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Terms and Conditions

Interpretation

These definitions and rules of interpretation apply in this Agreement.

Agreement: the Quotation, the Service Order Form, these Terms and Conditions, the Special Terms (if any) and the Proposal.
Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.
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.
Customer: the organisation specified on the Quotation.
Effective Date: the date that Hostcomm receives signed confirmation of the client’s acceptance of these Terms and Conditions.
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.
Term of Service: the term of service as set out in the Service Order Form.
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.
Router(s): internet router, firewall or combined unit.
Services: the services to be provided by Hostcomm pursuant to this Agreement listed in the Quotation or subsequently agreed in writing.
Service Order Form: Hostcomm's order form as supplied to the Customer.
Software: any software supplied as part of the Services.

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.

Payment for Services

Hostcomm

Cost of collection
The Customer shall be liable to Hostcomm for any costs incurred by Hostcomm in enforcing any payment or obligation of the Customer under this Agreement including, without limitation, any collection agency cost, reasonable legal fees, and court costs

Guarantees and advance payments
In the event that the Customer fails to pay any invoice on or before its due date, if the Customer is unable generally to pay its debts when due or Hostcomm, in its sole discretion, determines it appropriate, Hostcomm may require the Customer to pay an advance payment in the form of a cashiers or certified cheque, provide a letter of credit, or provide a satisfactory guarantee. Any advance payment may be applied against the Customer's arrears.

Maintenance

Use of Hostcomm Services
The Customer shall use Hostcomm Services in accordance with the guidelines, manuals or instructions provided by Hostcomm from time to time. 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, Internet Connections, 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. Hostcomm shall provide the 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. The Customer acknowledges that Hostcomm is not responsible for any ongoing support and maintenance of the Customer Network. A Customer Network that supports and is compatible with Hostcomm Services requires a network infrastructure that consists of: SIP VOIP compatible Router and a 10/100/1000 LAN switch configured in accordance with Hostcomm guidelines. CPU utilization of Routers must not exceed 50%. CPU utilization of LAN switch must not exceed 30%. Customer Network configuration must include a VLAN for voice and a VLAN for data or a physical separation within the cabling. Personal computers for use with Hostcomm desktop applications must be dual core CPU processors and 2 Gb RAM or higher. PC operation system must be Windows 7 or later. 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. Unauthorized telemarketing, SPAM, mass marketing via email or other actions that are deemed excessive or unacceptable will be a violation of acceptable use of the Services and subject to immediate termination of Service, suspension of Service or additional charges for each violation as determined and notified in writing to the Customer by Hostcomm.

In particular, Customer notes the following

Firewall
The Customer shall inform Hostcomm of the make, model and software version of their Router prior to the Services being implemented. Hostcomm must be made aware of any proposed major changes to the Router configuration or change of Router model in writing 7 days prior to such changes being implemented. If the quality of Hostcomm Services are detrimentally affected by the Customer failing to notify Hostcomm of said changes or through use of an inferior Router to that used at the Effective Date: (i) this will not be grounds for early termination by the Customer; (ii) Hostcomm will only be obliged to use reasonable endeavours to meet the service levels; (iii) the terms of section 26 will not apply, until the Customer reverts back to the previous or a superior Router configuration or model.
Ofcom compliance
The Customer shall use Hostcomm Services in accordance with any relevant Ofcom guidance from time to time, including without limitation the Ofcom statement titled "Persistent Misuse". A statement of Ofcom's general policy on the exercise of its enforcement powers" dated December 2016. To the extent Customer, its officers, directors, agents and/or employees breach Ofcom regulations: a) 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 such breach and b) Hostcomm reserves the right to terminate this Agreement with immediate effect by giving written notice to the Customer.
Quality of the telephony service
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. Current broadband services however 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.

Retention of call detail records (CDRs) and call recordings
Hostcomm will make available CDRs and call recording files for download from the client portal for 2 months after the initial creation date. After 2 months they will be archived and can be made available following a ticketed request for which there may be a charge. The Customer should ideally make monthly or bi-monthly backups to their local network.

