Terms & Conditions

EUROLINK TELECOM LIMITED TERMS AND CONDITIONS

Definitions

In these terms and conditions the following words shall have the following meanings:

1. THE SERVICE AND APPLICATION OF THESE TERMS AND CONTISIONS

Eurolink Telecom Limited ("ELK") agrees to supply the telecommunications service or services indicated overleaf ("the Service"), and the authorised legal person named in section 1 of the RQS ("the Customer") agrees to use the Service in accordance with these terms and conditions. The completed RQS and these terms and conditions constitute the entire agreement between ELK ("this Agreement").

2. COMMENCEMENT AND DURATION

2.1 ELK shall use its best endeavours to process the Customer's completed RQS within 24 hours of it being signed by the Customer or its receipt by ELK (whichever shall be the later). This Agreement shall not commence until the RQS has been processed. The Customer may at its option cancel this Agreement within 24 hours of completing and signing the RQS at no cost to the Customer, provided that it has not used the account. In the event that the Customer has used the account within this period it shall not be entitled to cancel this Agreement, save in accordance with Condition 10 (Cancellation).

2.2 This Agreement shall remain in force until the expiry of the Initial Period relevant to the Services specified in Condition 2.3 and shall continue thereafter unless or until it is terminated by either the Customer or ELK pursuant to Condition 9 (Termination) or it is cancelled by the Customer pursuant to Condition 10 (Cancellation).

2.3 For the purposes of Condition 2.2, the Initial Period shall be as follows:

Broadband - 12 months from the Provisioning Date; CPS/IDA - 3 months from the Provisioning Date; Mobile - 12 months, which period shall start: (a)in the case of a new service, from the Provisioning Date; (b)in the case of migration, porting and upgrades, from the date the Customer is connected. VISP - 12 months from the Provisioning Date; WLR - 12 months, which period shall start: (a) in the case of a new service, from the date of installation of the line; (b) in the case of transfer from another provider, from the Transfer Date.

3. PAYMENT

3.1 Unless agreed in advance in writing with the Customer to the contrary, the prices which ELK shall charge to the Customer for the Service shall be as set out in the ELK published price list as is current from time to time, which ELK may vary by giving the Customer not less than 30 (thirty) days notice. All quoted prices are exclusive of Value Added Tax which shall be added at the current rate.

3.2 ELK shall calculate charges by reference to data recorded or logged by ELK and not by data recorded or logged by the Customer.

3.3 ELK shall invoice the Customer on a monthly basis for all charges under this Agreement plus Value Added Tax at the required rate. All ELK invoices are payable in full by the Customer within 14 days of the date shown on them without any set off or deduction.

3.4 All ELK's charges must be paid either by cheque, variable direct debit from a current account maintained by the Customer at a UK branch of a bank or building society or by being charged under a standing arrangement to the Customer's credit/charge/debit cards as accepted by ELK.

3.5 If any credit/charge/debit card, direct debit or account payment collection by the Company is unsuccessful, the Customer will pay an administration charge of £25 and a late payment charge at a rate of 2% per month on any unpaid overdue balance.

3.6 In the event of any dispute as to charges ELK's records shall, in the absence of any evidence as to fraud, be conclusive evidence of the charges which are to be paid by the Customer hereunder.

4. CUSTOMER RESPONSIBILITIES

4.1 The Customer undertakes to use the Service in accordance with these terms and conditions, such conditions as may be notified in writing to the Customer by ELK from time to time and at all times in accordance with the relevant provisions of the Telecommunications Act 1984, the Communications Act 2003 and any rule or regulation made under them, any other applicable laws and regulations, directions given by the Secretary of State, the Director General, Oftel, Ofcom or any other competent person or authority and any licence which governs the operation or use by the Customer of a telecommunications system ("the Rules").

4.2 The Customer will ensure that the Service is not used:
a) as a means of communication for a purpose other than that for which the Service is provided; or
b) for the transmission of any material which is intended to be a hoax call to emergency services or is of a defamatory, offensive, abusive, obscene or menacing character; or
c) in a manner which constitutes a violation or infringement of the rights of any other party.

4.3 The Customer is responsible for ensuring that any transfer, migration or porting from ELK to another service provider is effected by such service provider on the correct date.

4.4 The Customer hereby indemnifies ELK against all liabilities, claims, damages, losses and expenses arising from any breach of its obligations as prescribed in this Condition 4.

