Terms & Conditions
General Terms and Conditions of the Customer’s Contract
1.1. In these terms and conditions:
- Access Services means the provision of services to access the public communications infrastructure.
- Account means all the services that the Customer uses from the Company.
- Calls means any telephone or communication link or call.
- Company, Us, We or Supplier means South West Communications Group Ltd of Communications House, Moor Lane, Sowton, Exeter, EX2 7JF.
- Conditions means the standard terms and conditions of sale set out in this document and (unless the context requires) includes any special terms and conditions agreed in writing between the Customer and the Company and set out in any agreed Order.
- Contract means the agreement for the purchase, provisions and/or sale of Equipment and Services.
- Customer or You means the entity whose Order is accepted by the Company in accordance with these Conditions.
- Director means a person registered at Companies House as a Director of the Company.
- Documentation is the user manual, or any other document issued by the Company to the Customer.
- Equipment or Service means the provision of equipment and/or services identified in the Order.
- Order is the order agreed between the parties in respect of the provision of Equipment and Services.
- Intellectual Property or IPR means any intellectual property including without limit any copyright, design rights, registered and unregistered trademarks, topography rights, patents, database rights, domain name rights together with any applications to register the same anywhere in the world.
- Network Suppliers or Network Operator means other organisations that supply underlying public communication infrastructure services that allow the Company to provide Services to the Customer.
- Writing means the written letter and e-mail. The Customer consents to general communications concerning contractual compliance being communicated in writing that includes e-mail.
- Product Group is a grouping of services that are the same or technically similar to each other. Lines and minutes Network Services are defined as a single Product Group. Product grouping allows the provision of a common contractual duration for the Product Group defined in accordance with Contract and Duration paragraph below.
- SWT Finance Ltd – means the separate entity SWT Finance Ltd that has its own separate terms and conditions and trades as a separate entity to South West Communications Group Ltd. Any such contract in the name of SWT Finance Ltd is totally separate to contracts with South West Communications Group Ltd. These General Terms and Conditions of the Customer’s Contract are totally separate and are different on a stand alone basis to those of South West Communications Group Ltd.
1.2. Price does not include VAT which shall be paid in addition to the Price at the then prevailing rates.
1.3. In the event of conflict between these General Terms and Conditions and any specific equipment and/or service terms and conditions supplied by the Company then the specific equipment and/or service terms and conditions shall prevail but only to the extent of the conflict.
1.4. Any quotation given by the Company does not constitute an offer and the Company reserves the right to withdraw or revise the same at any time prior to acceptance or delivery of the Customer’s order. This includes but is not limited to price changes caused by exchange rate fluctuations, supplier and Network Supplier price changes and circumstances revealed on site during preparations for works.
2.0 Contract and Duration
2.1. The term is as set out in the relevant Order or in the absence of such term an initial term of 5-years (“Initial Term”) and will continue yearly thereafter until terminated by either party on giving no less than 42 days written notice delivered by registered post. Such notice to terminate at the end of the Initial Term or at the end of any following year but not otherwise. Notwithstanding the previous sentence, the Company shall be entitled to terminate this Contract if the Customer has committed any breach of this Contract and has not remedied such breach with 14 days notice to that effect from the Company.
In the event of an agreement being re-signed or extended, or for any additional changes, or extras or add on services, then this shall vary the charges and will extend the Initial Term for all the Services in the Product Group being charged in line with the Initial Term of the most recent agreement or a previous agreement for the same, whichever is the longer. The Company is unable to provide separate or mixed termination dates for Product Grouped services. For the avoidance of doubt this shall apply to agreements detailing lines and minutes separately as a single Product Group.
2.2. If the Customer purports to terminate the Contract during the Initial Term or subsequent yearly renewal the charges shall nevertheless continue to be payable as if the Contract had continued up until the end of the Initial Term or yearly thereafter. This charge can be aggregated with payment due in full on presentation of an invoice to the Customer. It is intended that the charges applicable to this agreement shall be fixed for the Initial Term. However, the Customer acknowledges and accepts that where prices are increased to the Company by its Network Suppliers, then in turn the Company will increase charges to the Customer by a similarly proportional amount. The Customer will agree to pay these varied charges until the end of this Contract and subject to a written notification by the Company of these changes.
