DEFINITIONS AND INTERPRETATION
The following definitions and rules of interpretation apply in this Agreement.
Additional Charges: the charges payable in respect of the Additional Services calculated on a time and materials basis.
Additional Services: any Excluded Services performed by RMC Voice under this Agreement.
Agreement: shall have the meaning under clause 2.1.
Business: shall take the meaning given to “trader” within the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: means the period of 9:00am to 5:00pm on a Business Day. Where Support Services are provided by RMC Voice and such Support Services include “24/7 support”, Business Hours shall be construed accordingly.
Charges: means the charges for the Services as set out in the Order Form (or otherwise as may be agreed between the parties in writing), the Support Fees and any other charges to be paid by the Customer to RMC Voice in accordance with the Order Form and these Conditions.
Commencement Date: the date on which the provision of a particular Service or Services commences, as specified in the Order Form or where later, the date of Installation.
Conditions: these terms and conditions.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer: means the party entering into this Agreement with RMC Voice as identified in the Order Form.
Data Fair Use Policy: means RMC Voice’s fair use policy in respect of the Equipment and Services (which shall include applicable Tariff Limits) as set out within the Order Form or the Promotional Materials (as the case may be) or otherwise as notified to the Customer, as amended from time-to-time.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
Delivery Date: the date for the Delivery of the Equipment, as set out in the Order Form.
Deposit: means any applicable deposit to be paid by the Customer to RMC Voice in respect of the Equipment, as set out within the Order Form.
Equipment: means the Equipment identified within the Order Form or otherwise as notified to the Customer in writing that shall be hired to the Customer as part of the provision of the Services and which, as set out under clause 8 and save in the case of Mobile Services, the Customer shall return to RMC Voice at the end of the Term.
Excluded Causes: means a defect:
in the manufacturer’s design of the Equipment;
in the Equipment that arises as a result of the Customer’s breach of its obligations under the Agreement; and
faulty materials or workmanship in the manufacture of the Equipment;
Excluded Services: any support services required to restore any Fault where such Fault results from or is caused by any of the Excluded Causes.
Fault: a failure on the part of the Equipment (including, where applicable, the Services) to operate in Good Working Order or otherwise in accordance with the terms of this Agreement.
Force Majeure Event: any circumstance not within a party’s reasonable control including, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this definition, or companies in the same group as that party); non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this definition); and interruption or failure of utility service.
General Conditions of Entitlement: means Ofcom’s General Conditions of Entitlement, of which a consolidated version can be found at: https://www.ofcom.org.uk/__data/assets/pdf_file/0021/112692/Consolidated-General-Conditions.pdf.
Good Working Order: the Equipment (including, where applicable, the Services) operates in accordance with any agreed Specification or operating manuals (as the case may be).
Installation Services: means the delivery and installation of the Equipment by RMC Voice or an Installer and Installation and Installed shall be construed accordingly.
Installer: means any third-party authorised by RMC Voice to provide the Installation Services to the Customer on behalf of RMC Voice.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Minimum Term: means the period of 36 months from the Commencement Date or such other period as is specified in the Order Form.
Mobile Services: means any applicable mobile services to be provided by RMC Voice to the Customer, as particularised further within the Order Form.
Network: means electronic communications systems operated by a Networker Provider in order for the Services to operate.
Network Provider: means a third-party provider of telecommunications and associated services.
Order Form: means the covering agreement to which these Conditions are attached, including variables pertaining to these Conditions and which the parties sign to signify their agreement to this Agreement.
Preventative Maintenance Services: means any scheduled and/or ad hoc maintenance services to be carried out by RMC Voice in respect of the Equipment (including, where applicable, the Services) as further particularised within the Order Form or as may otherwise be agreed in writing between the parties.
Promotional Materials: includes but is not limited to, RMC Voice’s website, advertising literature and any documents (including any Proposal) provided to the Customer by RMC Voice.
