STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF TELECOMMUNICATIONS SERVICES OF SUNDIAL TELECOM LIMITED
In this document the following words shall have the following meanings:
1.1. “Agreement” means these Terms and Conditions together with the terms of any applicable Service Specification;
1.2. “Customer” means the organisation or person who purchases services from the Supplier;
1.3. “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4. “Service Specification” means a statement of work, quotation or other similar document describing the services to be provided by the Supplier;
1.5. “Supplier” means Sundial Telecom Limited whose registered office is at Newton House, 2 Pioneer Court, Chivers Way, Histon, Cambridge, CB24 9PT, UK
2.1. These Terms and Conditions shall apply to all contracts for the supply of services by the Supplier to the Customer.
2.2. Before the commencement of the services the Supplier shall submit to the Customer a Service Specification which shall specify the services to be performed and the fees payable. The Customer shall notify the Supplier immediately if the Customer does not agree with the contents of the Service Specification. All Service Specifications shall be subject to these Terms and Conditions.
2.3. The Supplier shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services.
2.4. At point of signup via www.sundialtele.com, or any other website operated by the Supplier, a Customer will decide if they wish to apply for a Pre Paid or Post Paid Customer Account. Pre Paid Customer Accounts are completed during the signup process. Post Paid Customer Accounts will be marked as ‘pending’ and will take between 2 and 5 business days to be completed. After the necessary Company checks have been completed a Customer may be asked to lodge a security deposit to be used against any Services supplied by the Supplier to the Customer.
2.5. Access to the web based user account is available provided the Customer agrees that all information supplied during the signup process is a true and accurate reflection of the Customers Identity and not based on information belonging to any third party or entity. The Customer agrees to update this information when necessary in order that the Supplier is notified of any changes to this information. The Supplier reserves the right to cancel the Customer’s account at any time if the information supplied is found to be inaccurate or deemed to be intended to be used fraudulently.
2.6. The security of all usernames and passwords associated with and used to access the web based user account are the sole responsibility of the Customer
3. FEES AND PAYMENT
3.1. POST PAID CUSTOMER ACCOUNTS – The fees for the performance of the services are as set out in the Service Specification. The Supplier shall invoice the Customer for the services at the beginning of each calendar month for all services supplied during the previous calendar month. For example all services supplied in January will be invoiced as soon as in practical at the beginning of February.
3.2. POST PAID CUSTOMER ACCOUNTS – Invoiced amounts shall be due and payable within 30 days of receipt of invoice. The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of ten percent (10%) per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order prior to payment, the Customer shall be responsible for issuing such purchase order as soon as is practical after the beginning of the month in question.
3.3. PRE PAID CUSTOMER ACCOUNTS – PRE PAID CUSTOMER ACCOUNTS will be ‘topped up’ by the Customer via the ‘add money’ tab in the relevant accounts Control Panel. Money can be added using PayPal or an acceptable credit card. An invoice will be issued to the Customer by the Supplier immediately after each transaction. All payments received by the Supplier from the Customer are non refundable except in exceptional circumstances. The Supplier reserves the right to decide what constitutes exceptional circumstances.
4. CUSTOMER’S OBLIGATIONS
4.1. To enable the Supplier to perform its obligations under this Agreement the Customer shall:
4.1.1. Co-operate with the Supplier;
4.1.2. Provide the Supplier with any information reasonably required by the Supplier;
4.1.3. Obtain all necessary permissions and consents which may be required before the commencement of the services; and
4.1.4. Comply with such other requirements as may be set out in the Service Specification or otherwise agreed between the parties.
4.2. The Customer shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Customer’s failure to comply with Clause 4.1.
4.3. Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer unlawfully terminates or cancels the services agreed to in the Service Specification, the Customer shall be required to pay to the Supplier as agreed damages and not as a penalty the full amount of any third party costs to which the Supplier has committed and in respect of cancellations on less than five working days’ written notice the full amount of the services contracted for as set out in the Service Specification, and the Customer agrees this is a genuine pre-estimate of the Supplier’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 4.1 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.