2.3. This Contract may be assigned by the Company but not by the Customer.
2.4. Without prejudice to clause 2.2, the Company reserves the right to modify the Conditions set out in the Contract at anytime after the expiry of the Initial Term. All renewals will be made under the Company’s Contract Conditions prevailing at the time of renewal. Charges may increase at the beginning of each renewal.
2.5. Any typographical error, clerical or other error or omission in any sales literature, quotation, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.6. The Contract shall be deemed to have been made only when the Company issues a written acceptance of an Order submitted by the Customer or upon commencement by the Company of the Equipment and Services. The details of which forms the subject of each Contract shall be that specified in the acceptance of the order which shall be conclusive as to what was ordered.
2.7. The Customer shall be responsible to the Company for ensuring the accuracy of terms of any Order submitted by it to the Company and for giving the Company any information requested by the Company relating to the Service within sufficient time to enable the Company to perform the Contract in accordance with the Conditions. The Company shall not be liable for any delay or failure to comply with its obligations hereunder where the same arose as a consequence of the acts or omissions of the Customer or any person acting for and/or on behalf of the Customer.
2.8. Insolvency of Customer. This clause applies if:
2.8.1. the Customer makes any voluntary arrangement with its creditors (or being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
2.8.2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
2.8.3. the Customer ceases, or threatens to cease, to carry on business; or
2.8.4. the Company has reason to believe that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer according.
2.8.5. if this condition applied then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability of the Company to the Customer, and if the Equipment has been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
2.9. Time for payment is of the essence for this Contract. If Contracts are not paid within 7 days after the due date then without prejudice to the Company’s rights and remedies, the Customer shall pay interest on such sum on a day to day basis. This will include after any judgement from the date of last payment to the date of actual payment (both days inclusive) at a rate of 4% above the base rate of Lloyds TSB plc from time to time in force compounded quarterly. Such interest shall be paid on demand.
2.10. For the avoidance of doubt and without prejudice to the rights set out in clause 2.9, if any payment has not been received by the due date, the Company shall be entitled to:
2.10.1. suspend (in whole or part at its absolute discretion) the provision of the Equipment and/or Services. Service will be reinstated when the overdue payment is received (along with any reconnection charge); and/or
2.10.2. appropriate any payment made by the Customer to such items as the Equipment (or the Equipment supplied under any other contract between the Company and the Customer) as the Company may think fit; and/or
2.11. Furthermore the Company shall be entitled to retain any deposit should the Customer seek to cancel the Contract or fail to complete the purchase of the Equipment otherwise than pursuant to its rights hereunder.
2.12. All prices are ex-works.
2.13. Without prejudice to their respective rights under this Contract, the Company and the Customer shall have the right to terminate this Contract forthwith by notice in writing in the event that the other party is in default in its performance or observance of any of its material obligations under this Contract, and, in the case of remediable breach, fails to remedy the breach within a reasonable time specified by the non-defaulting party in its written notice to do so.
2.14. Without prejudice to its other rights (including but limited to the continued liability of the Customer to the Company for the Initial Term and subsequent term of this Contract), the Company shall have the right forthwith to terminate this Contract by notice in writing to the Customer in the event that :
2.14.1. the Customer fails to make any payment when it becomes due to the Company; or
2.14.2. any licence or other consent considered by the Company to be required by it in order to perform its obligations under this Contract (whether for regulatory or economic reasons or otherwise) expires or is revoked; or
2.14.3. a licence under which the Customer has the right to run its telecommunications system and connect it to the Company system is revoked, amended or otherwise ceases to be valid and is not immediately replaced by another valid licence or licence acceptable to the Company.
3.0 Prohibition of Oral Variations:
These Conditions are the sole terms and conditions of the Contract between the Company and the Customer. No variation or modification of these Conditions and no agreement made or purported to be made between the Company and the Customer inconsistent with these Conditions shall be valid or of any effect unless made in writing and signed by a Director of the Company. No representation relating to or in any way connected with the Equipment or Services shall be deemed to be made on behalf of the Company nor shall and such representation bind the Company or the appointed officer of the Company.