Proposal: any proposal issued by RMC Voice to the Customer for the supply of the Services.
Reactive Services: means any reactive services to be performed by RMC Voice in the event of a Fault, as set out within Schedule 3.
Renewal Period: has the meaning given in clause 7.2.2.
Risk Period: the period during which the Equipment is at the sole of the risk of the Customer as set out in paragraph 2.2 of Schedule 1.
RMC Voice: means RMC Voice Ltd, a Company registered in England and Wales, (registered number 13370435) whose registered office is at 2 Old Moat Lane, Maghull, England, L31 8ET.
Services: means the services (including the supply of any applicable Equipment) and any Support Services to be provided by RMC Voice to the Customer under the Agreement, which are as detailed within the Order Form and any applicable Proposal.
Service Levels: shall mean the applicable service levels in respect of RMC Voice’s performance of the Support Services which shall, unless otherwise agreed between the parties in writing, shall be those service levels set out within Schedule 3.
Site: the Customer’s premises, as set out in the Order Form.
Small Business Customer: has the meaning given to it in the General Conditions of Entitlement.
Specification: any specification for the Services, including any related data, designs, drawings, images, information, materials, plans or other documentation, that is agreed between the Customer and RMC Voice.
Support Fees: means the fees payable by the Customer to RMC Voice in consideration for the provision of the Support Services, calculated on a time spent basis, as set out within the Order Form.
Support Request: a request made by the Customer in accordance with Schedule 3 for the provision of Reactive Services.
Support Services: means the Preventative Maintenance Services, the Reactive Services and any further support services that may be provided by RMC Voice to the Customer, as set out within the Order Form.
Tariff Limits: means the applicable tariff limit in respect of the Equipment, as specified in the Order Form, the Proposal or the Promotional Materials (as the case may be).
Term: the Minimum Term together with any applicable Renewal Term.
Third-Party Software: any third-party software used or otherwise incorporated within the Services.
Third-Party Terms: any applicable third-party terms and conditions that apply in respect of the Third-Party Software.
Total Loss: where the Equipment is, due to the Customer’s default, determined in RMC Voice’s reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax chargeable in the UK.
Clause, Schedule and paragraph headings shall not affect the interpretation of the Agreement.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provisions.
A reference to writing or written includes email but not fax.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
References to clauses and Schedules are to the clauses and Schedules of these Conditions and references to paragraphs are to paragraphs of the relevant Schedule.
The Schedules form a part of these Conditions and shall have effect as if set out in full in the body of these Conditions.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
The Agreement between RMC Voice and the Customer for the supply of the Services is comprised of the following documents:
the Order Form; and
(Agreement) and, in the event of any conflict between any document under this clause 2, the document first stated above shall prevail.
legal status of the parties
RMC Voice confirms that it is a Business, authorised to enter into the Agreement and supply the Services.
The Customer warrants it is legally set up as a Business, and that any individual(s) executing the Order Form are duly authorised to enter into the Agreement on the Customer’s behalf and bind the Customer in respect of its Obligations under the Agreement.
Where the Customer is a Small Business Customer, the Customer’s specific attention is drawn to:
its enhanced legal rights under the General Conditions of Entitlement; and
clause 6 (Limitation of Liability), clause 7 (Term and Termination) ; and clause 8 (Consequences of Termination) of these Conditions, and in the event of a conflict between the General Conditions of Entitlement and these Conditions, the General Conditions of Entitlement shall prevail.
Unless otherwise specified within the Order Form or agreed in writing between the parties, RMC Voice shall invoice the Customer for the Charges on a monthly basis, such invoices to be payable in accordance with clause 4.4.
The Charges are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer at the rate and in the manner from time to time prescribed by law.
