Nitel Limited – Terms & Conditions January 2019
Telephony & IT Service Level Agreement
Within this Agreement the following definitions shall apply:
- “Critical Incident” means a failure where the Equipment and/or the Software is completely or largely unusable.
- “End Date” means the end of the Minimum Contract Period.
- “Equipment” means All hardware that is covered by this agreement and set out in Appendix
- “GST” means Goods and Service Tax charged, where applicable, by the Company to the Customer at the prevailing rate required under the Goods and Services Tax (Jersey) Law 2007 or any amendment thereto.
- “Minimum Contract Period” means the minimum duration of this Agreement set out in Section C
- “Non Critical Incident” means a failure where the Equipment and/or the Software is usable but requires attention
- “Renewal Extension” means a twelve month extension to the Agreement, Renewal Extensions being multiple periods of extension.
- “Service” means any provision of service(s) outlined within this agreement
- “Service Charge” means the total charge per period, including GST where applicable, charged by Nitel to the Customer for the provision of Service.
- “Service Level Agreement” means the part of this agreement that determines the responsibilities and duties of each party in respect of the Service.
- “Service Level Option” means the level of Service agreed by the customer and detailed in Section B of this document.
- “Site Address” means the clients site address as shown Appendix 1
- “Standard Charge” means Nitel’s standard hourly charge rate
- “Accredited IP Office Engineer” means an engineer that is suitably qualified and experienced and has attended the required Avaya course(s).
- “Callout” means the requirement for an engineer to attend or to use Remote Support to the Site Address following the report of an Incident.
- “DDI” means Direct Dial Inbound calls
- “Incident” means any call made by the Customer in relation to any of the services covered in this agreement
- “Local Area Network” means the Customer’s local area network or LAN
- “Remote Support” means any maintenance, service or work that can be made using Remote Support to the clients LAN and the Equipment
- “Response Time” means the time between reporting the Incident and when Nitel first attends or makes telephone contact with the Site Address in respect of that incident
- “Resolution Time” means the time taken to diagnose each Incident where that Incident is deemed by Nitel to be a normal issue.
- “Replacement Unit” means a hardware unit of equivalent specification, similar age and quality
- “Software” means any software installed by Nitel and set out in Appendix 1
IT Service Level Agreement
- “Agreement” means this agreement and any Schedule(s), including any amendments, variations or additions thereto from time to time.
- “Commencement Date” means the date set out in section C.
- “Customer” means the business named in Schedule A of this Agreement
- “Exclusions” means all and any Equipment and/or Software that is specifically excluded from the scope of this Agreement
- “Incident” means any failure, malfunction or abnormal performance of information technology reported by the Customer to Nitel
- “Nitel” means Nitel Limited
- “Response Time” means the time interval between the first intimation by the Customer of an Incident and the arrival of the Supplier at the Si
- “Schedule” means all or any schedules appended to this Agreement, as amended, varied or added to from time to time.
- “Software” means any written programs or procedures or rules and associated documentation pertaining to the operation of a computer system and that are stored in read/write memory
- “Telephone Response” means any maintenance, service or work that can be made using remote support to the clients LAN and the Equipment
- “Telephone Response Time” means the time interval between the first intimation by the Customer of an Incident and the first contact by Nitel in respect of that Incident.
2 COMMENCEMENT, DURATION AND SCOPE
2.1.1 Unless otherwise expressly agreed in writing between the parties, this Agreement shall have effect on the Commencement Date in relation to the Service covering the Equipment and the Software detailed in Appendix 1
2.1.2 Only items specified in Appendix 1 will be covered under this agreement, for the avoidance of doubt any items excluded from Appendix 1 will not be covered under this agreement.
2.1.3 Subject to the provisions of clause 17 the Agreement shall remain in force for at least Minimum Contract Period.
IT Service Level Agreement
2.2.1 The scope of this Agreement will include all Equipment and/or Software detailed in Appendix 1.
2.2.2 For the avoidance of doubt the scope of this Agreement does not cover any items detailed as Exceptions in Appendix 1
3 RANGE OF SERVICES
Nitel shall be responsible for the provision of the following services hereinafter called the “Service”:
3.1.1 Hardware Failure and Replacement Unit. In the event of hardware failure, subject to clause 9 Nitel will install and configure a Replacement Unit the description of which is outlined in Appendix 1. Nitel will use its reasonable endeavours to install the Replacement Unit within the Response Time having received notice of the relevant Incident.
3.1.2 Response. Nitel will use its reasonable endeavours to respond within the Response Time from the time when the initial Incident was reported.
3.1.3 Preferential Labour Rates. Nitel will provide the Customer with preferential labour rates as set out in Section C for any work whether within or outside the scope of this Agreement.
3.1.4 Unlimited Telephone Support. Nitel will provide free and unlimited telephone support during working hours from 9.00 to 17.00 from Monday to Friday.
3.1.5 Helpdesk Service
3.1.6 Technical Services. Nitel will provide technical resources at the Site Address in order to proceed with the maintenance and repair of the Equipment to its normal operation within the shortest possible time. Nitel or their appointed agent will endeavour to respond within the contracted Response Time to a request for Service, either by arrangement for a service engineer to make a site visit, or by instituting Remote Support.
In the event that an Incident falls outside the scope of this Agreement any additional work will be charged at the rates set out in clause 11 and Nitel will immediately inform the Customer as soon as such condition has been identified. A job sheet will be produced that identifies the work required along with the additional charges.
3.1.7 Warranty Work. If the Incident refers to the requirement for warranty work then only an Accredited IP Office Engineer will carry out repairs and warranty work.
3.1.8 Firmware Upgrades. Nitel will include free critical firmware upgrades to the Equipment and related software. The differential between critical and non critical upgrades shall be made at the sole discretion of Nitel.
