TERMS AND CONDITIONS FOR
SINGLE BILLING THROUGH WHOLESALE LINE RENTAL TERMS AND CONDITIONS
1 INTERPRETATION
1.1Definitions
In this Agreement:
Access Provider means the person that provides the Customer with a physical telephone line and (if applicable) associated telephone number, from which Pure Telecom now rents such line and/or numbers.
Agreement means, in order of precedence, these conditions, the Form, the Single Billing Scheme and any other document that is expressly stated to form part of this Agreement.
Business Day means a day (other than a Saturday or Sunday) on which dealing banks are generally open for business in Ireland.
Call Management Services has the meaning assigned to it in the Single Billing Scheme.
Call Management Services Charges means the charges applicable to the Call Management Services as specified in the Tariff Sheet.
Carrier Pre-Selection (“CPS”) means the facility whereby a Customer may pre-select a telecommunications service provider to carry calls in accordance with Decision Notices D2/99 and D13/99 of ComReg. For the avoidance of doubt in selecting the Service, the Customer accepts that CPS “All Calls” option forms part of same.
Charges means all charges payable to Pure Telecom for the Service includes, without limiting the generality of the foregoing, the call rates as specified in the Tariff Sheet, the Line rental charges, Equipment rental charges and Call Management Services Charges.
ComReg means the Commission for Communications Regulation, the national regulatory authority for the electronic communications sector in Ireland.
Carrier Select (“CS”) means the facility whereby the customer may select a telecommunications service provider to carry calls by means of inserting a dial prefix on calls made across the public switched telephony network
Customer means the company, corporation or other legal entity so named on the Form and anyone reasonably appearing to Pure Telecom to be acting with that entity’s authority.
Customer Equipment means all cabling, apparatus and facilities provided by the Customer to enable the Customer to connect to the Network Connection.
Emergency means any crisis necessitating prompt action by Pure Telecom.
Pure Telecom means Pure Telecom Limited of Unit 3018, Lake Drive, City West Business Campus, Dublin 24
Equipment means equipment placed on Site by Pure Telecom and/or the Access Provider for the provision of the Service.
Form means the application form on which the Customer specifies that it requires the Service . This information may also be captured via TPV or sign up over the Internet as per the agreed processes.
ISDN means ISDN primary and fractional access circuits consisting of 30 or less bearer channels and one delta channel.
Line means a telecommunications line which includes a telegraphic line, a telegraph as such terms are defined in the Telegraph Acts, 1863 to date, and includes without limiting the generality of the foregoing, all lines including auxiliary lines, ISDN lines and PSTN lines;
Line Rental Charges means the charges for Line rental as specified in the Tariff Sheet.
National Directory Database or NDD means the record of all subscribers of publicly available telephone services in the State, including those with fixed, personal and mobile numbers, who have not refused to be included in that record.
Network means the telecommunications system owned and/or operated by Pure Telecom.
Network Connection means all Pure Telecom and/or Access Provider cabling, interface panels, cabinets, systems, apparatus, facilities and any other equipment which may be utilised by Pure Telecom to provide the Service.
NTP means a network terminating point at which calls exit the Service.
Operational Service Date means the date when the Service is first made available to the Customer.
Other Networks means electronic systems owned or operated by third parties.
Party means either Pure Telecom or the Customer.
Parties means both Pure Telecom and the Customer.
Planned Maintenance means any work planned in advance to be carried out by Pure Telecom or on behalf of Pure Telecom which requires the availability of the Service to be suspended.
PSTN means a telecommunications line provided for the purpose of connecting a telephone exchange with a public telephone or a customer’s telephone.
PTSP means a public telecommunications service provider.
Routing Plan means a Pure Telecom Customer plan that contains either a preferred path through the Network and/or a public telephony network via which a call should be delivered or other routing parameters as agreed by Pure Telecom.
SB-WLR Customer Listing means the Customer listing setting out the Customer’s name, address, telephone number, directory status, and direct marketing preference on the Access Provider’s Directory Database, Pure Telecom’s internal directory database and/or where appropriate the National Directory Database.
Service means the SB-WLR service requested by the Customer in the Form. The Service does not facilitate the provision by Pure Telecom to the Customer of the Single Billing Product Exclusions.
Service Level Agreement means the applicable service level agreement between Pure Telecom and the Customer as supplied.
Single Billing though Wholesale Line Rental (“SB-WLR”) means the facility which, through use of CPS “All Calls” option, enables Pure Telecom provide a single bill to the Customer covering all aspects of voice services, at rates Pure Telecom determines, where voice services means all telephone lines (PSTN/ISDN), Equipment, calls and Call Management Services, unless otherwise excluded herein.