RMC Voice may, by giving notice to the Customer at any time up to five (5) Business Days before the Delivery Date, increase the Charges to reflect any increase that is due to:
any factor beyond RMC Voice’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the Specification; or
any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
The Customer shall pay any and all invoices raised by RMC Voice from time to time in full and in cleared funds within fourteen (14) days of the date of the invoice. Payment shall be made to the bank account nominated in writing by RMC Voice. Time for payment in accordance with this clause is of the essence.
All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
If the Customer fails to make a payment due to RMC Voice under the Agreement by the due date, then, without limiting RMC Voice’s remedies under clause 7, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
The Deposit is a deposit against default by the Customer of payment of any Charges or any loss of or damage caused to the Equipment. The Customer shall, on the date of the Agreement, pay the Deposit to the bank account nominated by RMC Voice. If the Customer fails to pay any applicable Charges in accordance with the terms of the Agreement or causes any loss or damage to the Equipment (in whole or in part), RMC Voice shall be entitled to apply the Deposit against such default, loss or damage. The Customer shall pay to RMC Voice any sums deducted from the Deposit within ten Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within 15 Business Days of the end of the Rental Period.
In the event that the Customer causes any loss or damage to the Equipment (in whole or in part) RMC Voice shall be entitled to levy a charge against the Customer for the full value of the Equipment lost or damaged. Any invoice raised in relation to loss or damage of Equipment shall be paid with fourteen (14) day of the date of the invoice. Upon receipt of payment RMC Voice shall, at its discretion, provide the Customer with replacement Equipment.
delivery and installation
Where required, delivery of the Equipment shall be made by RMC Voice or the Installer. RMC Voice shall use reasonable endeavours to effect delivery by the Delivery Date, provided always that the Delivery Date is an estimate only and time shall not be of the essence in this regard. RMC Voice shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer’s failure to provide RMC Voice with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment. RMC Voice may in advance of the Delivery Date deliver the Equipment by giving reasonable notice of the same to the Customer.
Unless otherwise agreed, Delivery shall be complete on the successful unloading of the Equipment at the Site. Where RMC Voice is to carry out Installation Services in respect of the Equipment, Delivery shall be complete on the completion of those Installation Services.
RMC Voice or an Installer (as the case may be) shall carry out the Installation Services at the Site. The Customer shall procure that a duly authorised representative of the Customer shall be present in order for the Installation Services to take place. Acceptance by such representative of the Installation Services shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by RMC Voice, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
The Customer shall at its sole expense provide to RMC Voice and any Installer:
all requisite materials, facilities, access and suitable working conditions; and
safe and unencumbered access to, movement around and egress from the Site, to enable Delivery and the Installation Services to be carried out safely and expeditiously.
If the Customer fails to accept physical delivery of the Equipment on the Delivery Date, then, except where such failure is caused by RMC Voice’s failure to comply with its obligations under this Agreement:
the Equipment shall be deemed to have been Delivered at 9.00 am on the Delivery Date; and
RMC Voice shall store the Equipment until delivery takes place, and charge the Customer for all related Losses (including insurance) that RMC Voice may suffer as a result.
If ten Business Days after the day on which RMC Voice notified the Customer that the Equipment was ready for delivery the Customer has not taken or accepted actual delivery of them, RMC Voice may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Equipment or charge the Customer for any shortfall below the price of the Equipment.
Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel that or any other instalment.
Limitation of liability
The restrictions on liability in this clause 6 apply to every liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Nothing in this Agreement limits any liability which cannot legally be limited including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973 and section 12 of the Sale of Goods Act 1979 (as the case may be); or
any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
Subject to clause 6.2, RMC Voice’s total liability to the Customer shall not exceed the applicable Charges payable by the Customer to RMC Voice under the Agreement.
Subject to clause 6.2, RMC Voice shall not be liable under this Agreement for any:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
indirect or consequential Loss.
Subject to clause 6.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under this Agreement are, to the fullest extent permitted by law, excluded from this Agreement.