3.1.9 Exclusions. The Service does not cover:
126.96.36.199 Faults not effecting the working of the Equipment in accordance with the manufacturers design specification;
188.8.131.52 Repairs required as a result of damage caused by any person other than an employee or agent of Nitel
184.108.40.206 Repairs required as a result of any handling of the Equipment by the Customer
220.127.116.11 Repairs required as a result of loss of power, loss of electronically stored data or application software.
18.104.22.168 Local Area Network cabling, infrastructure, non related hardware and non related software.
22.214.171.124 Any hardware or software not installed by Nitel.
126.96.36.199 Any other exclusions set out in writing by Nitel.
IT Service Level Agreement.
3.2.1 A help desk service to record and manage all help requests made by the Customer,
3.2.2 Initial off-site diagnosis of faults reported by the Customer’s staff,
3.2.3 On-site engineering support when the fault cannot be resolved over the telephone immediately,
4 SERVICE AVAILABILITY
Nitel shall provide the Services as set out in this agreement subject to clause 14.
IT Service Level Agreement.
4.1 Nitel shall provide the Service as follows:
4.1.1 Monday to Friday – from 9:00 am to 5:30 pm (Customer’s local time)
4.1.2 All public holidays, except Christmas Day, Boxing Day and New Year’s day and January 2nd shall be covered as above.
5 RESPONSE TIMES
Nitel shall use reasonable endeavours to meet the agreed times for Incident resolution, Response Time and Resolution Time, as set out in this Agreement.
6 INCIDENT ESCALATION
If the Incident relates to an abnormal problem Nitel will advise the Customer of this fact within the Resolution time and allow the Customer to decide on the appropriate course of action to rectify the problem.
7 RECORD KEEPING
7.1 Nitel shall maintain a record of all Incidents reported by the Customer. The record will include details of date and time of the first report of an Incident, name of Customer’s representative reporting the incident, description of reported Incident, item of equipment or software affected, name of Nitel’s representative assigned to the Incident, time of arrival if on-site visit required, final diagnosis of Incident, description of rectification, details of any replacement or additional equipment or software components required, date and time of final rectification.
7.2 The Customer shall maintain a record of all Incidents reported to Nitel, the record will include details of the date and time of the first report of an Incident, name of Customer’s representative reporting the Incident, description of reported Incident, item of equipment or software affected, time of arrival if on-site visit required, date and time of final rectification, assessment of Customer’s satisfaction of Nitels’ performance.
8 PERFORMANCE REVIEW
8.1 Representatives of the Customer and Nitel shall meet annually within the duration of the Agreement for the purposes of reviewing the performance of Nitel, the efficiency, effectiveness and convenience of the operating procedures involved for both the Customer and Nitel, Nitel’s assessment of the Customer’s management and monitoring of Incidents, the state of the information technology included in the Scope of this agreement in terms of its efficiency, its appropriateness for the Customer’s future business objectives, its technical capability in comparison to current industry norms, the appropriateness of the standard configuration combinations used in all desktop and network equipment, any other relevant issues
- For the purposes of assessing performance, the meetings will consider, the number of Incidents resolved within the Resolution Time, the knowledge and competence of Nitel’s staff involved in recording and rectifying incidents, the extent of engineering spares carried by Nitel’s representatives when arriving on-site, the speed of response and resolution of each Incident.
- OBLIGATIONS OF NITEL
9.1.1 Nitel shall ensure that all its engineering representatives are fully qualified and experienced in all the Equipment and Software included in the Scope of this agreement
9.1.2 The Customer shall be entitled to inspect, and receive copies on request of Nitel’s Incident records
9.2.1 Nitel shall maintain such engineering spare parts and will use its reasonable endeavours to ensure that all Incidents can be resolved within the Resolution Times described above.
9.2.2 Nitel shall use reasonable endeavours at all times to resolve Incidents within the Resolution Times.
9.2.3 Nitel shall use good quality materials, techniques and standards and execute the contract with care, skill and diligence required in accordance with best practice.
9.2.4 The ability to complete any repair will be subject to the availability of spare parts and other resources but where for reasons beyond its control such resources or spare parts become unavailable, Nitel will use reasonable endeavours to find suitable alternative replacements.
9.2.5 Nitel may, at its own opinion, repair or replace an item of Equipment in whole or in part. The Replacement Unit can be made available to the Customer for up to 2 months whilst the original unit is being repaired. If the diagnosis transpires to be faulty hardware the Customer can be entitled to keep possession of the Replacement Unit for the remainder of the Minimum Contract Period.
9.2.6 Nitel will use reasonable endeavours to carry out its obligations hereunder as speedily as possible, but will not be responsible for any loss, costs or expenses whatsoever arising directly or indirectly from any delays in so doing.
IT Service Level Agreement
9.3.1 Nitel shall respond to Incidents and use its reasonable endeavours to resolve each Incident.
10 OBLIGATIONS OF THE CUSTOMER
10.1.1 The Customer shall be responsible for ensuring that Nitel is kept informed of any changes, additions or disposals of Equipment or Software included in the Scope of this Agreement. Any such changes, additions or disposals shall entitle Nitel to amend the Service Charge provided under this Agreement.
10.1.2 The Customer shall appoint a designated employee and a deputy, whose names shall be given to Nitel, with the sole authority to report Critical Incidents to Nitel such list is attached as Appendix 1. Non Critical Incidents can be reported by email and Nitel will undertake any work required based on that email confirmation subject to.
10.1.3 The Customer shall not unreasonably prevent or restrict Nitel from access to the Equipment or Software for the purposes of resolving an Incident during normal office hours. Any access out of office hours should be arranged between Nitel and the Customer’s designated employee(s).
10.1.4 The Customer shall use reasonable endeavours to maintain consistent configurations of all desktop, network and portable computer equipment and related software that may affect the Equipment. To this end, the Customer and Nitel shall agree in writing on the required configuration combinations.