4.1. The Equipment is delivered to the Customer when the Company makes it available to the Customer at the Company’s premises or any other delivery point agreed in writing by the Company. The term delivery does not include any element of installation.
4.2. Any dates quoted by the Company for delivery (and where relevant installation) of the Equipment and Services are approximate only and the Company shall not be liable for any delay in the delivery however caused. Time is not of the essence for delivery or installation within this contract.
4.3. If the Customer fails to take delivery of the Equipment or any part of it on the due date and fails to provide any instructions, documents, consents or authorisations required to enable the Equipment to be delivered on the due date the Company shall be entitled, upon giving notice to the Customer, to store or arrange for storage of the Equipment and then any risk in the Equipment shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Company all costs and expenses including storage and insurance charges.
4.4. Where the Equipment is to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated. Payment shall be required from the Customer for delivered equipment or services (or part thereof on a pro rata basis) in accordance with the Company’s normal payment terms.
4.5. If the Company fails to deliver the Equipment (or any instalment) for any reason other than any cause beyond the Company’s reasonable control or the customer’s fault, and the Company is reasonably liable to the Customer, the Company’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Equipment.
4.6. Where services and or equipment are delivered on a staged basis as part of a larger solution then payment for such is required from installation of that particular component part for the solution.
5.0. Title and Risk
5.1. Risk in the Equipment shall pass to the Customer when the Equipment is delivered to the Customer.
5.2. Notwithstanding delivery and the passing of risk in the Equipment ownership of the Equipment shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Equipment.
5.3. Until such time as ownership in the Equipment passes to the Customer, the Customer shall hold the Equipment in a fiduciary capacity as bailee and shall store it or mark it so that it can be identified as the goods of the Company and the Company shall be entitled at any time to require the Customer to deliver up the goods to the Company and if the Customer fails to do so to enter upon any premises of the customer or any third party where the Equipment is stored and repossess the Equipment.
5.4. The Company shall be entitled to maintain an action for the price of the Equipment notwithstanding that ownership in it has not passed to the Customer.
5.5. The Customer shall not be entitled to pledge or in any charge by way of security for any indebtedness any of the Equipment which remains the property of the Company, but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
5.6. Title in Mobile, TalkiP, Hosted, DSL, WiFi and Leased Line/WAN Equipment remains with the Company, however the Customer bears the risk in the Equipment and will be liable to the Company for the full retail recommended price. No title or property rights accrue with telephone numbers or IP numbers. These can be changed or withdrawn at anytime without recourse by the customer.
5.7. Where Equipment is rented or similar, title does not pass to the Customer, but the Customer retains the risk in the Equipment as per clause 5.6.
6.1. Save as required by law, the Company does not warrant the Services or Equipment (or any of them) against failure or performance. The Company disclaim and the Customer waives all other warranties, express or implied, with respect to the Services or the Equipment, arising by law or otherwise. This includes without limitation any implied warranty or satisfactory quality, fitness for a particular purpose and any obligation, liability, right, remedy, claim in tort, notwithstanding any fault, negligence, strict liability or product liability of the Company (whether express or implied) so far as the law permits.
6.2. Save as required by law, the Customer agrees that the Company is not liable in Contract or tort (other than fraudulent or negligent misrepresentations) or otherwise arising out of or in connection with these Conditions for economic loss (including without limitation, loss of revenue, profits, Contracts, business or anticipated savings), loss of goodwill, information or reputation, indirect or consequential loss whether or not such losses were within the Company’s contemplation, suffered or incurred by the Customer or any third party arising out of or in connection with the provision of the Services (or any part thereof).
6.3. The Company’s maximum liability to the Customer shall be limited to the charges levied by the Company for the Services for one month in respect of the related Order for any one event or up to one year’s charge for a series of separate events or up to 10% of the Equipment value supplied (whichever is the lower). The Customer is under strict obligation to take any appropriate Risk Management procedures that could fully mitigate or nullify any actual or potential loss. Such Risk Management may include but not be limited to disaster recovery and/or business continuity planning. The Company is not responsible for the Customer’s Risk Management planning.