Single Billing Code of Practice means the Code of Practice developed for the purpose of SB-WLR and approved by ComReg, as same may be amended from time to time, a copy of which can be obtained by writing to the Marketing Department, Pure Telecom, Unit 1 Aspen Court, Cornelscourt, Dublin 18.
Single Billing Product Exclusions means those services which the Access Provider, and not Pure Telecom, will continue to offer the Customer from time to time as specified in the Tariff Sheet, which includes eircom Charge Card, eircom i-stream, High Value CPE, spread payment contracts (for equipment purchase) and eircom discount schemes, as same may be amended from time to time.
Single Billing Scheme means the Pure Telecom scheme in relation to the Service contained at www.puretelecom.ie as same may be amended from time to time, which details the rights and obligations of the Customer in relation to the Equipment and the Service.
Site means the property/address at which Pure Telecom agrees to provide the Service.
Tariff Sheet means the Pure Telecom price list in force from time to time in respect of the provision of the Service within the Republic of Ireland.
Telecommunications Scheme means the eircom Telecommunications Scheme, 2003, as amended from time to time.
TPV means the independent means of verifying a Customer’s consent and of Pure Telecom obtaining information from the Customer required to approve the provision of the Service. It is conducted via the telephone, with a recording of the call serving as a record of the Customer’s consent.
1.2Interpretation Generally In this Agreement:
1.2.1words denoting the singular include the plural and vice versa;
1.2.2in construing this Agreement general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words and any reference to the word “include” or “including” is to be construed without limitation;
1.2.3any reference to a person shall be construed as a reference to any individual, firm, company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal personality) of two or more of the foregoing;
1.2.4any reference to a person includes his successors, personal representatives and permitted assigns; and
1.2.5if any action or duty to be taken or performed under any of the provisions of this Agreement would fall to be taken or performed on a day which is not a Business Day such action or duty shall be taken or performed on the Business Day next following such day.
2DURATION
2.1This Agreement is effective from the date of signature by the Parties of the Form. This Agreement shall continue unless terminated in accordance with clause 22.
3.1The application by the Customer for the Service is in respect of individual Lines, and not the Customer’s entire telephone account, unless otherwise specified on the Form. The Customer must specifically elect on the Form for the Service in respect of each Line which the Customer wishes to apply SB-WLR on.
3.2The Customer shall contact Pure Telecom in the event that it wants to alter any aspect of the Service, including, but without limiting the generality of the foregoing, the addition of a Line, upgrades to a Line, change in the Call Management Services and/or changes in the Site.
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PROVISION OF THE SERVICE |
4.1Pure Telecom will provide the Customer with the Service upon the terms of this Agreement.
4.2Pure Telecom will endeavour to provide the Service by any date agreed with the Customer however all dates agreed are estimates and Pure Telecom accepts no liability for failure to meet those dates.
4.3Pure Telecom will provide the Service with the reasonable skill and care of a competent telecommunications service provider. Pure Telecom, however, does not guarantee a fault free Service.
4.4Pure Telecom will remedy any faults which significantly impair the Service quality in accordance with the fault repair service it agrees to provide to the Customer.
4.5Pure Telecom reserves the right, from time to time, to:
4.5.1change the technical specification or any other aspect of the Service, provided that the change does not materially and adversely affect the Service; and
4.5.2give the Customer instructions which it believes are necessary for reasons of health, safety or the quality of any telecommunications service provided by Pure Telecom to the Customer or any other customer.
5 EQUIPMENT
5.1To enable the installation and use of Equipment on Site, the Customer will, at its own expense, if necessary:
5.1.1Provide Pure Telecom with all necessary consents, permissions and approvals including consents for any necessary alterations to buildings;
5.1.2provide suitable accommodation, foundations and environment for the equipment including all necessary trunking, conduits and cable trays in accordance with relevant installation and use standards;
5.1.3make such internal building alterations as Pure Telecom advises are necessary and carry out afterwards any making good or decorator’s work required;
5.1.4provide all necessary support for the Service to include but not limited to electricity supply;
5.1.5provide Pure Telecom with a detailed map marking the location of Equipment on Site and verify that such equipment does not damage or interfere with either the equipment or services of the Customer or any third party;
5.1.6provide Pure Telecom with such co-operation and assistance as it requires and comply with the terms of any licence under which such equipment is provided; and/or
5.1.7comply with the terms of the Single Billing Scheme.
5.2The Customer is responsible for any Equipment on Site and must not add to, modify or in any way interfere with Equipment. The Customer will be liable to Pure Telecom for any loss of or damage to Equipment on Site, except where such loss or damage is due to fair wear and tear or is caused by the negligent or wilful act or omission of Pure Telecom, its agents, employees or subcontractors.