The Customer shall indemnify RMC Voice, keep RMC Voice indemnified and hold RMC Voice harmless for any direct, indirect, consequential and special Losses including loss of profit, revenue, business or goodwill and whether arising in contract, tort (including negligence), misrepresentation or otherwise arising out of or in connection with the performance or non-performance of this Agreement by the Customer howsoever caused.
Term and Termination
The Agreement shall be formed on the date on which the Order Form has been signed by both parties and shall in respect of each individual Service, be effective from the Commencement Date and unless the Agreement for that particular Service is terminated earlier in accordance with this clause 7, shall continue for the Minimum Term.
At the end of the Minimum Term (or any Renewal Period), where the Customer is:
a Small Business Customer, this Agreement shall expire automatically and without the need for further action on the part of either party; or
not a Small Business Customer, unless the Customer has served no less than 3 months’ written notice to terminate on RMC Voice, this Agreement shall automatically continue for a further period equivalent to the Minimum Period (a Renewal Period).
Without affecting any other right or remedy available to it, RMC Voice may terminate the Agreement with immediate effect by giving written notice to the Customer if:
the Customer fails to pay any amount due under this Agreement on the due date for payment;
the Customer commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 Business Days after being notified to do so;
the Customer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
RMC Voice has grounds to suspend the Services under paragraph 3 of Schedule 2;
the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer (being a company);
the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 Business Days;
any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.3.4 to clause 7.3.11 (inclusive);
the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or
the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
For the purposes of clause 7.3.2, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which RMC Voice would otherwise derive from:
a substantial portion of this Agreement; or
any of the obligations set out in Schedule 1 and Schedule 2, over the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
Where the Agreement is terminated by RMC Voice pursuant to this clause 7 or where Customer terminates the Agreement prior to the expiry of the Minimum Term or any applicable Renewal Term, the Customer’s specific attention is drawn to clause 8.2 and the Customer’s responsibility for the payment of applicable Charges had such termination not taken place.
Consequences of termination
On termination of this Agreement, however caused:
RMC Voice’s consent to the Customer’s:
possession of the Equipment; and
use of the Services, shall immediately terminate;
the Customer shall ensure the return of all Equipment to RMC Voice in full working order;
in the event that the Customer fails to return the Equipment within fourteen (14) days of this Agreement being terminated, RMC Voice may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Equipment and for this purpose may enter the Site (or any premises) which the Equipment is located and Installed; and
without prejudice to any other rights or remedies of RMC Voice, the Customer shall pay to RMC Voice on demand:
all Charges and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.6; and
any Losses incurred by RMC Voice in recovering the Equipment or in collecting any sums due under this Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
On termination of this Agreement pursuant to clause 7, without prejudice to any other rights or remedies of RMC Voice, the Customer shall pay to RMC Voice on demand a sum equal to the whole of the Charges that would (but for the termination) have been payable if the Agreement had continued from the date of such demand to the end of the applicable Term.
The sums payable pursuant to clause 8.2 shall be agreed compensation for RMC Voice’s Losses and shall be payable in addition to the sums payable pursuant to clause 8.1.4.
Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
RMC Voice shall not be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from a Force Majeure Event.
RMC Voice shall notify the Customer within a reasonable period of time of any Force Majeure Event and RMC Voice shall use reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
If a Force Majeure Event prevents, hinders or delays RMC Voice’s performance of its obligations for a continuous period of more than thirty days, RMC Voice may terminate the Agreement immediately by giving written notice to the Customer.
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 10.2.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with clause 10; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and RMC Voice is the Processor.
Without prejudice to the generality of 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to RMC Voice and/or lawful collection of the Personal Data by RMC Voice on behalf of the Customer for the duration and purposes of the Agreement.
