Hostcomm Terms and Conditions
1. INTERPRETATION
1.1 These definitions and rules of interpretation apply in this Agreement.
Agreement: the Quotation, these Terms and Conditions, the Special Terms (if any) and the Proposal.
Agreement Date: the date on which this Agreement becomes effective.
Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in [London].
Change Control Procedure: the procedure set out in Schedule 1.
Confidential Information: all information, whether technical or commercial, where the information is: (i) identified as confidential at the time of disclosure; or (ii) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Equipment: any equipment to be purchased by the Customer from Hostcomm listed in the Quotation
Fees: the charges in respect of the Services, together with any charges arising from any agreed further services.
Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, design rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Quotation: Hostcomm’s quotation to the Customer.
Services: the services to be provided by Hostcomm pursuant to this Agreement listed in the Quotation or subsequently agreed in writing.
Software: any software supplied as part of the Services.
and other capitalised terms have the meanings set out in the Quotation. References to including and include(s) mean respectively including without limitation and include(s) without limitation.
2. TERM
This Agreement shall commence on the Agreement Date and shall continue, unless terminated earlier in accordance with clause 15, until terminated by the Customer giving 30 days notice expiring at the end of the Initial Term or any anniversary of that date.
3. CUSTOMER RESPONSIBILITIES
3.1 The Customer acknowledges that Hostcomm’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to Hostcomm. Accordingly, the Customer shall provide Hostcomm with access to, and use of, all personnel, information, data and documentation reasonably required by Hostcomm for the performance by Hostcomm of its obligations under this Agreement.
3.2 The Customer shall use Hostcomm Services in accordance with the manuals or instructions provided by Hostcomm. The Customer acknowledges that all Customer premises data and voice network infrastructure, LAN, and IP voice equipment including but not limited to routers, switches, firewalls, cable plant, analogue converters, analogue telephone adaptors, modems, fax machines, IVR devices, CTI devices, IP phones, IP soft phones, servers and personal computers (“Customer Network”) is the responsibility of the Customer.
3.3 The Customer acknowledges that Hostcomm is not responsible for any ongoing support and maintenance of the Customer network.
3.4 Customer agrees to use the Services in accordance with the guidelines set by Ofcom in the statement “Revised statement of policy on the persistent misuse of an electronic communications network or service” dated September 2008.
3.5 The Customer agrees to comply with the terms of Schedule 2.
4. HOSTCOMM RESPONSIBILITIES
4.1 Hostcomm shall provide Customer IT point of contact or Customer vendor IT point of contact with customer network IP voice minimum system, compatibility and LAN configuration documentation outlining IP voice best practices.
4.2 For Services that support quality of service e.g. IPVPN or leased lines the quality of the phone call will be business standard at all times. Currently broadband services are provided on a contended basis. Because of this Hostcomm cannot guarantee a consistent level of quality for broadband-based service although in our experience a 20:1 contention based service or better is acceptable.
5. PROJECT MANAGEMENT
5.1 Each party shall appoint a project manager who shall provide professional and prompt liaison with the other party and have the necessary expertise and authority to commit the relevant party.
6. CHARGES AND PAYMENT
6.1 The Customer shall pay the Fees to Hostcomm in accordance with the Payment Schedule as set out in the Quotation and any Rates Sheet.
6.2 Usage charges including but not limited to outbound PSTN charges, calling card calls & one time charges shall be billed at the end of the month in which they are incurred. Monthly recurring charges shall be billed in advance in the month preceding the month to which the charges apply.
6.3 The Customer shall, not more than 7 days after the Agreement Date, provide to Hostcomm valid approved purchase order information acceptable to Hostcomm and any other relevant valid, up-to-date and complete contact and billing details.
6.4 The Customer shall pay each invoice within 7 days after the date of such invoice.
6.5 Hostcomm may vary the call charges on a monthly basis and will give as much notice as practicable, given they only usually get a week’s warning.
6.6 Hostcomm reserves the right to terminate, suspend and or charge the Customer for above normal business, non-business, excessive or abusive use of Hostcomm network facilities.
6.7 Any further services that both parties agree to add after the effective date shall be added at Hostcomm list prices unless otherwise agreed by Hostcomm
6.8 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are, non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Hostcomm’s invoice(s) at the appropriate rate.
6.9 Hostcomm shall be entitled to charge interest on overdue amounts at the rate of 1.5% per month.
6.10 In the event that the Customer fails to pay any invoice by its due date, if Customer is unable to pay its debts when due or Hostcomm, in its sole discretion, determines it appropriate, Hostcomm may require Customer to provide a deposit, provide a letter of credit, or provide a satisfactory guarantee. Any advance payment may be applied against Customer’s arrears.