5.3Title to Equipment on Site shall at all times remain with and belong to Pure Telecom and/or the Access Provider unless this equipment is purchased by the customer.
6.1Any equipment used in the provision of the Service must be used in accordance with any applicable instructions and safety or security procedures.
6.2Any equipment that is used for the provision of the Service must be technically capable of providing the Service and approved for that purpose under any relevant legislation.
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ACCESS AND SITE REGULATIONS |
7.1The Customer hereby authorises Pure Telecom and the Access Provider to contact the owner of the Site, if necessary, in order for Pure Telecom to obtain the owner’s consent to install and connect any equipment necessary to provide telecommunications services to the Customer. The Customer hereby indemnifies and agrees to keep Pure Telecom indemnified against all costs, damages, losses, proceedings, claims and other liabilities incurred by Pure Telecom howsoever arising from any such contact whether or not consent is actually granted.
7.2The Customer will, where necessary, and at all reasonable times, permit access to any Site to Pure Telecom and/or the Access Provider and anyone acting on Pure Telecom’s behalf, on production of a valid identity card, to enable Pure Telecom to carry out its obligations under this Agreement. Pure Telecom and/or the Access Provider will normally only require such access during the Customer’s usual working hours, however, Pure Telecom and/or the Access Provider may, on reasonable notice, require the Customer to provide it with access at other times.
7.3Employees of Pure Telecom, anyone acting on Pure Telecom’s behalf and/or the Access Provider will observe reasonable Site regulations of the Customer, copies of which have been previously advised in writing to Pure Telecom. In the event of any conflict between the Site regulations and these Conditions, these Conditions shall prevail.
7.4The Customer will provide a suitable and safe working environment for Pure Telecom employees, anyone acting on Pure Telecom’s behalf and/or the Access Provider.
8.1The Customer agrees not to use the Service (nor allow others to use the Service) for any purpose or in any manner that:
8.1.1does not comply with the terms of any legislation or any licence or authorisation applicable to the Customer or Pure Telecom, is in any way unlawful or causes any nuisance;
8.1.2does not comply with any instructions given by Pure Telecom;
8.1.3does not comply with any instructions given to Pure Telecom by any other public telecommunications operator or any competent authority in any country where the Service is provided;
8.1.4would result in Pure Telecom being in breach of any agreement between Pure Telecom and any public telecommunications operator which has been notified in writing by Pure Telecom to the Customer; or
8.1.5in the reasonable opinion of Pure Telecom, is improper or immoral.
8.2The Customer agrees to comply with the Single Billing Code of Practice and any applicable code of practice on number portability issued from time to time by ComReg and/or any other competent authority.
8.3Pure Telecom’s obligations under this Agreement are owed solely to the Customer, and not to any third party. Accordingly, to the extent not prohibited by law, the Customer hereby indemnifies and agrees to keep Pure Telecom indemnified against all costs, damages, losses and other liabilities which it incurs howsoever arising out of any and all claims by any third party in connection with the Service including, inter alia, because:
8.3.1the Service is used in breach of the provisions of clause 8.1 and/or
8.3.2the Service is faulty and/or cannot be used by that third party.
8.4The Customer hereby agrees to avail of the Service subject to the provisions of the Telecommunications Scheme in force for the time being, and the Single Billing Scheme. Use of the Service by the Customer shall be deemed to be an acceptance by the Customer of the terms and conditions of this Agreement and the terms of Annex C
(Service Schedule 401) to the Reference Interconnect Offer Agreement between Pure Telecom and eircom as same may be amended from time to time and which can be obtained by writing to the Marketing Department, Pure Telecom, Unit 3018, Lake Drive, Citywest Business Campus, Dublin 24
8.5The Customer accepts and acknowledges that (i) the Access Provider shall bar access to all Carrier Select and carrier access codes on telephone lines that have SB-WLR applied; and (ii) override codes are not available for use by the Customer in conjunction with the Service. The Customer accepts that Pure Telecom shall have no liability for any losses or damages howsoever arising from non provision of the Service in the event that such restrictions are not accepted by the Customer.
8.6The Customer will inform Pure Telecom of any change in its name, address and/or telephone number(s) as provided by it in the Form (the “Data”). The Customer hereby warrants that the Data is true and accurate in all respects at the date hereof and undertakes to notify Pure Telecom of any changes to same during the term of this Agreement. It shall indemnify and hold Pure Telecom harmless against all liabilities, claims, damages, losses, expenses and proceedings howsoever arising from or in any way connected with a breach of this clause.
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PURE TELECOM’S RESPONSIBILITIES |
9.1Prior to commencement of the Service, Pure Telecom and/or the Access Provider shall perform a survey of the Site and inspect the Customer Equipment, if necessary.