5. CUSTOMER'S EQUIPMENT

5.1 The Customer undertakes that any Customer telecommunications apparatus shall be in good working order and conforms at all times to the relevant standard or approval under the Rules and the Customer shall at all times comply with the conditions of such standard and approval. ELK will not be under any obligation to connect or keep connected any such equipment which they reasonably believe does not conform to the provisions of any applicable requirements. The Customer is responsible at all times for the safety and safe custody of such equipment and for the safe use of it and the Service

5.2 To enable ELK to fulfil its obligations under this Agreement the Customer shall permit or procure the permission for ELK and its authorised representatives to have access to the Customer's premises and shall provide ELK with such reasonable access as the Company shall request. ELK will normally require access only during ELK's normal working hours but may, on reasonable notice, require access at other times in order to ensure the provision of the Service. At the Customer's request, ELK may agree to work outside its normal working hours provided that the Customer reimburses ELK its reasonable charges for complying with such request

5.3 The Customer duly authorises ELK, its dealers, agents or personnel to reprogram and/or remove existing access equipment as may be necessary in order to provide the Service. It is the Customer's obligation to follow ELK or its authorised representative's specifications regarding any construction work at the Premises necessary for the installation of the equipment or reprogramming of the Customer's telephone system for the Customer's use of the Service. The Customer shall provide such reasonable assistance as ELK shall request.

5.4 ELK reserves the right to charge the Customer for all costs incurred as a result of carrying out maintenance or repair work which, in ELK's reasonable opinion, is considered unnecessary. If Customer equipment is programmed for IDA to route calls over any network which is not supplied by ELK, ELK reserves the right to increase its line rental by 20 per cent of the relevant current tarriff.

6. PROVISION OF INFORMATION

The Customer must provide ELK with all information and co-operation which ELK may reasonably require to enable it to carry out its obligations.

7. LIABILITY

7.1 ELK shall accept liability for physical damage caused to the property of the Customer caused by any negligent act or omission of ELK, its employees or agents. ELK's liability for physical damage shall be limited to £10,000 for any one incident or £25,000 for any series of incidents arising from a common cause in any twelve month period.

7.2 Subject to condition 7.5, ELK shall in no circumstances, in relation to any matter or series of matters (and whether taken individually or collectively) arising under or in connection with this Agreement during the period which it shall be in force, be liable to the Customer for more than £50,000.

7.3 Subject to Condition 7.5, ELK shall not accept any other liability to the Customer, whether in contract, tort or otherwise, including any liability for negligence, for any loss of revenue, business, anticipated savings or profit, loss of goodwill, loss of or corruption to data or for any other economic loss or for any indirect or consequential loss whatsoever and howsoever arising and even if the Customer has notified ELK that any of the above may occur.

7.4 In the event of any failure in the Service, ELK shall not be liable to the Customer for any charges incurred by the Customer should the Customer divert its traffic to another carrier. ELK shall not be liable to the Customer where any interruption in or failure of the Service occurs due to a line or network failure or is otherwise due to the actions or omissions of the line or network provider or any of their employees, agents or sub-contractors.

7.5 Nothing in this Condition 7 or elsewhere in this Agreement shall act so as to exclude or restrict any liability which ELK may have to the Customer for any death or personal injury resulting from the negligence of ELK, its employees or agents or arising from any fraud.

7.6 The provisions of this Condition 7 shall continue to apply even after this Agreement has ended.

8. AVAILABILITY

8.1 The Service is provided with no warranty whatsoever save as set out in this Condition 8. All other warranties, conditions and guarantees are excluded to the fullest extent permitted by law, unless expressly provided for elsewhere in this Agreement.

8.2 In the unlikely event of any fault with the Service, ELK will endeavour to fix the fault as soon as reasonably possible.

8.3 ELK agrees to supply the Service to the Customer using the reasonable skill and care of a competent telecommunications service provider.

8.4 ELK reserves the right to vary the Service for technical, operational and other valid reasons.

8.5 ELK shall use all reasonable endeavours to ensure that the Service is available for use by the Customer in accordance with the Service standards for the time being set out in ELK's Service literature.