6.4. The Customer agrees that the Company is not liable as above for the actions of its Network Suppliers, third parties and sub-Contractors that the Company has or continues to rely upon to discharge its obligations to the Customer. The Customer acknowledges the Company can be wholly reliant on these parties for the supply of any and all Services.
6.5. Nothing in these Conditions shall exclude or limit liability for death or personal injury resulting from the Company’s negligence.
6.6. On occasions the Company may liaise with Network Suppliers (e.g. BT) or sub-contractors on the Customer’s behalf who will provide services direct to the Customer. In such circumstances, any contract is between the Customer and the Network Supplier, third party or subcontractor and the Company shall have no liability to the customer for any delay, damage or loss suffered by the Customer as a result of such contract and the Customer will indemnify the Company in full against any claim cost damage or expense incurred by it as a consequence of the Customer failing to adhere to its agreement with such Network Supplier and/or subcontractor and/or third party.
6.7. Except for clause 6.5 above, any liability established in accordance with clause 6.3 above shall be settled in the equivalent value of service provision only from the Company to the Customer.
6.8. The Company has no liability or obligations where the Customer contracts directly with another supplier that happens also to supply the Company as well. The Customer must settle all liabilities with that supplier directly.
7.0. Intellectual Property
7.1. All Intellectual Property provided by the Company (including without limit the Documentation) is owned by and remains vested in the Company.
7.2. The Customer shall take all such steps as shall be necessary to protect the Company’s Intellectual Property and confidential information in the Documentation and without prejudice to the generality of the foregoing shall not copy or reproduce the same nor distribute, sell or disclose the contents of the same to any third party. The Customer shall have appropriate security in place to protect information and communication systems from any threat from whatever source.
7.3. The Intellectual Property in any operating and application software provided by the Company in the Equipment remains vested in the Company or in the Company which has authorised the Company to provide the same. All rights are reserved.
7.4. In the event that new Intellectual Property is created as a result of the Contract, the Customer acknowledges that such Intellectual Property and all rights attached shall belong to the Company unless otherwise agreed in writing by a Director of the Company. All rights are reserved. The Customer shall at all times protect the Intellectual Property of the Company.
8.0. Force Majeure
Neither party shall be liable in performing any of its obligations under the Contract if caused by circumstances beyond reasonable control of the party and where applicable the parties shall be entitled to a reasonable extension of time for the performance of such obligations.
No waiver, delay or indulgence by either party in enforcing the provisions of the Contract shall prejudice or restrict the rights of that party. Nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy conferred upon or reserved for either party by the Contract, is exclusive of any other right, power or remedy available to that party and such right, power or remedy shall be cumulative.
Each party undertakes to the other to keep all information concerning the business and affairs of the other that it shall have obtained or received as a result of discussions leading up to or entering into the Contract. Apart from that which is already in its possession (other than as a result of a breach of this clause) or is in the public domain or where the Customer consents to the release of such information. Each party shall ensure that its employees are aware of and comply with the provisions of this clause. The foregoing obligations as to confidentiality shall survive any termination of the Contract.
11.0. Entire Agreement
The Contract supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between parties relating to the Service and Equipment.
12.0. Notices, Severance, Pre-Estimate of Loss, Third Party Rights and Governing Law
Any notices (except for termination Section 2.0) shall be treated as properly given if sent by post or e-mail to the party concerned at its last known address. Notices sent by post shall be deemed to have been served 48 hours after posting and if by e-mail transmission, when dispatched. The invalidity of any individual provisions of these Conditions shall not affect the validity of the remaining provisions. The parties acknowledge and accept that any additional charges levied by the Company against the Customer for breach, non-performance and/or early termination are genuine pre-estimates of loss and do not constitute a penalty. No third party rights accrued under the terms of this Contract. The Contract shall be governed by and construed in accordance with the laws of England shall be subject to the jurisdiction of the English courts.
Please download the rest of our Terms & Conditions here