9.2Pure Telecom will manage traffic flows within the Network and any failure of hardware, software or leased lines within the Network or the Equipment. Pure Telecom will endeavour to remedy any such failure as soon as reasonably practicable. Pure Telecom hereby undertakes to manage the Network 24 hours a day, 365 days per year.
9.3Pure Telecom will respond to reported faults without undue delay by taking network management measures it deems appropriate. Pure Telecom will notify the Customer if the fault does not relate to either the Network or the Access Provider’s network or Equipment.
9.4For the purposes of providing new connections, changing routing tables, updating facilities and general inspection, repair and maintenance, scheduled downtime may be required from time to time. Pure Telecom will use all reasonable endeavours to schedule Planned Maintenance in accordance with the Customer’s requirements. Except in the case of an Emergency, Pure Telecom shall give fourteen (14) days notice to the Customer of any scheduled Planned Maintenance.
9.5Pure Telecom will provide a help desk facility, for the reporting of faults within the Network by the Customer and advice on the day to day use of the Service. Pure Telecom’s customer care helpdesk number is freephone 1800 930 393 and is accessible 24 hours a day, 7 days a week.
9.6Pure Telecom shall be responsible for the maintenance and repair of the Equipment on Site.
9.7Pure Telecom shall not be responsible for the provision of any Single Billing Product Exclusions.
10 CUSTOMER’S RESPONSIBILITIES
10.1The Customer undertakes:
10.1.1to inform Pure Telecom of existing facilities which run the risk of being damaged during the installation and connection of Equipment on Site and provision of the Service;
10.1.2to make available to Pure Telecom, at no charge, all equipment, space and other resources as are reasonably required by Pure Telecom to enable Pure Telecom to provide the Service;
10.1.3to use the Service strictly in accordance with instructions provided by Pure Telecom;
10.1.4not to use the Service in a manner which would jeopardise the operation of the Network;
10.1.5not to interfere with any labels or warnings on Equipment;
10.1.6to permit Pure Telecom to examine or test the Equipment on Site at all reasonable times;
10.1.7not to create or permit any charges, pledges, liens or encumbrances of any kind to be created in respect of the Equipment on Site;
10.1.8to be responsible for the maintenance of all Customer Equipment;
10.1.9to promptly report faults in the Service to the help desk facility provided by Pure Telecom; and
10.1.10to inform Pure Telecom of any change of name, address and/or telephone number of the Customer.
10.2The Customer shall not, nor permit any other person to:
10.2.1attach anything directly or indirectly to a Line;
10.2.2place anything in electrical connection with a Line; or
10.2.3use anything in such a way that it is capable of transmitting or receiving any message, signal or communication to or from a Line.
10.3The Customer shall:
10.3.1contact Pure Telecom if they wish to initiate or change call barring options;
10.3.2contact Pure Telecom if they wish to order a new Line in order to ensure that Pure Telecom can provide the Customer with the Service in respect of the Customer’s new Line; and
10.3.3inform Pure Telecom if the Customer wishes to change options available under the Service.
11 CONNECTION TO THE NETWORK
11.1 The customer shall be responsible for any effect to their service caused by the connection of any equipment to the Network, or by directly or indirectly connecting any other network to the Network.
12 ALLOCATION AND USE OF TELEPHONE NUMBERS AND CODES
12.1The Customer shall, at no time, acquire any rights or title in the numbers and/or codes allocated to it by Pure Telecom. Pure Telecom reserves the right to withdraw or replace any numbers or codes allocated to the Customer for operational or technical reasons or where any such withdrawal is required by law. Where numbers or codes are to be withdrawn or replaced, Pure Telecom will endeavour to provide the Customer with the maximum notice practicable having regard to the circumstances of the withdrawal or replacement.
13 INTELLECTUAL PROPERTY RIGHTS
13.1In the event that Pure Telecom provides the Customer with software to enable the Customer to use the Service, Pure Telecom hereby grants the Customer a non- exclusive non-transferable licence to use the software for that purpose.
13.2The Customer shall not copy nor, except as permitted by law, decompile or modify the software in any way or copy any accompanying manuals or documentation without Pure Telecom’s prior written consent.
13.3The Customer agrees to sign any agreement required by the owner of the copyright in the software to protect the owner’s interest in that software.