9. TERMINATION

9.1 Without prejudice to their rights under this Agreement, ELK and the Customer shall have the right to terminate this Agreement immediately on notice to the other party in the event that:-
a) the other party is in breach of this Agreement and if the breach can be remedied, fails to remedy it within a reasonable time specified by the non defaulting party in its written notice to do so; or
b) an interim order is applied for or made, a voluntary arrangement approved, a petition for a bankruptcy order is presented, or a bankruptcy order is made, against the other party; or a receiver or trustee in bankruptcy is appointed over the other party's estate; or a voluntary arrangement is proposed or approved in relation to the other party; or a receiver or administrative receiver is appointed over the other party's assets or undertaking or an order is made for the appointment of an administrator to manage the affairs, business or property of the other party; or a winding-up resolution or petition is passed or presented (otherwise than for the purpose of reconstruction or amalgamation); or a notice of intention to make any such appointment shall be served on the other party or any circumstances shall arise which entitle the court, a creditor or any other person to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or to make a winding-up order, in relation to the other party.

9.2 Without prejudice to its other rights, ELK shall have the right forthwith to terminate this Agreement by notice in writing to the Customer in the event that:- a) ELK's licence expires or is revoked; or b) a licence under which the Customer has the right to run its telecommunications system and connect it to ELK's system is revoked, amended or otherwise ceases to be valid and is not immediately replaced by another valid licence.

9.3 Either party shall be entitled to terminate this Agreement immediately on notice to the other in the event that a Force Majeure Event shall have continued for a period of three months or more.

9.4 If the Customer terminates this Agreement under Condition 9.1 or ELK terminates this Agreement under Condition 9.1 or 9.2, ELK shall be entitled to recover from the Customer all costs, losses and expenses reasonably incurred by ELK arising from or in connection with the termination.

9.5 The provisions of this Condition 9 shall continue to apply even after this Agreement has ended.

10. CANCELLATION

10.1 In addition to the Customer's right to cancel set out in Condition 2.1, the Customer may cancel this Agreement at any time by giving not less than 30 (thirty) days' notice in writing served by registered post to ELK provided that:
(a) if such cancellation is effected during the Initial Period, in addition to the Customer being liable to pay ELK for all charges incurred by the Customer up to the effective date of cancellation (including all interest), the Customer must pay the cancellation charges set out below on or before the effective date of cancellation; and
(b) the cancellation shall not be effective until the last day of the month in which the notice period shall have expired.

Cancellation charges

Broadband - (a) £100.00; and (b) an amount equivalent to the rental charges which the Customer would have been liable to pay for the remaining balance of the Initial Period, plus VAT at the required rate ("the Rental Charges") CPS/IDA - (a) £300.00; and (b) an amount equal to the average charges invoiced to the Customer each month over the lifetime of this Agreement, plus VAT at the required rate. Mobile - (a) £100.00; and (b) an amount equivalent to the rental charges which the Customer would have been liable to pay for the remaining balance of the Initial Period, plus VAT at the required rate ("the Rental Charges"). VISP - the Rental Charges only. WLR - (a) £100.00; and (b) an amount equivalent to the rental charges which the Customer would have been liable to pay for the remaining balance of the Initial Period, plus VAT at the required rate ("the Rental Charges").

10.2 The provisions of this Condition 10 shall continue to apply even after this Agreement has ended.

11. ELK'S RIGHTS WHERE NO NOTICE IS GIVEN BY CUSTOMER

11.1 In the event that at any time the Customer transfers to another telecommunications services provider or otherwise, for whatever reason, ceases to use the account ("the Event") without first notifying ELK in accordance with the provisions of Condition 9 (Termination) or the provisions of Condition 10 (Cancellation), the Customer will be in breach of the terms of this Agreement and ELK shall be entitled (at its discretion) to terminate this Agreement in accordance with the provisions of Condition 9.1 &10

11.2 Until such time as ELK shall exercise its right of termination provided for in Condition 11.1, the Customer shall remain liable to ELK for all charges properly incurred hereunder. The Customer shall be liable to and shall pay ELK for all costs, losses and expenses reasonably incurred by ELK arising from or in connection with the Event or the termination of this Agreement made by ELK following the occurence of the Event. If the Event occurs during the Initial Period, ELK shall also be entitled to charge the Customer, and the Customer shall pay ELK on demand, the relevant amount detailed as a cancellation charge in Condition 10.1.

11.3 ELK shall in its discretion, having regard to the circumstances and the information available, determine when the Event shall have occurred.

11.4 The Provisions of this Condition 11 shall continue to apply even after this Agreement has ended.

12. SUSPENSION OF SERVICE

ELK may at its sole discretion elect to suspend forthwith the provision of the Service until further notice without liability to the Customer on notifying the Customer either orally, (confirming the same in writing) or in writing in the event that: a)the Customer is in breach of any term of this Agreement; or b)the Customer prevents or delays pre-arranged maintenance from being carried out; or c)ELK is obliged to comply with an order, instruction or request of government, an emergency Service organisation or other competent authority; or d)in ELK's reasonable opinion, the Customer is suspected of involvement in fraud or attempted fraud in connection with the use of the Service.