Without prejudice to the generality of 11.1, RMC Voice shall, in relation to any Personal Data processed in connection with the performance by RMC Voice of its obligations under the Agreement:
process that Personal Data only on the documented written instructions of the Customer unless RMC Voice is required by Data Protection Legislation to otherwise process that Personal Data. Where RMC Voice is relying Data Protection Legislation as the basis for processing Personal Data, RMC Voice shall promptly notify the Customer of this before performing the processing required by Data Protection Legislation unless Data Protection Legislation prohibits RMC Voice from so notifying the Customer;
ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
the Customer or RMC Voice has provided appropriate safeguards in relation to the transfer;
the data subject has enforceable rights and effective legal remedies;
RMC Voice complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
RMC Voice complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a Personal Data Breach;
at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Data Protection Legislation store the Personal Data; and
maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
The Customer consents to RMC Voice appointing a third-party processor of Personal Data under this agreement. RMC Voice confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and in either case which RMC Voice confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and RMC Voice, RMC Voice shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11, subject always to clause 6.
All Intellectual Property Rights subsisting in any Equipment and/or Services supplied to the Customer by or on behalf of RMC Voice arising out of or in connection with the Agreement shall remain vested in and belong to RMC Voice absolutely.
RMC Voice makes no warranty and provides no assurance to the Customer that the Customer’s use of the Equipment and/or the Services shall not breach the rights (including Intellectual Property Rights) of any third parties.
Assignment and other dealings. This Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No partnership or agency.
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Further assurance. Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
Third Party Rights.
Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email to the address specified in the Order Form.
Any notice or communication shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, where Business Hours resume.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
If any provision or part-provision of this Agreement is deemed deleted under clause 13.11.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Governing law. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
Schedule 1 – SUPPLY OFthe EQUIPMENT
Where the Order Form specifies that the applicable Services shall include the hire of any Equipment, RMC Voice shall hire out the Equipment to the Customer for use in respect of those Services subject to the terms and conditions of the Agreement.
RMC Voice shall not, other than in the exercise of its rights under the Agreement or applicable law, interfere with the Customer’s quiet possession of the Equipment.
Title, risk and insurance
The Equipment shall at all times remain the property of RMC Voice, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the Agreement), except, in the case of Mobile Services (or otherwise as agreed in writing between the parties) where the Customer purchases the Equipment from RMC Voice under the Agreement. In such circumstances, title to the Equipment shall only pass to the Customer once the Customer has paid to RMC Voice all applicable Charges in respect of that Equipment and any associated Services.
The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer once the Equipment has been Installed, or on Delivery, where the Equipment has been Delivered but the Installation Services are being carried out separately. The Equipment shall remain at the sole risk of the Customer during the Term and any further term during which the Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Equipment is redelivered to RMC Voice or title to the Equipment passes to the Customer under paragraph 2.1. During the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as RMC Voice may from time to time nominate in writing;
insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as RMC Voice may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as RMC Voice may from time to time consider reasonably necessary and advise to the Customer.
All insurance policies procured by the Customer shall be endorsed to provide RMC Voice with at least twenty Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall on RMC Voice’s request name RMC Voice on the policies as a loss payee in relation to any claim relating to the Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
The Customer shall give immediate written notice to RMC Voice in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment.
If the Customer fails to effect or maintain any of the insurances required under this Agreement, RMC Voice shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to RMC Voice and proof of premium payment to RMC Voice to confirm the insurance arrangements.