10.2.1 Nitel will use its reasonable endeavours to ensure that instructions purporting to be from the Customer are indeed from the Customer or a person authorized to act on behalf of the Customer and will be entitled to accept confirmation during the course of any telephone conversation or by receiving an email instruction that the person giving the instruction is authorized to act on behalf and to bind the Customer.
10.2.2 The Customer acknowledges and accepts that it is responsible for ensuring that all information provided to Nitel by the Customer when ordering Service is accurate, complete and not misleading in any way whatsoever and Nitel shall be entitled to accept that such information is accurate, complete and not misleading.
10.2.3 Except as provided in clause 14 and without prejudice to the generality of clause 14 Nitel accepts no liability whatsoever and howsoever arising in respect of the Service or any other additional services provided or terminated or any action taken or not taken in reliance of telephone or email instructions received by Nitel and the Customer shall be responsible for all and any sums payable under these conditions.
10.2.4 In order to provide the responses stated, it is understood that the Customer will require their users to be trained in the normal operation of their systems and be familiar in the routine fault reporting procedures.
10.2.5 All Equipment forming part of this Agreement is to be used with reasonable care and attention and according to the manufacturer’s instructions. It shall not be modified or interfered with in any way. The Customer shall not attach to the Equipment any equipment that is not previously agreed by Nitel.
10.2.6 The Customer shall notify Nitel whenever any of the Equipment is moved to a different address other than the Site Address. Nitel then reserves the right to remove such items of Equipment from the list in Appendix 1 and re-pay to the Customer the fraction of the Service Charge applicable to that equipment, with due regard to the fraction of the Service Charge that is un-expired.
10.2.7 The Customer will allow Nitel to remove the Equipment to Nitel’s workshop for repair where this is necessary in the opinion of Nitel’s representative.
10.2.8 The Customer shall allow Nitel’s representatives at all reasonable times to inspect the Equipment and for that purpose and for the purpose of servicing the same to enter upon the premises in which the Equipment is kept and to afford them reasonable and proper facilities for such inspection and servicing.
10.2.9 When Nitel’s personnel are on any Site Address or any other site relating to the Customer, the Customer shall retain responsibility for the buildings and facilities. To this extent all Health and Safety obligations remain the responsibility of the Customer, including the issuing in advance of any guidelines to Nitel’s personnel.
10.2.10 The Customer shall be responsible for all damage and loss caused to Nitel by misuse of the Equipment other than by acts or omissions of Nitel its employees agents and/or subcontractors.
11A PRICING AND SERVICE PROVISION
11A.1 The pricing for the Service is set out in Section C
11A.2 Labour and Callout charges
Work undertaken by Nitel on behalf of the Customer that is not included in this Agreement will attract Labour and Callout charges in accordance with the following matrix:
Mon – Fri
0900 to 1700
Mon – Fri
1700 to 2400
1.5 x Standard
0900 to 1700
1.5 x Standard
1700 to 2400
2 x Standard
0900 to 1700
2 x Standard
Mon – Sat
2400 to 0900
3 x Standard
0900 to 1700
3 x Standard
Out of contracted hours
All other times
3 x Standard
Standard hourly rate at the Commencement Date is shown in Section C with a one hour minimum charge.
11A.3 The first payment for Service Charge is due on the Commencement Date. Invoices for Labour and Callout will be raised when the work has been completed and payment in full will become due 14 days from the date of the invoice.
11A.4 The Service Charge does not include materials or any other expense necessary to repair damage to the Equipment caused by relocation, accident, abuse or electrical current fluctuation or arising from acts of third parties or any force of nature, nor failure by the Customer’s employees to comply strictly with the operating instructions for the Equipment or any amendment thereto made by Nitel. The Customer shall promptly pay for such repairs at Nitel’s Standard Charges.
11A.1.1 When the Customer makes a request for Service which transpires to be the result of incorrect operation by the Customer, or changes made to the configuration by the Customer, or is Service not included in this Agreement, the Customer agrees to pay Nitel the additional charges as specified in this section 11.
Subject to clause 16, this Agreement is for the Minimum Contract Period and can only be terminated if:
11B.1.1 notice is given twelve calendar months before the End Date or;
11B.1.2 notice is given at any time after the End Date.
IT Service Level Agreement
11B.2 Subject to clause 17, either party shall be entitled to terminate this Agreement if:
11B.2.1 Either party commits a material breach of this Agreement and where such breach is capable of remedy, no remedy has been affected within 14 days of the notification to the other party of the said breach.
11B.2.2 If the Customer petitions for bankruptcy or is adjudicated bankrupt or if an administrator or receiver is appointed over the Customer's business or has presented or presents a petition for winding up or enters into liquidation (except for the purposes of amalgamation or reconstruction) or makes an assignment for the benefit of creditors or if the Customer defaults in payment for any sum due to Nitel or otherwise fails to fulfil its obligations hereunder then Nitel shall have the right to terminate this Agreement forthwith without prejudice to any other remedies Nitel may have.
11B.1.3. If Nitel petitions for bankruptcy or is adjudicated bankrupt or if an administrator or receiver is appointed over Nitel’s business or has presented or presents a petition for winding up or enters into liquidation (except for the purposes of amalgamation or reconstruction) or makes an assignment for the benefit of creditors or if Nitel defaults in payment for any sum due to the Customer or otherwise fails to fulfil its obligations hereunder then the Customer shall have the right to terminate this Agreement forthwith without prejudice to any other remedies the Customer may have.
11B.1.4 Either party issues written notice of termination 30 days prior to the end of any calendar month.
12 CONTACT DETAILS
13.1 This Agreement is personal to the Customer and cannot be assigned, transferred or pledged without the express written authority of Nitel.