Telephone Preference Service (TPS)
Where the Customer is filtering outbound calls against Hostcomm's licensed TPS database the Customer accepts that the database is updated every 15 days although obligation is to refresh every 28 days. The Customer agrees to limit Hostcomm's liability as per clause 20. Hostcomm reserves the right to terminate this Agreement with immediate effect by giving written notice to the Customer if it has evidence or strongly suspects that the Customer is using Hostcomm Services to contact TPS-registered numbers.

GDPR & ePrivacy
The Customer shall use Hostcomm Services in accordance with the GDPR and ePrivacy regulations as detailed on the Information Commissioner’s website https://ico.org.uk commencing on 25th May 2018. Examples include but are not limited to:
1. Customers should not send personal data to Hostcomm by email or any other insecure method.
2. No call recordings to be sent my email.
3. The customer’s own personal data held on our systems must be accurate.
4. When personal data is uploaded to our systems the customer must confirm that it complies with all regulations (GDPR & ePrivacy).
5. Customers should notify us if they have any data that is not GDPR and ePrivacy compliant. Such data will be removed.

Title to Equipment and Risk of loss (only applicable if equipment is rented)

Hostcomm shall retain title to all Equipment, Software and associated property residing in the Customer's premises used in connection with providing the Services to the Customer. Upon expiration or termination of the Agreement for any reason the Customer shall surrender all Equipment, Software and associated property, if any, to Hostcomm in the same condition as installed, with the exception of ordinary wear and tear. The Customer shall be liable to Hostcomm for replacement of any Equipment, Software and associated property lost, stolen or damaged while in the care of the Customer.

Independent Obligation

The Customer hereby acknowledges that Hostcomm is not the same party as any other 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 abate, decline to pay or otherwise fail to honour its obligations under any Contractor agreement as a result of Hostcomm's performance or non-performance of any obligation under this Agreement and the Customer shall not have the right to abate, decline to pay or otherwise fail to honour its obligations under this Agreement as a result of any Contractor performance or non-performance of any obligations under any agreement with the Customer.

Software

Any Software incorporated into or provided for use in or with Hostcomm Services (whether initially, as part of maintenance or support or otherwise) is not sold, but rather licensed by Hostcomm or a relevant third party to Customer solely for the Customer's internal use in or with applicable product strictly in accordance with the documentation and any other use restrictions applicable for that product. Such license (a) is non-exclusive, (b) is non-sub licensable subject to the terms and conditions of this Agreement and (c) does not include the right to (and the Customer will not, directly or indirectly) modify, reverse engineer (except to the extent applicable statutory law permits reverse engineering restrictions), incorporate or use in any other works, create derivatives of, or copy any portion of the Software (except as specifically authorized in documentation provided by Hostcomm for purposes of installation, support or maintenance), or to use the Software or product for the benefit of any third party. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms herein.

Warranties and Disclaimer

Hostcomm represents and warrants that, except for any outside material provided by the Customer to Hostcomm, the Customer's use of the Services as contemplated by this Agreement will not infringe or violate any rights of any person or entity. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute, common law or otherwise, are hereby excluded, to the maximum extent permitted by law, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

Term

The term of this Agreement shall commence upon the date of the Customer's execution of the Service Order Form ("Effective Date") and shall continue thereafter for the initial Term of Service as specified in the Service Order Form. Following the expiration of the initial Term of Service, this Agreement shall automatically be renewed for successive one (1) month terms (each a "Renewal Term"), unless terminated with written notice by Customer to Hostcomm at least 30 days prior to the expiration of the initial Term of Service or a Renewal Term. Prior to any renewal period all pricing, fees, rate classifications and charges related to Service are subject to change by Hostcomm upon 30 days notice to Customer.

Termination

By Customer:

Customer may terminate upon 30 days written notice to Hostcomm portions of Services and substitute other Services without incurring a penalty charge provided that the total monthly recurring charge for the substituted Services are equal or higher that the terminated Services.
Customer may terminate the Agreement on written notice to Hostcomm if Hostcomm fails to perform any material condition of this Agreement and such failure remains incurred for a period of thirty (30) days following Hostcomm's receipt of written notice from the Customer specifying the nature of the failure. In no circumstance shall the Customer be relieved of its obligation to make payments for all unpaid and outstanding amounts due to Hostcomm that have been accrued as of the date of termination or expiration of this Agreement and the Customer shall pay in full all charges for Services rendered through to the termination date.