The Customer shall during the Term:
ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by RMC Voice;
ensure that any and all Equipment provided by RMC Voice is adequately insured (by the Customer) to its full resale value and that any relevant insurance documents are made available to RMC Voice upon request;
take such steps (including compliance with all safety and usage instructions provided by RMC Voice) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being used;
maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment without the prior written consent of RMC Voice unless the component (or components) is (or are) replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved or advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in RMC Voice immediately on Installation;
keep RMC Voice fully informed of all material matters relating to the Equipment;
where the Equipment is fixed at the Site, keep the Equipment at all times at the Site and not move or attempt to move any part of the Equipment to any other location without RMC Voice’s prior written consent;
permit RMC Voice or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on the Site (or any premises) at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
maintain operating and maintenance records of the Equipment and make copies of such records readily available to RMC Voice, together with such additional information as RMC Voice may reasonably require;
not, without the prior written consent of RMC Voice, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
not without the prior written consent of RMC Voice, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building;
not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of RMC Voice in the Equipment;
not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify RMC Voice and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify RMC Voice on demand against all Losses incurred as a result of such confiscation;
not use the Equipment for any unlawful purpose;
ensure that at all times the Equipment remains identifiable as being RMC Voice’s property; deliver up the Equipment at the end of the Term or on earlier termination of this Agreement at such address as RMC Voice requires, or if necessary allow RMC Voice or its representatives access to the Site (or any premises) where the Equipment is located for the purpose of removing the Equipment; and
not do or permit to be done anything which could invalidate the insurances referred to in paragraph 2 and paragraph 3.1.2 of this Schedule.
The Customer acknowledges that RMC Voice shall not be responsible for any Loss of or to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer shall indemnify RMC Voice in full against all Losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by RMC Voice arising out of, or in connection with any failure by the Customer to comply with the terms of this Agreement.
RMC Voice warrants that the Equipment shall conform to its Specification (as made available by RMC Voice) in all material respects, be of satisfactory quality and fit for any purpose held out by RMC Voice. RMC Voice shall use reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself within twelve months from Delivery, provided that:
the Customer notifies RMC Voice of any defect in writing within five Business Days of the defect occurring or of becoming aware of the defect;
RMC Voice is permitted to make a full examination of the alleged defect;
the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than RMC Voice’s authorised personnel;
the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and
the defect is directly attributable to defective material, workmanship or design.
Insofar as the Equipment comprises or contains equipment or components which werenot manufactured or produced by RMC Voice, the Customer shall be entitled only to such warranty or other benefit as RMC Voice has received from the manufacturer.
If RMC Voice fails to remedy any material defect in the Equipment in accordance with paragraph 4.1, RMC Voice shall, at the Customer’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Charges payable during the remaining term of the agreement and, if relevant, return any Deposit (or any part of it).
SCHEDULE 2 – SUPPLY OF THE SERVICES
In providing the Services, RMC Voice shall use reasonable care and skill that may be expected from a competent provider of the Services and shall take reasonable steps in order to ensure that the Services remain fault free and uninterrupted so far as is reasonably practicable. However, for the avoidance of doubt, RMC Voice makes no warranty and provides the Customer with no assurance that the Services will remain fault free and uninterrupted throughout the Term. The Customer expressly acknowledges that, given the nature of the Services, it is impossible for RMC Voice to provide a completely fault free Service.
RMC Voice may, at is discretion, amend the Services in order to comply with any applicable laws and regulations directly affecting those Services, providing always that any such amendment under this paragraph 1.2 will not materially affect the performance of those Services.
The Customer agrees and acknowledges that, in some instances (including by not limited to wholesale line rentals), unavoidable delays make take place in the provision of the Services and, in particular, the transfer of the Services from a third-party supplier to RMC Voice. It is the Customer’s responsibility to ensure that is has appropriate consents in place from its existing suppliers in order for the RMC Voice to supply the Services and RMC Voice shall have no responsibility for any Losses caused due to any delays under this paragraph 1.3.
Where specified in the Order Form or otherwise as agreed between the parties, RMC Voice shall use reasonable endeavours to provide the Customer with access to any applicable Networks; however, such Networks are not controlled by RMC Voice and RMC Voice shall have no responsibility whatsoever for any Losses suffered by the Customer due to the failure of any Network.
In order for the Customer to:
use of the Equipment and/or Services; or
access any Network, the Customer may be required to use Third-Party Software. In such instances, the Customer warrants and undertakes that it shall comply with any applicable Third-Party Terms and the Customer expressly acknowledges that RMC Voice shall have no responsibility whatsoever for any Losses suffered by the Customer as a result of the Customer’s use of any Third-Party Software.