14 INTELLECTUAL PROPERTY RIGHT INFRINGEMENT
14.1Pure Telecom hereby agrees to indemnify the Customer against all fees, losses and damages incurred by the Customer arising from all and any claims that use of the Service has infringed the intellectual property rights of a third party provided that the Customer:
14.1.1notifies Pure Telecom promptly in writing of any allegation of infringement;
14.1.2makes no admission relating to the alleged infringement;
14.1.3permits Pure Telecom to conduct and settle, if appropriate, all negotiations and proceedings in respect of any such claims; and
14.1.4provides Pure Telecom with all reasonable assistance (Pure Telecom will reimburse the Customer’s reasonable expenses in respect of any such assistance).
14.2The indemnity in clause 14.1 does not apply to alleged infringements occasioned by use of the Service in conjunction with apparatus or software not supplied by Pure Telecom, or to infringements occasioned by the Customer. The Customer hereby indemnifies and agrees to keep Pure Telecom indemnified against all fees, losses, damages and liabilities incurred by Pure Telecom howsoever arising from all such alleged infringements.
15 CONFIDENTIALITY
15.1The Parties hereby agree to treat as confidential all information which they obtain from Pure Telecom or receive in the performance of this Agreement (“Confidential Information”). The Parties agree not to disclose any Confidential Information without the prior written consent of the other Party.
15.2Clause 15.1 does not apply in respect of:
15.2.1any information which is in the public domain otherwise than by means of a breach of this Agreement or any other confidentiality obligation;
15.2.2information lawfully already in the possession of the recipient;
15.2.3information lawfully obtained from a third party; and
15.2.4information which a Party is required by law to disclose.
15.3The Parties agree to use Confidential Information only for the purposes of this Agreement.
15.4If a Party is required by law to disclose Confidential Information, it shall so far as reasonably practicable consult with the other Party and provide it with an opportunity to oppose the disclosure and/or otherwise agree the timing and content of any such disclosure.
16 CHARGES, PAYMENT TERMS AND DEPOSITS
16.1The Customer agrees to pay all Charges for the Service set out in the Tariff Sheet. These Charges may vary from time to time. Pure Telecom may revise the Charges on 14 days notice to the Customer, where the Customer shall be notified in writing and/or via national newspaper and/or via www.puretelecom.ie. Value Added Tax will be included in Pure Telecom invoices.
16.2The Customer is liable for all calls made via the Service. This applies irrespective of whether the Customer knows or consents to such use.
16.3Charges hereunder are payable as and from the Operational Service Date.
16.4Charges for the provision of the Service are payable in the following manner:-
| Element of Service |
Payment Cycle |
| |
|
| Line Rental and Equipment Rental Charges |
Monthly in advance |
| |
|
| Call Usage |
Monthly in arrears |
| |
|
| Call Management Services |
Monthly in advance |
| |
|
| Non-recurring charges |
See Tariff Sheet |
| |
|
| SLA charges |
Monthly in advance |
| |
|
16.5Charges for the use of the Service shall be calculated in accordance with details recorded by or on behalf of Pure Telecom.
16.6Pure Telecom reserves the right to charge the Customer for work done by Pure Telecom in investigating faults reported by the Customer in the Service, where Pure Telecom finds no fault exists with the Equipment.
16.7All Charges shall be paid within thirty days of issue of Pure Telecom invoices. The Customer will receive one invoice from Pure Telecom for all Charges incurred by the Customer in respect of this Service. The Customer will continue to be billed separately by its Access Provider for any Single Billing Product Exclusions.
16.8Pure Telecom reserves the right to charge interest on any overdue amount at 4% per annum above Bank of Ireland’s base lending rate as varied from time to time until any outstanding amount due to Pure Telecom has been paid in full.
16.9Pure Telecom may, at any time, require the Customer to pay a deposit or provide or procure a guarantee as security for payment of future bills.
16.10Without prejudice to any other rights of Pure Telecom hereunder, if the Customer disputes an invoice or a portion thereof raised hereunder, the Customer shall notify Pure Telecom within 15 days of the date of the specified invoice with sufficient detail for Pure Telecom to investigate the dispute and if such dispute has not been resolved by the due date for payment of the invoice, payment shall be made as follows:- (a) if the amount in dispute is less than 5% of the total invoice amount (excluding VAT) the total invoice shall be payable by the due date; (b) if the amount in dispute is 5% or more of the total invoice amount, payment of the amount in dispute may be withheld until the dispute is resolved. The undisputed amount on the invoice must be paid in accordance with the payment term. When the dispute is resolved Pure Telecom shall credit any overcharged amount on its next invoice to the Customer or the customer shall immediately pay the disputed amount, whichever is the outcome of the dispute.
16.11The Customer shall be charged for usage of the “call forward” function under the Service.
16.12Without prejudice to any other rights hereunder, in the event of failure by the Customer to pay the Charges incurred for the Service in accordance with the terms herein, Pure Telecom shall be entitled to restrict the Customer from moving to another provider of this Service (such restriction to cease on payment in full of all Charges due by the Customer in accordance with this Agreement).