13.2 Any variations to any of the terms of this Agreement shall not be effective unless agreed in writing by Nitel.
13.3 Nitel may at its sole discretion assign, pledge or transfer this Agreement or any of its rights or obligations herein. Nitel may, without the need for the consent of the Customer, sub-let the Agreement or any part thereof, providing always that such action does not relieve Nitel from any of its obligations under this Agreement.
13.4 If at any time the Equipment or the Software is repaired or otherwise tampered with by anyone other than Nitel then additional charges may be incurred in accordance with clause 11 in order to rectify any problems. If in the opinion of Nitel the Equipment is beyond reasonable repair then Nitel at its absolute discretion may terminate the provision of Service under this Agreement without any refund to the Customer.
13.5 The charges detailed in this Agreement are due and payable on the date of each invoice and if any charges remain unpaid 30 days from the due date interest will be charged at the rate of 1.5% per month and added to the amount due. If due payment under Section 11 is left unpaid after a period of 90 days, then Nitel has the right to terminate the contract with immediate effect and reclaim any monies owed at the Standard Charges. Such termination shall be served on the Customer in writing subject to clause16.
13.6 Nitel and the Customer shall treat as confidential any information obtained under this contract and shall not divulge the same to any third party without the consent of the other party.
13.7 Nitel shall always be afforded reasonable opportunity to correct any deficiency in the contract before being in breach of its obligations under the contract
13.8 In no circumstances shall Nitel be liable for any loss of profits, business, revenue goodwill or anticipated savings or any consequential loss whatsoever.
13.9 Subject to clause 11, in the event that the Customer and Nitel have not signed new terms at the End Date then this Agreement can be extended for as many Renewal Extensions as is required between the parties. Nitel agrees to continue providing the Service and the Customer agrees to continue paying the Charges throughout the Renewal Extension.
13.10 Where more than one person is named as the Customer, liability under this Agreement and/or any additional sums relating to Service shall be joint and several.
13.11 For our general terms and conditions of business please refer to our website www.nitelci.com
14 EXCLUSION AND LIMITATION OF LIABILITY
14.1 The following provisions set out Nitel’s entire liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Customer in respect of any breach of contract, misrepresentation, tortuous act or omission including negligence or otherwise arising under or in connection with the provision of the Service. The Customer’s attention in particular is drawn to these provisions.
14.2 Nitel does not exclude or restrict liability for death or personal injury resulting from its own negligence.
14.3 Except to the extent provided in this Agreement or any other document or agreement between the parties, Nitel shall not be liable to the Customer or to any other person for any loss or damage whatsoever and howsoever caused arising directly or indirectly in connection with the provision of Service except as provided in clause 14.2 above. Whilst Nitel will use its reasonable endeavours to maintain the quality of the Service and ensure that the Service is available at all times it makes no representation or warranty in relation thereto.
14.4 Without prejudice to the generality of 14.2 or 14.3, Nitel shall not be liable to the Customer or to any other person for:
14.4.1 any defect in, poor quality of, unavailability, interruption or discontinuance of the Service or any website or e-mail address (and without prejudice to the generality of the foregoing and 14.2) Nitel shall in no circumstances be liable for any defect in, poor quality of, unavailability or interruption unless otherwise specified in this Agreement.
14.4.2 any loss of profits, business revenue, goodwill or anticipated savings, or any type of special, indirect or consequential loss (including but not limited to loss or damage to data, equipment or property even if in the care, custody or control of Nitel) whether direct, indirect, foreseeable or unforeseeable.
14.4.3 any use of the Service by or activities of the Customer, in particular but not limited to any acts which under the laws of any jurisdiction infringe any third party’s intellectual property rights (including the use of any domain name), infringe obscenity laws, constitute threats, are in any way defamatory or are illegal or give rise to any liability in any way.
14.5 Nitel is not responsible for maintaining any insurance cover of any nature to cover any loss by the Customer or any other party arising from the provision or unavailability of the Service or otherwise and any such insurance cover shall be responsibility of the Customer.
14.6 If any exclusion or limitation of liability contained in this clause is invalid and Nitel becomes liable for any loss or damage, the Customer (acknowledging that Nitel is not able to evaluate any potential loss to the Customer) agrees that Nitel’s liability shall in the event be limited to the Service Charges payable by the Customer for the Minimum Contract Period for any one event or series of events.
14.7 Each provision of this clause shall operate independently of each other provision of this clause.
14.8 The Customer agrees to indemnify Nitel and hold Nitel harmless in respect of all costs, damages, awards and expenses and professional fees of any kind (without limit) arising from or in connection with any claim brought against Nitel by any third party located in any jurisdiction arising from any use of the Service provided to the Customer (by either the Customer or any other party) constituting any unlawful act or otherwise giving rise to any liability. The Customer shall immediately notify Nitel in writing of any such claims of which it becomes aware. The Customer further agrees to offer reasonable assistance to Nitel in defending such claims at the sole expense of the Customer.
15 FORCE MAJEURE
Nitel shall not be liable in respect of any breach of the Agreement due to any cause beyond its reasonable control including (but without limitation): act of God, pandemic, inclement weather, lightning, flood or fire; industrial actions or lockouts; the act or omission of Government, highways authorities, or any other competent authority; war or armed conflict, military operations, vandalism or riot; the act or omission of any other party (including any other party that provides any part of the Service or upon which Nitel relies in order to provide any part of the Service) and national and/or civil emergencies.
16.1 Any notice or other communication required to be given or served for the purpose of the Agreement except where otherwise provided shall be in writing and shall be deemed to have been duly given and served if sent by post, facsimile or delivered by hand. Notices shall be deemed received 48 hours after posting or transmitting.
16.2 The Customers address for correspondence shall be the contact address as specified in this Agreement or communicated by the Customer when the order for Service made by telephone or email or the Customers last known address or the businesses registered address.