6.11 The Customer may at any time request Hostcomm to vary the Services by substituting all or part of the Services with new services. No charge will be made for such a change provided the monthly recurring charge for the substituted services is equal to or greater than that of the Services being terminated. This does not apply in the case of rented equipment.
6.12 Hostcomm may at any time vary the fees on giving 30 days notice to the Customer. The client may give 30 days notice to terminate this agreement during that period and the variation shall not take effect during that notice period.
7. SUSPENSION
7.1 If Hostcomm has not received payment within 14 days after the due date, or if the Customer is in breach of any obligation, and without prejudice to any other rights and remedies it may have, Hostcomm may after giving notice to the Customer suspend all or part of the Services.
7.2 Any costs or expenses incurred by Hostcomm by reason of such suspension or removing the suspension after payment shall be charged to the Customer.
8. WARRANTIES
8.1 Hostcomm shall perform the Services with reasonable care and skill.
8.2 Hostcomm warrants to the Customer that the Equipment is free from defects of workmanship and materials. The Supplier undertakes (subject to the remainder of this condition 12), at its option, to repair or replace Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within 90 days of delivery and installation.
8.3 Hostcomm shall provide Customer notification of feature and function updates to as they become available without additional charge to the Customer. Hostcomm shall decide upon the contents of such updates in its sole discretion.
8.4 The warranties set out in clause 8 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this Agreement. Without limitation, Hostcomm specifically denies any implied or express representation that the Services will:
(a) operate in conjunction with any hardware items or software products other than with those that are identified in the Quotation; or
(b) operate uninterrupted or error-free.
8.5 This Agreement sets out the full extent of Hostcomm’s obligations and liabilities in respect of the supply of the Services.
8.6 The sole remedy for breach of the warranty under this clause 8 other than as set out in clause 8.2 shall be correction of any defects by Hostcomm within a reasonable time from notification by the Customer of the defect that constitutes such breach.
9. TITLE & RISK FOR HOSTCOMM EQUIPMENT
9.1 Hostcomm shall retain title to all equipment, software and associated property provided by Hostcomm used in connection with providing the Services to the Customer. Upon expiration or termination of the Agreement for any reason Customer shall surrender all Hostcomm equipment, software and associated property, if any, to Hostcomm in the same condition as installed, with the exception of ordinary wear and tear. Customer shall be liable to Hostcomm for replacement of any equipment, software and associated property lost, stolen or damaged while in the care of Customer.
10. LIMITATION OF LIABILITY
10.1 This clause 10 sets out the entire financial liability of Hostcomm (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of this Agreement;
(b) any use made by the Customer of the Services or the Equipment; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
10.2 Except as expressly and specifically provided in this Agreement all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
10.3 Nothing in this Agreement excludes the liability of Hostcomm:
(a) for death or personal injury caused by Hostcomm’s negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) for fraud or fraudulent misrepresentation; or
(d) any other liability which cannot be excluded or limited under applicable law.
10.4 Subject to clause 10.2 and clause 10.3:
(a) Hostcomm shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, damage to software, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Hostcomm’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid in the previous 12 month period.
10.5 Hostcomm shall not be liable for:
(a) any non-delivery of Equipment unless the Customer notifies them in writing of the failure to deliver within 7 days after the scheduled delivery date.
(b) a breach of the warranty contained in condition 8.2 if they are not given written notice of the defect within 7 days of discovery and the Equipment is then returned for examination or if the Customer makes any use such Equipment or alters or repairs such Equipment
11. LICENCE & INTELLECTUAL PROPERTY RIGHTS
11.1 The Intellectual Property Rights in any Software are, and shall remain, the property of Hostcomm, and Hostcomm licences the use of the Software to the Customer for use for its internal purposes only in accordance with any documentation provided and instructions given by Hostcomm.
11.2 Hostcomm shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Services, when used in accordance with Hostcomm’s instructions, infringe any Intellectual Property Rights of a third party in the UK.
12. INDEMNITY
12.1 The Customer shall indemnify and defend Hostcomm and its officers, directors, agents and employees from and against all fines, claims, liabilities, damages, settlements, solicitors fees, and expenses resulting from any breach by the Customer and its officers, directors, agents, and employees of Ofcom regulations.
12.2 The Customer may not assign or novate the benefit or burden of this Agreement in whole or in part without Hostcomm’s written consent.