16.13Connection of the Service to the Customer is subject to credit status and the Customer authorises Pure Telecom to check its status with any credit reference agency or bureau as it deems fit from time to time and to pass credit information about the Customer to any credit reference agency or bureau at any time. If the Customer is not satisfied with the information about the Customer which Pure Telecom receives from any credit reference agency or bureau the Customer must deal directly with the credit reference agency or bureau.
16.14If, following a credit check as outlined in Clause 16.13 above, Pure Telecom is not satisfied with the credit status of the Customer, Pure Telecom reserves the right to either (a) decline the Customer’s application for Service; or (b) where the provision of Service has commenced, suspend the Service to the Customer; and/or (c) terminate this Agreement immediately without liability to Pure Telecom.
17 LIMITATION OF LIABILITY
17.1Pure Telecom accepts unlimited liability for death or personal injury resulting from its negligence arising from or in connection with the provision by it of the Service to the Customer.
17.2Pure Telecom shall not be liable to the Customer in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings or for any indirect or consequential loss or damage whatsoever.
17.3Subject to Clauses 17.1 and 17.8, Pure Telecom’s liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Agreement or the provision by it of the Service to the Customer shall be limited to Euro 500,000 for any one incident or series of related incidents and Euro 1,000,000 for all incidents in any calendar year.
17.4Pure Telecom does not accept liability to the Customer for the acts or omissions of other telecommunication operators.
17.5The Customer shall be responsible for implementing all measures to prevent any unauthorised access by third parties to any of their internal telecoms equipment. The customer shall be liable for the consequences, financial or otherwise, arising out of any such unauthorised access.
17.6The Customer hereby indemnifies and agrees to keep Pure Telecom indemnified in respect of any costs, damages, losses or other liabilities incurred by Pure Telecom in respect of any damage or interference caused to the services or equipment of the Customer or any third party by the Equipment on Site.
17.7In the event Pure Telecom is unable to provide a telecommunications service on terms satisfactory to it, Pure Telecom shall have no liability to the Customer for failure to supply the Service and shall be entitled to terminate this Agreement in accordance with clause 22.
17.8In the event of Pure Telecom making any error or omission in a directory published by it, or on its behalf, except where such error or omission is based on information furnished by or otherwise requested by the Customer, Pure Telecom shall, notwithstanding any other provision contained herein, only be liable for the loss or damage suffered by the Customer and caused by Pure Telecom’s said failure, error or omission, and any such liability shall be limited to a sum equal to 2 months Line Rental Charges for the Customer in respect of each incident, or series of incidents of failure, error, omission or delay SUBJECT TO A MAXIMUM OF €12,697.38 IN AGGREGATE FOR ALL CUSTOMERS FOR EACH INCIDENT OR SERIES OF RELATED INCIDENTS PROVIDED ALWAYS that (i) Pure Telecom shall only be liable to pay the amounts contained in this clause if the Customer has made a claim in writing within 3 months of liability hereunder having arisen and the failure, error, omission or delay is not as a result of circumstances beyond the reasonable control of Pure Telecom; (ii) the amount payable to each Customer pursuant to this section shall be reduced pro rata if Pure Telecom considers that the number of customers who are likely to make a claim in respect of any incident or series of related incidents is such that the maximum aggregate sum of €12,697.38 payable by Pure Telecom is likely to be exceeded; and
(iii)Pure Telecom may credit the Customer’s account with any sum payable hereunder.
18 INDEMNITY
18.1The Customer hereby indemnifies and agrees to keep Pure Telecom indemnified against any costs, damages or losses or other liabilities incurred by it arising from or in connection with any claims for loss, damage, costs, expenses, injury or death to third parties howsoever arising (whether directly or indirectly) out of or in connection with any act of the Customer in relation to its use of the Service.
19 FORCE MAJEURE
19.1 If a Party (the “Affected Party”) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event:
19.1.1the Affected Party’s obligations under this Agreement will be suspended while the Force Majeure Event continues and to the extent that it is so prevented, hindered or delayed;
19.1.2as soon as reasonably possible after the start of the Force Majeure Event, the Affected Party shall notify the other Party of the Force Majeure Event, the date the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;
19.1.3the Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement; and
19.1.4as soon as reasonable possible after the end of the Force Majeure Event, the Affected Party shall notify the other Party that the Force Majeure Event has ended and resume performance of its obligations under this Agreement.
19.2For the purposes of this Agreement, a Force Majeure Event means: fire; flood; lightning; explosion; war; strike; embargo; labour dispute; government requirement; civil or military authority; act of God or nature; inability to secure materials or transportation facilities; act or omission of carriers or suppliers; acts or failures to act of any governmental or competent authority, or any other causes beyond a Party’s reasonable control, whether or not similar to the foregoing.