16.3 Nitel’s address for correspondence shall be Nitel House, Coie Lane, St Helier, Jersey, JE2 4LW
16.4 Nitel’s facsimile number is 01534 727689
16.1.1 A notice period of twelve months is required to terminate this Agreement in accordance with clause 17.
IT Service Level Agreement
16.2.1 A notice period of three months is required to terminate this Agreement in accordance with clause 11.
If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected.
18 ENTIRE AGREEMENT
The terms and conditions of this Agreement supersede all prior oral and written communications regarding the Service and contain the whole agreement between the parties relating to the Service, unless specifically stated otherwise in these terms and conditions or specifically otherwise agreed in writing.
19 GOVERNING LAW
This agreement shall be governed by the laws of the island of Jersey and the parties submit to the exclusive jurisdiction of that court.
20 DATA PROTECTION
21.1 The Company will not without the Customer’s written consent disclose information provided to it by the Customer for the purposes of the Agreement to anyone other than members of the Nitel group or in order for it to be able to provide the Customer with the Service.
21.2 The Company adheres to strict data protection policies in accordance with the Data Protection (Jersey) Law 2005.
21.3 The Company reserves the right to disclose the name, address, telephone and/or facsimile numbers and/or email addresses of the Customer to any judicial, law enforcement, regulatory or governmental body or agency where required by applicable law or by the Order of a court or other body of competent jurisdiction to do so.
Nitel Limited – Terms & Conditions January 2019
The terms of this Agreement shall include both the terms and conditions set out herein and the information in the sections A to D as set out overleaf.
- SERVICES TERMS AND CONDITIONS
These terms and conditions cover the provision by Nitel Limited, Nitel House, Coie Lane, St Helier, Jersey JE2 4LW(“us”, “we”, or “our”, and including our successors and permitted assigns) of the services specified in each order from (the “services”) with, and the receipt of those services by, the customer specified in each such order form (“you” or “your”, and including you successors and permitted assigns). Any hosted Telephony Service shall be provided on the terms and conditions set out below under the heading “Hosted Telephony Service” The Services Terms and Conditions and the Hosted Telephony Service terms and conditions together with the terms and conditions on www.nitelci.com and the order form confirmed overleaf are referred to together as the “Agreement” below.
2 SCOPE OF SERVICES
If you do not pay us directly for the services that means we are not providing the services to you (even if they are sold in our name), but are acting as a referral agent to a third party who is responsible for the provision of those services and we will not be liable for any loss or damage you incur in connection with those services or such a third party. Where we are a reseller of other services we may rely on our third party suppliers to provide those services to us for us to provide them to you. Where our third party suppliers from time to time offer us a service level agreement applicable to specified services, we will also apply a service level agreement between us and you for the same services. Copies of those service level agreements are available upon request from us.
3 CHANGES TO THESE TERMS
These terms and conditions, including the service level agreements agreed between us and you and the charges for the Services may be changed by us from time to time by giving at least 30 days prior written notice to you or by posting such changes on www.nitelci.com at least 30 days prior to them taking effect which shall constitute notice for the purposes of this clause 4.
4 SERVICES AND USE
We will provide you with items and things which we consider necessary as part of the services but otherwise you must provide all other items and things relating to the services. While risk will pass to you upon any delivery to you, title in items and things provided by or on behalf of us at all times remains with us. You must ensure that you do not intentionally or negligently damage, destroy or encumber any item or thing provided to us by or on behalf of us or any other item or thing used by us in connection with the services. You will not introduce or allow to be introduced into any item or thing provided by or on behalf of us any virus or other harmful or effecting item or thing. You will not use or allow the use of any of the services in any manner which is illegal, inappropriate, annoying, indecent, obscene, abusive offensive or causes any loss or damage. You will not resell or otherwise make any of the services available to any third party without our prior written consent. You will indemnify us for any claim, loss, damage or expense arising in any way in connection with any content (including data or information) introduced by or on behalf of you in relation to any services. You are responsible for making sure the service is working how you need it to work on your PC or server and are you are responsible for contacting us if you are unsure or if a warning appears, we will not take responsibility if you ignore these notices or warnings, including whether data is or is not being backed up.
We will licence you to use intellectual property rights strictly as necessary for you to receive the services and on a non-exclusive, revocable, non-transferrable basis within the Channel Islands and for the duration of your contract with us. You must not allow any copying, modification, adaptation, reverse engineering or other dealing in relation to those intellectual property rights, nor remove any proprietary or other notices, unless you have our prior written consent to do so. Where the services include other products, you also agree to comply with the terms and conditions for such software, and to the agreement between that supplier and you, both being attached to these terms and conditions.
You agree that the provision of the services by us is subject to the payment by you of the charges specified in each order form applicable for the services, including services ordered by email. You will pay for the number of users or services you are using at each month end for that invoice period, with a minimum invoice value of the services you have signed up for on your contract for the length of that contract. Charges for the Hosted Telephony Service will be made in accordance with the Hosted Telephony terms and conditions below. We may charge you interest on any overdue amounts at the rate of four per cent per annum above the Bank of England Base Rate from time to time from the overdue date until payment is received by us (whether before or after any judgment). All charges are without GST and other taxes on the services included and GST and each other tax on the services is payable by you. The charges also do not include any packaging, delivery and insurance costs to be incurred by or on behalf of us on your behalf (which will also be payable by you).
- DURATION AND TERMINATION
7.1 Except for any one off delivery, each Service (whether specified in an order form or notified by you to us including email) lasts for a minimum period of months shown in the schdule from the 1st day of the month that the order or notification is placed or the customer starts using the relevant service (the ‘Initial Term’), unless terminated in accordance with this Agreement. At the expiry of the Initial Term and of each renewal period (each a ‘Renewal Period’), the Services shall automatically renew for further renewal period subject to early termination under this Agreement.