By Hostcomm:

Services may be terminated by Hostcomm on written notice to Customer in the event that the Customer fails to perform any obligation to make payments under this Agreement and such failure remains for a period of five (5) days after Customer has received written notice from Hostcomm specifying the nature of such failure. In the event Services are terminated pursuant this section, Customer shall be liable for all applicable charges resulting from said termination including but not limited to deactivation of carrier network access circuits. Services may be terminated by Hostcomm on written notice to Customer in the event that Hostcomm determines that the Services are no longer commercially feasible, provided that Hostcomm shall provide thirty (30) days written notice to Customer prior to such termination. Services may be terminated by Hostcomm on written notice to Customer in the event Customer denies Hostcomm access to the Customer Local Area Network over which Hostcomm Services are being provided including access to Customer premises, to examine, maintain and or effect corrective actions deemed necessary by Hostcomm to fulfil Hostcomm obligations as enumerated herein. Hostcomm may suspend the provision of Services on written notice to Customer in whole or part with immediate effect and without giving any period to remedy a breach if it has reasonable grounds to consider that the Services are being used fraudulently or inappropriately or for any unlawful or criminal activities. Services may be terminated by Hostcomm on written notice to Customer in the event that that Customer becomes insolvent, dissolved, subject to a winding up petition, ceases trading or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986.

Effect of termination

The termination or expiration of this Agreement shall not relieve Customer of: a) its obligations under this Agreement or any Service Order Form and b) Customer's obligation to make payments for all unpaid and outstanding amounts due to Hostcomm that have been accrued as of the date of termination or expiration of this Agreement including charges due during the Term of Service and those as set out in clause 13. On termination for any reason:

All rights granted to Customer under this Agreement shall cease;
Customer shall cease all activities authorised by this Agreement;
Customer shall immediately pay to Hostcomm any sums due to Hostcomm; and
Customer shall immediately destroy or return to Hostcomm (at Hostcomm's option) all copies of the documentation and Equipment provided by or on behalf of Hostcomm then in its possession, custody or control and, in the case of destruction, certify to Hostcomm that it has done so.
Hostcomm cease provision of the Services.

Indemnification

Customer shall indemnify and defend Hostcomm and its officers, directors, agents and employees from and against all third party claims, liabilities, damages, settlements, solicitor’s fees, and expenses resulting from any breach by Customer of the terms of this Agreement.
Hostcomm shall indemnify and defend Customer and its officers, directors, agents, and employees from and against all third party claims, liabilities, damages, settlements, solicitor’s fees and expenses resulting from any breach by Hostcomm of third party Intellectual Property Rights. The foregoing obligation of Hostcomm is conditional on Customer discharging the following obligations. If any third party makes a claim, or notifies an intention to make a claim, against Customer which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), Customer shall:

As soon as reasonably practicable, give written notice of the Claim to Hostcomm, specifying the nature of the Claim in reasonable detail;
Not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Hostcomm;
Give Hostcomm access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Customer, so as to enable Hostcomm and its professional advisers to examine them and to take copies for the purpose of assessing the Claim; and
Take such action as Hostcomm may reasonably request to avoid, dispute, compromise or defend the Claim.
The foregoing indemnity provided by Hostcomm does not apply with respect to Services, product, portions or components thereof: (i) made in whole or part in accordance to Customer specifications or requests, (ii) which are modified after shipment (if the alleged infringement relates directly to such modification) and (iii) combined, processed or used with other products, processes or materials where the alleged infringement relates to such combination, process or use, and (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the infringement. Customer will indemnify Hostcomm and its officers, directors, agents and employees from all damages, settlements, solicitors fees and expenses related to a claim of infringement or misappropriation excluded from Hostcomm's indemnity obligation by the immediately preceding sentence.

Termination, Survival and Termination liability

Sections 1, 2, 11, 13, 15 and 18 and any Hostcomm accrued rights to payment shall survive the termination or expiration of this Agreement.