RMC Voice may treat the Customer’s breach of any Third-Party Terms as a breach of this licence.
Where RMC Voice supplies the Customer with any software owned by RMC Voice, in consideration for the payment of applicable Charges, RMC Voice grants the Customer a non-exclusive, non-transferrable licence to use that software in order for the Customer to receive the Services, such licence automatically expiring at the end of the Term. The Customer’s licence under this paragraph 2.3 is subject always to the Customer’s compliance with any further obligations that RMC Voice may impose in writing from time-to-time.
The Customer acknowledges that all Intellectual Property Rights in any applicable software, (including Third-Party Software) belong and shall belong to RMC Voice or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to that software other than the right to use it in accordance with the terms of the Agreement and the any applicable software licence between the Customer and the relevant third-party owner.
The Customer shall indemnify RMC Voice, keep RMC Voice indemnified and hold RMC Voice harmless against any Losses which RMC Voice may suffer or incur as a result of the Customer’s:
breach of any Third-Party Terms;
possession and use of any software (including any Third-Party Software, howsoever arising and RMC Voice provides no warranty or assurances that the Customer’s use of any software (including Third-Party Software) will not infringe the rights (including the Intellectual Property Rights) of any third party.
SUSPENSION OF THE SERVICES
Without prejudice to clause 7, RMC Voice may suspend the provision of any or all of the Services immediately and without any liability to the Customer whatsoever (including, for the avoidance of doubt, liability for any Losses suffered by the Customer) if:
any of the events under clause 7.3 occur;
RMC Voice (or any applicable Network Provider) is required to carry out any maintenance, modification or other change to the Network;
such suspension is required (in the reasonable opinion of RMC Voice or any applicable Network Provider) in order to safeguard the security of any Network;
the Customer fails to adhere to the Data Fair Use Policy;
RMC Voice reasonably believes that the Customer has provided RMC Voice with false or misleading details about itself;
the Customer’s excessive use of Services (as may be defined within this Agreement, the Data Fair Usage Policy or otherwise as notified to the Customer from time-to-time) is causing problems for other users, and the Customer is continuing to use Services excessively despite receiving written notification from RMC Voice for it to refrain from doing so;
RMC Voice reasonably believes the Equipment has been lost or stolen;
RMC Voice reasonably believes that the Customer has used Services or Equipment for illegal or improper purposes;
RMC Voice receives a serious complaint against the Customer which RMC Voice believes to be genuine;
RMC Voice is required to suspend the Customer’s access to the Services by the emergency services or other government and regulatory authorities; or
if, in supplying the Equipment, RMC Voice has provided the Customer with a locked handset and RMC Voice reasonably believes the Customer has permitted the Equipment to be unlocked via any unauthorised manner and/or has not paid any relevant Charges due in contravention of this Agreement;
RMC Voice reasonably believes that the Customer is using the Service for a voice over internet protocol service, or similar service, that has been provided by a network service provider or than RMC Voice;
RMC Voice reasonably suspects that the Customer is using a GSM Gateway;
the Customer’s usage is adversely affecting or may adversely affect the operation of the Network or provision or any third party network or provision of the Mobile Services or the provision of services by RMC Voice to any other person;
the Customer attempts to assign its right to receive the Services in breach of clause 13.1; and
RMC Voice reasonably suspects that fraudulent, criminal or illegal activities are being carried out, or are likely to be carried out by the Customer.
RMC Voice shall use all reasonable endeavours to ensure that all suspensions to the Services under paragraph 3.1 are kept to a minimum (save where suspension takes place as a result of the Customer’s conduct) and shall give the Customer prior notice of such suspension where reasonably practicable.
Where the Services have been suspended under paragraph 3.1 as a result of the Customer’s actual or suspected conduct, reconnection may take place, subject always to the Customer’s payment of applicable further Charges, which shall be payable on the terms notified by RMC Voice in writing.