- Each party may terminate this Agreement on not less than 365 days’ prior written notice to the other. Such notice must be served within the last 30 days of the Initial Term or the Renewal Term (as the case may be).
- Without prejudice to their other rights under this Agreement either party may terminate this Agreement with immediate effect if:
7.3.1 The other party has committed a material breach of this Agreement which is incapable of remedy or in the case of a remediable breach, the other party fails to remedy within 30 days of having been requested to do so by the non-defaulting party; or
7.3.2 The other party ceases trading, becomes bankrupt or insolvent or any insolvency proceedings are begun against it including the appointment of a receiver (including an administrative receiver) over all or any of its assets.
- Without prejudice to our other rights, we will have the right with immediate effect to terminate this Agreement by notice in writing where you fail to make any payment when it becomes due or are abusive either verbally or physically to any member of our staff or contractors.
- On termination of this Agreement, you will ensure that we are supplied with prompt access to remove any equipment and Service Equipment supplied. Where the Agreement is terminated other than for breach by us, you will be responsible for the cost of de-installation and collection of the equipment and Service Equipment by us and will pay us such costs on demand. Any license granted under this Agreement will terminate with immediate effect.
- On termination of this Agreement, any consequential reprogramming of your Equipment (as defined below) will be your responsibility and at your cost.
8 TERMINATION FOR INSOLVENCY
You or we may end the services with immediate effect by giving written notice to us or you (as applicable) at any time after we or you (as applicable) have a winding up petition presented against us or you (as applicable) or enters into liquidation, compounds with or makes any arrangement with our or you creditors (as applicable), has a receiver, manager, administrative receiver or administrator appointed over the whole or substantially the whole of our or your assets (as applicable) or makes a general assignment for the benefit of our or your creditors (as applicable), has an administration petition presented or administration application made against us or you (as applicable) or a notice of intention to appoint an administrator has been given to any person or if we or you (as applicable) cease or threaten to cease to carry on business or make any material change to that business, or if we or you (as applicable) suffer any analogous process under any law.
9 SUSPENSION AND TERMINATION
We may end services or suspend them for a period of up to twenty (20) working days at our option if you do not pay any amount when due, or if our suppliers cease providing the relevant services to us and we cannot obtain those services immediately on the same pricing and other basis from another supplier. We may suspend services for operational or maintenance purposes provided that we minimise the period of suspension as far as practicable. Any suspension by us under this clause 10 does not entitle you to terminate the Agreement which remains valid. The Services are dependent on relevant services being provided to us by our suppliers.
10 EFFECTS OF TERMINATION
Termination does not affect any accrued rights and obligations at the time of termination. All property (tangible or intangible and including confidential information) belonging to you or us must be returned promptly to us or you (as applicable) following termination. We will use commercially reasonable endeavours to provide support within the scope of the services to you in relation to such termination.
11 WARRANTIES AND LIABILITIES
You agree that:
- The services are provided on an “as is” basis and that all warranties, conditions and representations expressed or implied by contract, statute or otherwise (including that the services are of a satisfactory quality or fit for purpose) are excluded;
- We will not be liable to you (whether for breach of contract, negligence or otherwise) for any loss or damage which is indirect or consequential or for any loss of revenue, data, goodwill or anticipated savings, even if we have been advised of the possibility of them being incurred.
- We will not be liable to you for any delay in, or failure of, the services due to any occurrence, event or cause beyond our reasonable control (including telecommunications and other means of communication, the internet, data security, third party websites and goods and services, information on our website being accurate, complete and up-to-date, or acts or omissions of agents or third parties other than our relevant suppliers); and
- Our liability to you (whether for breach of contract, negligence or otherwise) will be limited to the amount of the charges for the services paid by you to us in the 3 months preceding the cause of action arising.
12 FURTHER PROVISIONS REGARDING LIABILITY
Nothing shall exclude or limit our liability for death or personal injury caused by our negligence, for fraud or deceit, or a breach of section 12 of the Supply of Goods and Services (Jersey) Law 2009. The invalidity, illegality or unenforceability of any term or condition will not affect or impair the continuation in force of the remainder of these terms and conditions.
You and we will treat as confidential all information of a confidential nature about us or you (as applicable) and will not disclose such information to any third person, except to employees or professional advisers (or those of any permitted subcontractor) who need to know such information, with the prior written consent of us or you (as applicable), or as required by applicable law or regulation (or an authority with the requisite power), and provided that reasonable endeavours are used to ensure that those recipients agree to comply with substantially equivalent provisions to protect that confidential information. This restriction shall not apply to information which is lawfully obtained from a third party, which was already known prior to the disclosure, which was independently developed without reference to the confidential information, or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this restriction). Neither you or we may refer to the fact or subject matter of these terms and conditions or any order form in any publicity or advertising without first obtaining the prior written consent of the other.
14 ASSIGNMENT, SUBCONTRACTING AND THE THIRD PARTY RIGHTS
We may assign or subcontract any of our rights or obligations to any third party from time to time without your consent (such consent hereby automatically being given). No third party will have any right to enforce or rely upon any provision of these terms and conditions.
15 ENTIRE AGREEMENT, VARIATIONS AND RELATIONSHIP
These terms and conditions as updated pursuant to clause 2, together with each order form, constitute the entire agreement, and superseded any previous agreements, between us and you relating to the subject matter of these terms and conditions (and each such order). Except as expressly provided otherwise in these terms and conditions, a variation to these terms and conditions is valid only if it is in writing and signed by or on behalf of you and us. Nothing in these terms and conditions creates, or will be deemed to create, a partnership between you and us.
16 CUMULATIVE RIGHTS AND NO WAIVER
The rights and remedies contained in these terms and conditions are exclusive and not cumulative of rights and remedies provided by law. A failure to exercise or delay in exercising a right or remedy provided by these terms and conditions does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by these terms and conditions prevents a further exercise of the right or remedy or the exercise of another right or remedy.