19.3Nothing in clause 19.1 shall relieve the Customer of its payment obligations hereunder.
19.4If the Force Majeure Event continues for more than three months starting on the day the Force Majeure Event starts, a Party may terminate this Agreement by giving not less than fourteen days written notice to the other Party.
20 ESCALATION AND DISPUTE RESOLUTION
20.1If any dispute or difference of any kind whatsoever arises between the Parties in relation to this Agreement or the provision of the Service, the Parties will use their reasonable endeavours to settle the dispute as soon as possible in accordance with Pure Telecom’s code of practice in respect of disputes in force from time to time.
21 SUSPENSION
21.1Pure Telecom reserves the right to suspend the provision of the Service:
21.1.1 in the event of an Emergency;
21.1.2in the event that the Customer fails to comply with the provisions of this Agreement; or
21.1.3in the event that Pure Telecom is unable to provide a telecommunications service on terms satisfactory to it.
21.2Notwithstanding any other provision of this Agreement or any Annex, Appendix or Schedule, if the Customer fails to pay any sums due in accordance with the terms of this Agreement, Pure Telecom may, at its option immediately on five (5) days notice to the Customer, either (a) restrict, suspend or terminate provision of the Service(s), and Pure Telecom shall be released from its obligations under this Agreement until any balance due is paid or until such other material breach is remedied, and/or (b) terminate this Agreement without liability or right to compensation for the Customer. In addition, Pure Telecom reserves the right to suspend the provision of the Service in order to:
21.2.1prevent damage to or degradation of the Network which may be caused by the Customer or anyone using the Customer’s access;
21.2.2comply with any law, regulation, court order or other governmental request or order;
21.2.3comply with any request of an emergency service organisation; or
21.2.4prevent use of the Service which in the reasonable opinion of Pure Telecom is fraudulent, defamatory or improper.
21.3Without prejudice to its right to terminate this Agreement, Pure Telecom may suspend the provision of the Service in the event that any of the circumstances listed in clause
22.5.4occur.
21.4In the event that the Service is suspended due to a breach by the Customer of this Agreement, the Customer shall continue to pay to Pure Telecom the Charges in accordance with this Agreement.
22 TERMINATION
22.1 Either Party shall have the right to terminate this Agreement in respect of the provision of the Service within five days of signing this Agreement if the Customer wishes to revert to the Access Provider or to switch to another provider. In the event that a Customer decides to so terminate the Service, the Customer shall only be liable to pay to Pure Telecom Charges incurred prior to such termination of the Service. No other cancellation charges shall apply.
22.2For the avoidance of doubt, if the Customer chooses to terminate the Line rental element of the Service provided hereunder only, for any reason whatsoever or howsoever arising, which for the avoidance of doubt it is entitled to do, the Customer shall be deemed to have accepted the terms and conditions of the Pure Telecom CPS Services applicable at the time of such termination.
22.3Either Party may terminate this Agreement upon two months’ notice in writing to the other Party and during such two month period the Customer shall be liable for all Charges accruing in respect of the provision of Service. If the Customer terminates this Agreement and gives no notice or less than two months’ notice to Pure Telecom
then all Charges that would have been payable by the Customer for the Service in respect of the two months’ from the date of any such notice shall be due and payable by the Customer. .
22.4If the Customer terminates this Agreement in respect of the provision of the Service for any reason whatsoever or howsoever arising, the Customer shall notify in writing both the new provider and Pure Telecom.
22.5Either Party may terminate this Agreement immediately on giving notice in writing to the other Party, if the other:
22.5.1commits a breach of this Agreement that is capable of remedy and fails to remedy that breach within 30 days of a written notice from the other Party to do so;
22.5.2commits a breach of this Agreement which cannot be remedied;
22.5.3is repeatedly in breach of this Agreement; or
22.5.4is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into either voluntary (otherwise than for the purposes of a solvent reconstruction or amalgamation), or compulsory liquidation or a receiver, examiner or administrator is appointed over its assets.
22.6In the event that any intellectual property used by Pure Telecom for the purposes of providing the Service infringes the rights of any third party, Pure Telecom reserves the right to modify or substitute same (provided any such modified or substituted intellectual property does not adversely affect Service quality) or in the event that Pure Telecom is not in a position to do so on terms satisfactory to it, to terminate this Agreement by serving one month’s notice on the Customer.
22.7In the event Pure Telecom is unable to provide a telecommunications service on terms satisfactory to it, Pure Telecom shall be entitled to terminate this Agreement by serving one month’s notice on the Customer.