12.3 The Third Party products and services shall be supplied in accordance with the relevant supplier’s standard terms.
13. 999 SERVICE
13.1 The Customer agrees and acknowledges that due to the unique nature, portability and mobility of voice Services provided over data networks (IP Telephony), including the Services, emergency 999 operator services cannot be provided to the Customer by Hostcomm with certainty, consistency and reliability. The Customer agrees to indemnify Hostcomm and Hostcomm personnel from any and all claims, damages, fines, penalties and any other liabilities, including legal fees, arising out of inaccuracy of any and all claims, damages, fines, penalties and procedure and personnel relating to the activation and implementation or provision of 999 services as related to Services. Hostcomm and Hostcomm personnel shall not be liable for civil damages to any person, corporation or other entity for any loss or damage caused by an act or omission in the design, development, installation, maintenance or provision of 999 services other than an act or omission constituting gross negligence or willful misconduct.
14. INDEPENDENT CONTRACTOR
14.1 The Customer acknowledges that Hostcomm is not the same party as any other any value added reseller, service provider and any other agent (“Contractor”), and that this agreement constitutes a separate and independent obligation by the Customer which is unrelated to the performance or non-performance of any Contractor. The Customer shall not have the right to reduce, decline to pay or otherwise fail to honour its obligations under any Contractor agreement as a result of Hostcomm’s performance, non-performance of any obligation under this agreement and the Customer shall not have the right to reduce, decline to pay or otherwise fail to honor its obligations under this agreement as a result of any Contractor performance or non-performance of any obligations under any agreement with customer.
15. TERMINATION
15.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) the other party ceases, or threatens to cease, to trade.
15.2 Hostcomm mat terminate the Services by giving:
(a) 90 days notice in writing in the event that Hostcomm determines that the Services are no longer commercially feasible; and
(b) 5 days notice in the case of non-payment of any sum due.
15.3 On termination of this Agreement for any reason, all outstanding sums and Fees shall become immediately payable by the Customer.
15.4 In the event the Services are terminated by Hostcomm (other than under clause 14.2, the Customer shall be liable for all applicable charges resulting from the termination including but not limited to deactivation of all carrier network access circuits.
15.5 On expiry or termination of this Agreement, all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
16. CHANGE CONTROL
Any request to change the scope of the Services shall be processed in accordance with the Change Control Procedure.
17. FORCE MAJEURE
Hostcomm shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control and which Hostcomm could not have reasonably avoided or prepared for, including, without limitation, strikes, lock-outs or other industrial disputes failure of a utility service or transport or telecommunications network.
18. CONFIDENTIALITY
18.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
18.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
18.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
18.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
18.5 The Customer acknowledges that details of the Service, and the results of any performance tests of the Service, constitute Hostcomm’s Confidential Information.
18.6 This clause 16 shall survive termination of this Agreement, however arising.
19. PUBLICITY
Hostcomm may refer to the Customer or this Agreement in any publicity or advertising material with the Customer's written consent, such consent not to be unreasonably withheld.
20. VARIATION
A variation of this Agreement shall be in writing and signed by or on behalf of both parties to this Agreement.
21. WAIVER
21.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
21.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
22. SEVERANCE
22.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23. ENTIRE AGREEMENT
23.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
23.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
23.3 The Special Terms (if any) shall prevail over these Terms and Conditions.
24. ASSIGNMENT
24.1 The Customer shall not, without the prior written consent of Hostcomm, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
24.2 Hostcomm may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
25. THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
26. NOTICES
26.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out on the Quotation, or such other address as may have been notified by that party for such purpose.
26.2 A notice delivered by hand shall be deemed to have been received when delivered). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received 48 hours from the date of posting, in the case of registered airmail, 5 days from the date of posting. For all methods of notice, if delivery is not in business hours, at 9 am on the first Business Day following delivery.
27. GOVERNING LAW AND JURISDICTION
27.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
27.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1 CHANGE CONTROL PROCEDURE
1.1. If Hostcomm receives from the Customer a request to change the Services or wishes to propose a change to the Services:
(a) it will within a reasonable time but without charge, either provide a written estimate to the Customer of:
(i) the likely time and cost required to implement the change; and
(ii) any likely effect of the change on the App or this Agreement not included in the request, or, alternatively
(iii) inform the Customer of the time and cost of assessing the change request on a time and materials basis.
(b) if the Customer does not wish to proceed, there shall be no charge, change to the Services or this Agreement; and
(c) if the Customer wishes to proceed with the change or the assessment, Hostcomm shall do so after Agreement on the necessary variations to its charges, the Services and any other relevant terms of this Agreement are confirmed in writing.
Schedule 2 Minimum configuration and maximum usage
A Customer network that supports and is compatible with Hostcomm Services requires a network infrastructure that consists of: Cisco 800 series router or better and a 10/100 LAN switch configured in accordance with Hostcomm guidelines. CPU utilization of Cisco Routers must not exceed 50%. CPU utilization of LAN switch must not exceed 30%. Cisco router software (if applicable) must be version IOS 12.0 or later. Customer network configuration must include a VLAN for voice and a VLAN for data. Personal computers for use with Hostcomm desktop applications must be Pentium III with 133 MHZ processors and 64Mb RAM or higher. PC operation system must be Windows 98, 2000 , XP or higher.