Any notice under or in connection with these terms and conditions must be in writing and shall be delivered in person, sent by registered mail as appropriate, properly posted and fully pre-paid in an envelope properly addressed or sent by facsimile or e-mail to the respective addressee at its usual place of business or to such other address, facsimile number or e-mail address as may from time to time be designated by notice hereunder. Any such notice shall be considered to have been received on the next working day following delivery, facsimile or e-mailing or in any other event within seven (7) days after it was mailed in the manner provided under this clause.
18 COMPLIANCE WITH LAWS, GOVERNING LAW AND JURISDICTION
You agree to comply with all applicable laws and regulations in connection with these terms and conditions and the performance of your obligations under them (including in relation to data protection, interception and monitoring of communications, email marketing, and computer misuse). These terms and conditions, and all matters arising from or in connection with them, shall be governed by and construed in accordance with the laws of Jersey. Any dispute which may arise between the parties concerning these Terms shall be determined by the Jersey Courts and the parties hereby submit to the non-exclusive jurisdiction of the Jersey Courts for such purpose.
19 HOSTED TELEPHONY TERMS AND CONDITIONS
Where the Services ordered by you include the provision of “Nitel IP Hosted Platform”, and or IP Telephony services, and IP Trunking (“Hosted Telephony Service”) the following additional terms and conditions shall apply:
In addition to the definitions set out above the following terms will have the following meanings:
- “Your Equipment” means any telecommunications apparatus or system owned controlled, or housed by you;
- ““Nitel IP Hosted Platform”” means a telephone service in which an IP-based PBX is located in the telephone company's facilities or it’s configured to work from a data center provider as a cloud based software. It connects to the customer via the xDSL rather than by telephone wires.
- “PBX” means (private branch exchange) is a telephone system within an enterprise that switches calls between enterprise users on local lines while allowing all users to share a certain number of external phone lines.
- “SIP trunking” is a Voice over Internet Protocol (VoIP) and streaming media service based on the Session Initiation Protocol (SIP) by which Internet telephony service providers (ITSPs) deliver telephone services and unified communications to customers equipped with SIP-based private branch exchange (IP-PBX)
- “xDSL” Means the provision of any Digital Subscriber Line
- “Service Equipment” means any equipment relating to the Hosted Telephony Service including but not limited to; too include any data collection, and call routing devices, routers, switches, handsets, or other telecommunication equipment we may from time to time install at your premises for the purposes of providing the Service but excluding all pre-existing equipment owned by you and equipment owned and/or supplied by third parties;
- “PROVIDER’ means Jersey Telecom, Cable & Wireless, Sure or other.
- THE HOSTED TELEPHONY SERVICE
- We shall provide the Hosted Telephony Service to you and you agree to use the Hosted Telephony Service on these terms and conditions.
- The Hosted Telephony Service will be provided with the reasonable skill and care of a competent telecommunications provider.
- We will use reasonable endeavours to ensure that the Hosted Telephony Service is available for use by you but owing to the nature of telecommunications networks, it is impossible to provide a fault free Service. The quality of the Hosted Telephony Service depends on both the quality and availability of the network to which you are connected and also on other telecommunications networks to which the person being called is connected. We will not accept any responsibility or liability to you or any third party in the event of a failure by us to meet our obligations under this Agreement.
- We will respond to any reported fault with the Hosted Telephony Service as soon as reasonably practicable during normal working hours and will use all reasonable endeavours to correct any fault within our control.
- Where “Nitel IP Hosted Platform” are to be supplied, an arrangement to provide a Broadband connection must be made by you, either through us or through an approved supplier of suitable broadband services (in accordance with criteria to be provided by us.) This will generally require the provision of a single analogue PROVIDER line by you.
- We will not be responsible for any failure to deliver the Hosted Telephony Service when the obligation set out in Clause 24.1 has not been fulfilled.
- We will deliver and install any Service Equipment required for provision of the Hosted Telephony Service at your Premises or remotely. We will take all reasonable steps to deliver and install the Service Equipment by such date as is advised, however any delivery date specified will be an estimate only. We do not accept any liability for failure to meet the delivery date.
- The Service Equipment will remain our property at all times, except where you have purchased the Service Equipment or rented the Service Equipment from a third party, or entered into a separate agreement to obtain the Service Equipment, or until such time, as the Service Equipment has been paid for in full. You must not add to, modify or in any way interfere with the Service Equipment, nor allow anyone else other than someone authorised by us to do so. You will be liable for any loss or damage to the Service Equipment (including all outstanding rental, hire or lease payments due in respect of the Service Equipment) and a one-off fee is due in respect of all broken hardware in the amount published on www.nitelci.com (from time to time) except where such damage is due to fair wear and tear or is caused by us or anyone acting on our behalf. A one-off fee is due in respect of all broken hardware.
- We grant you a non-exclusive, non-transferable license to use the Software solely in respect of the provision of the Hosted Telephony Service.
- Where access to the Hosted Telephony Service is facilitated through third party provider number porting, you authorise us to have the numbers from the third party provider lines listed in the Order Form routed by us instead of the third party provider and to forward appropriate details of your porting application for the Hosted Telephony Service to the third party provider. You will receive advance notification of the change of service from the provider to us. Our ability to provide the Hosted Telephony Service is subject to the provider porting the numbers we will not be liable for any failure or delay in the Hosted Telephony Service where the provider fails to port the numbers effectively.
- USE OF THE HOSTED TELEPHONY SERVICE
- During the Term of this Agreement, you will not use another telecommunications service provider or network operator to provide any indirect, or direct access telephony service other that for use for analogue provision or for alarm services etc
- You will ensure that your Equipment is in proper working order and complies with all applicable standards and approvals for network connection. You will not do anything that may damage or affect the operation of the telecommunications network.