22.8Any termination of this Agreement shall be without prejudice to the rights of either Party accrued before the date thereof, and all Charges accrued under this Agreement shall remain due and owing by the Customer for the Service.
22.9Those clauses the survival of which is necessary for the interpretation or enforcement of this Agreement, shall survive termination of this Agreement and continue in full force and effect.
22.10Following termination of this Agreement:
22.10.1the Customer shall make appropriate arrangements with Pure Telecom for Pure Telecom to remove from Site Equipment;
22.10.2any information which has been furnished to the Customer by Pure Telecom shall be returned to Pure Telecom, deleted, destroyed or expunged, as appropriate.
22.11In the event that this Agreement is terminated and any alteration of the Site has taken place in order to facilitate the provision of the Service, the Customer shall be responsible for restoration of the Site.
23 MISCELLANEOUS
23.1Binding on successors
This Agreement shall be binding upon and enure to the benefit of the respective Parties hereto, their respective successors, personal representatives and permitted assigns.
23.2Waiver, release and remedies
23.2.1A waiver by either Party of any breach by the other Party of any of the terms, provisions or conditions of this Agreement or the acquiescence of either Party in any act (whether commission or omission) which but for such acquiescence would be a breach as aforesaid shall not constitute a general waiver of such term, provision or condition or an acquiescence to any subsequent act contrary thereto.
23.2.2Any remedy or right conferred upon either Party for breach of this Agreement shall be in addition to and without prejudice to all other rights and remedies available to it whether pursuant to this Agreement or provided for by law.
23.2.3No failure or delay by either Party in exercising any claim, remedy, right, power or privilege under this Agreement shall operate as a waiver nor shall a single or partial exercise of any claim, remedy, right, power or privilege preclude any further exercise thereof or exercise of any other claim, right, power or privilege.
23.3Assignment/Subcontracting
This Agreement shall not be assignable in whole or in part by either Party save that Pure Telecom shall be entitled to assign and transfer all or any of its rights and obligations hereunder to a member of the PURE TELECOM Group and such assignee or transferee shall be entitled to enforce same against the Customer as if it were named in this Agreement as Pure Telecom. Pure Telecom shall notify the Customer of any such assignment or transfer. Pure Telecom may sub-contract all or any part of its obligations under this Agreement.
23.4Use of Information
23.4.1Unless indicated to the contrary by the Customer in the Form, Pure Telecom shall be at liberty to use the information supplied by the Customer under the terms of the Agreement for the purpose of introducing and offering to the Customer from time to time, additional, improved or new products and services of Pure Telecom and other companies within the Pure Telecom Group or any third parties which may be of interest to the Customer.
23.4.2Pure Telecom shall comply with its obligations under applicable data protection legislation as regards relevant data in its possession relating to the Customer.
23.5Notices
Any notice to be given by Pure Telecom to the Customer under this Agreement or otherwise, shall be in writing signed on behalf of Pure Telecom and delivered by hand or sent by registered post to the address last notified to Pure Telecom for this purpose. Any notice to be given to Pure Telecom by the Customer under this Agreement or otherwise, shall be in writing signed by or on behalf of the Customer and delivered by
hand or sent by registered post to the Pure Telecom office shown on the Form or the last address notified by Pure Telecom to the Customer for this purpose.
23.6Notice deemed to be served
Any notice or communication referred to in clause 23.5 shall be deemed to have been served on delivery or if sent by registered post, 48 (forty-eight) hours after posting.
23.7Variation
Pure Telecom reserves the right to amend this Agreement from time to time, such changes to be notified in writing to the Customer and to take effect from the date of receipt of such notice.
23.8Whole Agreement
This Agreement contains the whole agreement between the Parties hereto relating to the transactions provided for in this Agreement and supersedes all previous agreements (if any) between such parties in respect of such matters and each of the Parties to this Agreement acknowledges that in agreeing to enter into this Agreement it has not relied on any representations or warranties except for those contained in this Agreement. Nothing in this clause shall have the effect of limiting or restricting any liability of either Party arising as a result of any fraud.
23.9Severability
Each of the provisions of this Agreement is separate and severable and enforceable accordingly and if at any time any provision is adjudged by any court of competent jurisdiction to be void or unenforceable the validity, legality and enforceability of the remaining provisions hereof and of that provision in any other jurisdiction shall not in any way be affected or impaired thereby.
23.10Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Ireland. Each of the Parties hereto, subject to Clause 20.2 hereby agrees that the courts of Ireland shall have exclusive jurisdiction to hear and determine any suit, action or proceedings that may arise out of or in connection with this Agreement and for such purposes irrevocably submits to the jurisdiction of such courts.
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