Confidentiality and Intellectual Property

Each party agrees that it will not directly or indirectly, during or after the term disclose in any manner, or use or permit others to use any Confidential Information or material regarding the disclosing party, any of its parent, subsidiary or affiliated companies, employees and/or businesses, which is compiled by, obtained by, or furnished to the recipient party by the disclosing party. It is understood that the foregoing obligation shall not apply to any part of the information which (a) is or becomes available to the public (other than by disclosure by the recipient party) or (b) becomes available to the recipient party on a non-confidential basis from a source which is entitled to disclose it to a recipient party. The parties acknowledge and agree that any proprietary property or content, including copyrights, trademarks, service marks, patents or other intellectual property that has been or will be provided by either party to the other party shall remain the sole and exclusive property of the providing party and no license or other interest with respect thereto is hereby granted to the other party except as expressly provided herein.

Force Majeure

Hostcomm will not be responsible for the non-performance or delay in performance of any of its obligations under this Agreement due to any cause beyond its reasonable control.

Taxes and Fees

Customer shall pay any taxes and regulatory fees imposed or based upon the provision or use of any of the Services or the charges for them.

Limitation of liability

Hostcomm shall not be liable for any special, indirect, incidental or consequential damages including, without limitation, loss of: income; revenue; profits; sales or business; agreements; anticipated savings; use or corruption of software, data or information; or goodwill (whether such damages were foreseen or not at the time this Agreement was entered into) sustained or incurred in connection with the Equipment or Services furnished under this Agreement. This limitation applies to claims founded in breach of contract, breach of warranty products liability, tort, including both the active and passive negligence of Hostcomm or any other theory or liability. Customer's execution of this Agreement constitutes a waiver of recourse to the VAR for any liability claimed under this Agreement. The total aggregate liability of Hostcomm for direct damages, however arising, shall be limited to the fees paid by the Customer in the 12 months immediately preceding the claim. Customer hereby holds Hostcomm and its agents and employees harmless from and agrees to be responsible for all losses, damages and liabilities resulting from unauthorized use of the Services, including long distance and international calling. Nothing in this Agreement shall exclude or limit Hostcomm's liability for personal injury or death caused by its negligence, fraud or fraudulent misrepresentation or any other liability that cannot be excluded by law.

Emergency Services

Customer agrees and acknowledges that due to the unique nature, portability and mobility of voice services provided over data networks (IP Telephony) and including Hostcomm Services, emergency 999 operator services cannot be provided to the Customer by Hostcomm with certainty, consistency and reliability. Customer agrees to defend, indemnify and hold Hostcomm and Hostcomm personnel harmless from any and all claims, damages, fines, penalties and any other liabilities, including attorney 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 wilful misconduct.

Assignment

This Agreement is not assignable by the Customer without the prior consent of Hostcomm whose consent will not be unreasonably withheld. Hostcomm may subcontract any of its duties under this Agreement but shall retain responsibility for the work subcontracted.

General

If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term and provision hereof shall be invalid and enforceable to the fullest extent permitted by law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation. Hostcomm and Customer each represent that it has the power and authority to enter into this Agreement. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act. This Agreement and any Service Order Form contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

Service Level Agreement

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 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.

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 dependent 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.
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.
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.
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.
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.

General Exclusion

The Service downtime associated with the following shall be ignored:

Service downtime that the Customer did not report within 5 working days.
Service outages not supported or associated with Service Tickets
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.
Issue for which Service Tickets are already open.
Hostcomm Network and/or Service maintenance with prior notification.
Any emergency Network maintenance.
Failure of Customer power, LAN equipment, facilities, access circuit to Hostcomm Network, bandwidth or applications.
Service delays due to carrier service provider's inability to deliver circuits and/or network elements.
Service outages identified as caused by Internet network and/or carrier service providers.
Any unauthorized acts, use of the Service, errors or omissions by the Customer affecting Hostcomm's ability to provide Service.
Reasons of force majeure such as acts of God, natural disasters or terrorism.

Billing Adjustment Specifications

If in any one (1) month Hostcomm does not meet its service level guarantees, Customer will be entitled to receive credit as follows:

A credit equal to 1/30 of the Customer’s 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.
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.
Credits will be applied to the appropriate elements affected.
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.
The credit will be posted on the monthly invoice following the Customer's request for credit.
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.

The maximum amount of service credit that the Customer is entitled to receive from Hostcomm per month is one month’s service fee.

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PCI DSS Certified, TPS Telephone Preference Service, ICO