- You will ensure that the Hosted Telephony Service is used for the purpose for which it has been authorized and is not used either by you or any third party for any fraudulent, criminal, defamatory, offensive, obscene or abusive purpose or so as to constitute a violation or infringement of our rights or any third party. You undertake to comply with all applicable laws and regulations and all our reasonable instructions in relation to its use of the Hosted Telephony Service and the Service Equipment
- If the network is to be used to carry alarm or fax signals internally or externally, then we will not accept responsibility for lack of service or failure to deliver an alarm signal due to a) the network going down; b) suspension of your account or c) reasons outside our reasonable control including but not limited to any technical failure of the network; because the network is being tested, modified or maintained or if access to the network is denied.
- If the network is being used for business purposes then you will indemnify us against any threat or any claim by a third party because the Hosted Telephony Service was faulty or cannot be used by them.
- We will have the right to recover all reasonable costs incurred in investigating or remedying any fault with the Hosted Telephony Service where it is caused by your negligence or default or by your Equipment or where the fault does not lie with us or any Service Equipment.
- In using the Hosted Telephony Service you acknowledge that internal directory details may be visible to other users on the network. You will not use any data on the Hosted Telephony Network in an appropriate manner.
- You will pay all charges relating to the charges for calls made through the Hosted Telephony Service as are set out in our tariff current from time to time (a copy of which is available on request). All prices are exclusive of GST and all prices are subject to increase upon us giving not less than 30 days’ prior written notice to you.
- You will pay all sums due to us under these terms and conditions in full without any set off whatsoever.
- You will be invoiced for charges under these terms and conditions plus GST. Payment is due within 14 working days of the invoice date by direct debit or such other payment method as we may agree.
- The time of payment of all sums due to us under these terms and conditions will be of the essence. If payment in full is not received on the due date, we will be entitled to charge interest at a rate of 4% per annum above the base rate of the Bank of England on any unpaid overdue balance (calculated on a daily basis).
- All charges payable under these terms and conditions will be calculated by reference to data recorded or logged by us and not by reference to data recorded or logged by you.
- We reserve the right to require you to pay a cash deposit or a bank guarantee to cover charges which we might reasonably expect you to incur under these terms and conditions or may place a limit on your account for charges that can be accumulated by you before payment is received by us in respect of provision of the Hosted Telephony Service and other services.
- We reserve the right to change any tariff where you are in breach of any of these terms and conditions.
- PROVISION OF INFORMATION
- You undertake promptly to provide us free of charge, with all information and cooperation as we may reasonably require enabling us to proceed without interruption with the performance of our obligations under this Agreement.
- We shall keep any data or other information on you that we obtain in the performance of our obligations under these terms and conditions in accordance with relevant data protection legislation and not to use or disclose such information for any unlawful purpose.
- We reserve the right to carry out a credit check against you and may register information about you and your account with credit reference agencies. We may use this information to make credit decisions. This information may also be used to prevent fraud, to trace debtors and to enforce this Agreement.
- Nothing in this Agreement will exclude or restrict our liability for death or personal injury resulting from our negligence or that of our employees or sub-contractors while acting in the course of their employment or engagement or for fraudulent misrepresentation or for any other liability that cannot by law be excluded.
- Subject to 9.1, this Clause sets out our total liability to you if the Hosted Telephony Service is not available for a continuous period of 12 hours or more in any one day and that unavailability is attributable entirely due to our fault and you are unable to plug your telephone or redirect to another broadband or number. In the event of such an event our total liability will be limited to the sum of 5% of the charges incurred in the average month for the previous quarter. Such liability will be paid as a credit against the next bill. Our aggregate liability in respect of all causes of action arising in each calendar year whether in contract, tort or otherwise in connection with these terms and conditions will not exceed 60% of the total charges paid or payable by you for the Hosted Telephony Service in such calendar year or £1000, whichever is the lesser sum.
- We will not be liable to you in contract tort or otherwise including any liability in negligence for any loss of revenue, business, anticipated savings or profit or for any indirect or consequential lost however arising.
- We will not be liable for failure to perform any of its obligations under these terms and conditions if we are prevented from doing so by any circumstances beyond our reasonable control, including, but not limited to the acts or omissions of a third party telecommunications network operator or through your acts, omissions, negligence or default.
- In the event of any failure in the Hosted Telephony Service, we will not be liable to you for any charges incurred by you should you divert your traffic to another service provider and you will continue to pay the charges due under this Agreement for the remainder for the contractual term (subject always to your right to terminate early under this Agreement).
- The provisions of this Clause 29 will continue to apply notwithstanding the termination of this Agreement.
- SUSPENSION OF SERVICE
- We may at our sole discretion elect to suspend with immediate effect the provision of the Hosted Telephony Service until further notice without liability or compensation to you on notifying you either orally (confirming the same in writing) or in writing in the event that:
- You are in breach of any of these terms and conditions;
- You prevent or delay any prearranged maintenance from being carried out;
- We reasonably suspect you of involvement with fraud or attempted fraud in connection with the use of the Hosted Telephony Service;
- We are obliged to do so in order to comply with an order, instruction or request of any government, emergency service organization or other competent authority.
- If we suspend the Hosted Telephony Service then you will reimburse any costs and expenses reasonably incurred as a result of such suspension and/or the Hosted Telephony Services being reinstated.
- If we choose to suspend the Hosted Telephony Service this will not prevent us from also taking other action to terminate the Agreement.
- TELEPHONE NUMBERS
If you are provided with a telephone number (including a code) as part of the provision of the Hosted Telephony Services, then that code and number belongs to us and you will have no right to keep that number nor to sell, dispose or transfer that number at any time. We will use our reasonable efforts to ensure that you are able to keep the number during the period of this Agreement but we reserve the right to change the telephone number on reasonable notice at our sole discretion.