17.3 If the Force Majeure Event prevents Start Communications from providing any of the Services for more than 10 Business Days, Start Communications shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Service Customer
18. GENERAL
18.1 Assignment and Other Dealings:
(a) Start Communications may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract (in whole or in part) and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Service Customer shall not, without the prior written consent of Start Communications, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
18.2 Notices:
(a) Any notice or other communication given under or in connection with the Contract shall be in writing, addressed to the relevant party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail. (Emails to Start Communications must be sent to billing@startcomms.co.uk).
(b) A notice or other communication shall be deemed to have been received:
(i) if delivered personally, when left at the address referred to in clause 18.2(a);
(ii) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(iii) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
(iv) if sent by e-mail, one Business Day after transmission;
(c) A notice or other communication sent by email to Start Communications must be sent to billing@startcomms.co.uk and if sent to a different email address shall not be deemed to have been received.
(d) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
18.3 Severance:
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract, or
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.4 Waiver: a waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency: nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
18.6 Third parties: a person who is not a party to the Contract shall not have any rights to enforce its terms.
18.7 Variation: except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Start Communications. Start Communications reserves the right to make changes to these Conditions from time to time.
18.8 Information about Start Communications: Start Communications operates the website www.startcomms.co.uk. Start Communications is Start Communications Group Limited is a company registered in England and Wales under company number 12422490 with its registered office at Archer House, Britland Estate, Northbourne Road, Eastbourne, East Sussex, BN22 8PW. Start Communications’ VAT number is 343968465. Please refer to Start Communications’ website at www.startcomms.co.uk for information about how to contact us.
18.9 Dispute resolution: the Service Customer must notify any complaints or disputes to Start Communications in accordance with its Customer Procedure available at https://www.startcomms.co.uk/complaints-procedure/. Start Communications shall use reasonable endeavours to resolve any complaint or dispute. Further information concerning the Service Customer’s rights in relation to any dispute or complaint are specified in the Customer Procedure.
18.10 Governing law: the Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
18.11 Jurisdiction: each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).