13. NGN SERVICES

13.1 The Customer acknowledges that use of any NGN allocated to it by ELK is under licence only and the Customer shall acquire no rights of ownership in any such NGN. Upon the cancellation or termination of the Service, the Customer's rights to use any NGN forming part of the Service shall immediately cease.

13.2 ELK reserves the right to alter any NGN allocated to the Customer at any time on not less than one month's notice. In the event that ELK alters any NGN, ELK shall not in any way be liable to the Customer.

14. ASSIGNMENT

This Agreement may not be assigned in whole, or in part, by the Customer without the prior written consent of ELK, such consent not to be unreasonably withheld. ELK may in its discretion assign this Agreement or any part of it to any person at any time.

15. FORCE MAJEURE

Neither party shall be liable to the other for any loss or damage which may be suffered by the other party due to any cause beyond the first party's reasonable control including, but not limited to, any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lodeout, trade dispute or labour disturbance, the act or omission of government, highways authorities, war, military operation, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of equipment or access line.

16. ENTIRE AGREEMENT AND VARIATION

16.1 This Agreement represents the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior understandings and representations, whether written or oral, save for any made fraudulently.

16.2 ELK may modify this Agreement on notice to the Customer in the event that ELK is required to make changes to it by reason of any legal or regulatory requirement. ELK may post its latest terms and conditions on its website from time to time. Where modifications are made, the posting by ELK of its modified amended terms and conditions on its website shall constitute adequate notice to the Customer of all such modifications. In the event that any modifications are made of material detriment to the Customer then ELK will also notify the Customer in writing.

16.3 Save as provided in Condition 16.2, this Agreement may only otherwise be modified in writing and signed by a duly authorised representative of ELK and the Customer.

17. NO WAIVER

Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of such right nor operate so as to bar the exercise or enforcement thereof, or of any other right on any later occasion.

18. NOTICES

18.1 Save as provided by Condition 10 and Conditions 18.2 and 18.3 below, any notice, statement or other document which is to be given by either party under this Agreement shall be made in writing and delivered by hand or sent by first class post or sent by facsimile transmission (confirming the same by post) to an address properly notified to it by the other party in writing from time to time as an address to which such notices, statements or other documents may be sent. Such notices shall be deemed to have been properly served (if delivered by hand) on delivery, (if sent by first class post) 48 hours after posting and (if sent by fax) on the first working day after the fax was sent, provided that the required confirmatory letter shall also have been received within two working days of the date of the fax.

18.2 Notwithstanding Condition 18.1, ELK shall be entitled at any time to serve notice on the Customer to the address or email address set out in the RQS or such other email address as the Customer shall provide to ELK from time to time.

18.3 Notwithstanding Condition 18.1, the Customer shall be required to serve notice on ELK to ELK's address as appears on the last statement rendered to the Customer or such other address as may be prescribed by ELK and notified to the Customer for that purpose from time to time.

19. SEVERABILITY

In the event that any provision, Condition or any part of the same set out in this Agreement shall be found by any court of competent jurisdiction to be void, invalid or otherwise unenforceable, the other provisions, Conditions or parts shall not be affected and shall continue in full force and affect to the fullest extent possible in law.

20. GOVERNING LAW

This Agreement shall be governed by and construed and interpreted in accordance with English law and the parties hereby submit to the non-exclusive jurisdiction of the English courts.

21. THIRD PARTY RIGHTS

No person other than the Customer and ELK or an assignee pursuant to Condition 13 shall be entitled to rely on or enforce any provision of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

22. EQUIPMENT SUPPLIED BY ELK

22.1 This Agreement shall apply to the Services only.

22.2 In the event that at any time ELK shall agree to let to, hire to or maintain for the Customer any equipment, then, in the absence of any agreement made in writing between ELK and the Customer to the contrary, ELK's terms and conditions which are then current relating to the letting, hire or maintenance of such equipment shall apply to the contract made with the Customer for its letting, hire or maintenance and be binding on the Customer.

Eurolink Telecom Limited A Company Registered in the UK - Reg No: 3707357 - Registered Office: Swan Swan House, Bonds Mill Estate, Stonehouse, Gloucestershire, GL10 3RF.
VAT No 730 1274 75

© Eurolink Telecom Ltd 2004