4.4. In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Customer as soon as possible and:
4.4.1. The Supplier shall have no liability in respect of any delay to the completion of any project;
4.4.2. If applicable, the timetable for the project will be modified accordingly;
4.4.3. The Supplier shall notify the Customer at the same time if it intends to make any claim for additional costs.
5. ALTERATIONS TO THE SERVICE SPECIFICATION
5.1. The Supplier may at any time amend the Service Specifications. Any alterations in the scope of services to be provided under this Agreement shall be set out in the Service Specification, which shall reflect the changed services and fees and any other terms agreed between the parties.
5.2. The Customer may at any time request alterations to the Service Specification by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.
5.3. Where the Supplier gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed.
5.4. Where the Supplier gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Service Specification shall be amended to reflect such alterations and thereafter the Supplier shall perform this Agreement upon the basis of such amended terms.
6.1. The Supplier warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
6.2. Without prejudice to Clause 6.1, and except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the services to be provided by the Supplier.
The Customer shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against the Supplier alleging that any services provided by the Supplier in accordance with the Service Specification infringes a patent, copyright or trade secret or other similar right of a third party.
8. LIMITATION OF LIABILITY
8.1. Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Supplier to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the fees paid by the Customer to which the claim relates.
8.2. In no event shall the Supplier be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Customer incurring such a loss. The Supplier reserves the right to suspend any service offered via the relevant service specification for maintenance, upgrade or regulatory reasons or any such reason that is outside the control of the Supplier without incurring any liability to the Customer.
8.3. Nothing in these Terms and Conditions shall exclude or limit the Supplier’s liability for death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or sub-contractors.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
9.1. the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
9.2. the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
9.3. the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
9.4. the other party ceases to carry on its business or substantially the whole of its business; or
9.5. the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
10. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
11. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
12. INDEPENDENT CONTRACTORS
The Supplier and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Service Specification or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
17. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by the Supplier having given the Customer 30 days written notice.
18. NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
19. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
1. Email to Fax
DESCRIPTION AND SCOPE OF SERVICE: Email to Fax is intended to allow a registered Customer(s) to send a fax transmission to the recipient of their choosing via email. The registered Customer will send an email to the provided fax receiving email address together with the recipients’ fax number and the intended fax document as an email attachment. The email is received on the Suppliers fax platform, processed and queued for sending. The cost of sending each page is determined by the page transmission rate (see below). In the event of a single page, or any subsequent pages taking more than one minute to transmit, the total cost of the transmission will be calculated using the rate per page multiplied by the total duration of the fax call expressed in seconds. The Customer will receive notification emails to their registered email address advising them of the progress of the fax job. The notifications will advise the following fax job status –
Pending – Sending – Sent – Failed
The customer will be notified via these status email notifications of the next step to take, if any. Administration is via a web based control panel accessed using the Customers personal login details, supplied at the time the Customer account was created. The control panel allows the following actions to be performed –
- Management of permitted email addresses. These are the email addresses of users who are permitted to use the service via this Customer account. Limited to five in the standard service. Each email address can be given a name to identify activity by that user in the fax log.
- Viewing and manipulation of fax logs. The option to choose a date range and view a list of all fax activity during that time including date & time, destination fax number, which permitted email address sent the fax, how many pages were sent, the cost & the status of the fax.
RATES: As advised in the Email to Fax section of the Supplier website.
Under Government legislation introduced on 1 May 1999 it is unlawful to send an individual an unsolicited sales and marketing fax without prior permission. More information can be found at the Fax Preference Service at http://www.fpsonline.org.uk. Customers are advised that use of the Email to Fax service for purposes of transmitting unsolicited fax material is not permitted. The Supplier reserves the right to immediately close the account of any Customers found to be using the service for this purpose.
It is the responsibility of the Customer to use this service in a fair and responsible manner and to not engage in any activity likely to cause a breach of this agreement or carry out any act that will contravene the laws governing this agreement. The Supplier is not responsible for the content of any fax transmissions sent by the Customer. In this context the Supplier acts purely as a gateway between the Customer and the fax recipient.