Schedule 3 SLA
The following service level guarantees combine to form Hostcomm’s Service Level Agreement (SLA) for Services. Coverage of this SLA is initiated by the opening of a service ticket. Service Tickets are opened by Customer submission. Hostcomm support personnel may open Service tickets. Customers shall retain records of all issued service tickets for tracking purposes and for submitting claims for credit under the terms of this SLA.
1.1 Service Delivery: Hostcomm activation of Services on the Customer requested activation date. The activation date is subject to approval by Hostcomm. The date of activation is dependant on the Customer submission of information as deemed necessary by Hostcomm for delivery of Services. This information includes but is not limited to: Customer’s LAN configuration, voice system design, user specifications and service provider bandwidth and bandwidth delivery dates. The date of completed service delivery is the date that Hostcomm activates the Services.
1.2 Mean Time to Respond: The mean time to respond to a service impacting issue is 15 minutes on a monthly average basis. Hostcomm support personnel will respond by opening a Service Ticket either in response to a customer request or upon automatic notification by Hostcomm’s management systems. Mean Time to Respond is calculated by taking the monthly aggregate of all response times relating to repair or technical issues reported by the Customer and dividing by the total number of Service Tickets for a given month and dividing by the total number of Service Tickets opened for these issued.
1.3 Mean Time to isolate: The mean time to isolate to a service impacting issue is 1 hour on a monthly average basis. Mean Time to Isolate will commence with the opening of a Service Ticket by Customer with Hostcomm Support Personnel. Mean Time to Isolate is calculated by taking the aggregate amount of time to isolate the service impacting issues for all Service Tickets opened that month.
1.4 Mean Time to Repair: The mean time to repair (MTTR) to a service impacting issue is 2 hours on a monthly average basis. MTTR will commence with the isolation of the issue as detailed in the Service Ticket and end upon the resolution and approved closure of the Service Tickets by the Hostcomm Support Personnel and or Customers authorized Representative. MTTR excludes customer time to make the requested network changes and/or reinstall equipment. MTTR is calculated by taking the aggregate amount of time to close all Service Tickets for a given month and dividing by the number of total Service Tickets opened that month.
1.5 Account / User Revocation: Following a Customer request to Hostcomm Support Hostcomm guarantees revocation of a User Account within 2 hours. The time to revoke a User Account will commence upon the receipt of the request from the authorized Customer administrator.
2.0 General Exclusion
For the purposes of paragraph 3 of this clause the Service downtime associated with the following shall be ignored:
2.1 Service downtime that the customer did not report within 5 working days.
2.2 Service outages not supported or associated with Service Tickets
2.3 Issues reported that are not under the control of Hostcomm and/or do not impact the Hostcomm network and Services including but not limited to Customer LAN issues, access bandwidth, service provider bandwidth, Internet bandwidth, IP Phones, IP soft phones, operating system capability, software compatibility, TAPI compatibility.
2.4 Issue for which Service Tickets are already open.
2.5 Hostcomm Network and/or Service maintenance with prior notification.
2.6 Any emergency Network maintenance.
2.7 Failure of customer power, LAN equipment, facilities, access circuit to Hostcomm Network, bandwidth or applications.
2.8 Service delays due to carrier service provider’s inability to deliver circuits and/or network elements.
2.9 Service outages identified as caused by Internet network and/or carrier service providers.
2.10 Any unauthorized acts, use of the Service, errors or omissions by the customer affecting Hostcomm’s ability to provide Service.
2.11 Reasons of Force Majeure such as acts of God, natural disasters or terrorism.
3.0 Billing Adjustment Specifications:
In any one (1) month Hostcomm does not meet its service level guarantees, Customer will be legible to receive credit as follows:
3.1 A credit equal to 1/30 of the Customers Monthly recurring charge (MRC), exclusive of any measured usage, for Services each day in which the Hostcomm Services are affected by a failure to meet the performance level specified by any or one of the service level guarantees.
3.2 A credit equal to 100% of one month of the Customer’s MRC, exclusive of any measured usage, for Services in the event Hostcomm Network and Service is unavailable to Customer’s users for a period of twenty four (24) consecutive hours.
3.3 Credits will be applied to the appropriate elements affected.
3.4 Credits will only be applied if requested by Customer in writing within 5 business days of the reported incident (s) for which credit is requested.
3.5 The credit will be posted on the monthly invoice following the customer’s request for credit.
3.6 In the event that claims under two or more SLA items are simultaneously made; a credit will be applied to the SLA item in the larger credit, the smaller ignored.