SCHEDULE 3 – SUPPORT AND MAINTENANCE
RMC Voice shall provide the Customer with the Support Services for the Equipment.
On the Customer informing RMC Voice of the occurrence of a Fault, RMC Voice shall perform the Reactive Services in respect of that Fault as soon as reasonably practicable and in accordance with any applicable Service Levels. In the first instance and to the extent applicable the Reactive Services shall be carried out remotely and only where RMC Voice is unable to resolve an issue remotely shall it attend the applicable Site to perform the Reactive Services.
Where RMC Voice is required to attend the Site(s) to perform the Support Services, it shall be provided with free, safe and unencumbered access to, egress from and movement around the Site(s).
RMC Voice is not obliged to perform any Excluded Services. Where RMC Voice is performing or has performed any Reactive Services in circumstances where it is established that the Fault was caused to any of the Excluded Causes, RMC Voice may charge, and the Customer shall pay, the Additional Charges in respect of any Additional Services as agreed between the parties.
In performing any Reactive Services, RMC Voice shall use reasonable endeavours to restore any malfunctioning or failed Equipment (and, where applicable, any Services) to Good Working Order either remotely or while in attendance at the Site. Where this is not reasonably practicable, or not reasonably practicable within Business Hours, RMC Voice shall either arrange for a further visit to the Site within Business Hours to complete the repair, or remove the Equipment or part of the Equipment for repair off-Site.
RMC Voice shall procure that its personnel shall, while on Site at the Site, comply with the Customer’s reasonable health and safety and security policies provided that these policies have been brought to the attention of its personnel in advance of the commencement of the Support Services.
Submitting support requests
The Customer may request Reactive Services by way of a Support Request.
Each Support Request shall include a description of the Reactive Services that are required and, where relevant, the start time of the incident in question.
The Customer shall provide RMC Voice with:
prompt notice of any Faults which it becomes aware of; and
such output and other data, documents, information, assistance and (subject to compliance with all Customer’s security and encryption requirements notified to RMC Voice in writing) remote access to the Equipment as is reasonably necessary to assist RMC Voice to reproduce operating conditions similar to those present when the Customer detected the relevant Fault and to respond to the relevant Support Request.
Save for where RMC Voice reasonably determines that it requires access to the Site to provide the relevant Support Service, all Support Services shall be provided on an off-Site basis (such as over the telephone or by e-mail) from RMC Voice’s office.
The Customer acknowledges that, to properly assess and resolve Support Requests, it may be necessary to permit RMC Voice direct access at the Site to the Equipment and the Customer’s files, equipment and personnel.
The Customer shall provide such access promptly, provided that RMC Voice complies with all the Customer’s reasonable security requirements and other policies and procedures relating to contractors entering and working on the Site notified to RMC Voice in writing reasonably in advance.
RMC Voice shall:
prioritise the Reactive Services based on its reasonable assessment of the severity level of the Fault reported; and
use all reasonable endeavours to respond to all requests for the Reactive Services in accordance with the responses and response times specified in the table set out below:
Severity level of Fault
Service Level response and response time for Reactive Services
Faults affecting the operation of 50% or more of the lines/handsets (or other services) connected to the Equipment.
4 Business Hours from the time at which the Fault was correctly reported.
Faults affecting the operation of two or more (but less than 50%) of the lines/handsets (or other services) connected to the Equipment, and/or Faults affecting auto-attendant, voicemail or call centre applications connected to the Equipment.
8 Business Hours from the time at which the Fault was correctly reported.
Faults affecting only one of the lines/handsets (or other services) connected to the Equipment.
16 Business Hours from the time at which the Fault was correctly reported.
For the avoidance of doubt, the Service Levels are indicative only and RMC Voice does not warrant or undertake that it shall:
provide a response to a Service Request; or
restore any Equipment (and, where applicable, any Services) to Good Working Order, within the response times set out in the table under paragraph 3.1, above.