These terms and conditions (“Conditions”) govern the basis we, Aurora Managed Services Ltd (company registration number (06228885) whose registered office address is 1-2 Castle Lane, London, SW1E 6DR (“Aurora”) will provide to you, the customer as specified on the attached Network Services Agreement (“Customer”, “You”, “Your”). Reference to a “Condition” is to a term set out in these Conditions.
“Agreement” means these Conditions together with the Network Services Agreement (the “Contract”) to which these Conditions are attached.
“Charges” the charges to be paid by You to Aurora for the purchase and installation of Purchased Equipment, installation of Leased Equipment, Maintenance Services, and/or Network Services (as relevant to the Contract), but excluding any amounts detailed on the Contract which are payable as a rental charge (save for any Lessor Maintenance Charges) to a Lessor (as defined in clause 4.1). The Charges may comprise a fixed monthly, quarterly or annual element (“Fees”) together with non-recurring charges based on usage (“Additional Charges”).
“Aurora Maintenance Charges” means the annual charge for the Maintenance Services as stated in the Contract, subject to adjustment under clause 7.4 from time to time.
“Documentation” any specifications, technical manuals, user instructions and other literature relating to Equipment and supplied to You.
“Equipment” means the Purchased Equipment and the Leased Equipment as applicable.
“IP Right” means any copyright, patent, registered design, trademark or other intellectual property right (or applications therefore) of whatever nature subsisting anywhere in the world.
“Leased Equipment” means telecommunications hardware to be leased from a third party by You as set out in the Contract.
“Lessor Maintenance Charges” means the charges payable to Corporate but billed and collected by the Lessor on our behalf, if any, as specified in the Lessor Agreement.
“Maintenance Charges” means the Aurora Maintenance Charges or the Lessor Maintenance Charges, as the case may be.
“Maintenance Services” means the maintenance of the Equipment as set out in the Contract.
“Network Services” means telecommunication network services and/or information communication technologies provided or procured by Aurora including without limitation, VOIP services, national, international, local telecommunication network services, line rental, broadband data services and non-geographical numbers, and other services set out in the Contract or as notified by Aurora in writing from time to time, to be provided upon the terms of these Conditions.
“Purchased Equipment” means telecommunications hardware to be purchased from Aurora by You as set out in the Contract.
“Services” the Maintenance Services and/or the Network Services, as the context requires.
“Site” Customer’s premises as set out in the Contract.
“Small Business” a business comprising of 10 employees or less or as otherwise determined by Ofcom from time to time.
“Software” means any software included with the Equipment or provided to You by Aurora in connection with the Services.
“Termination Fees” shall have the meaning set out in Condition 7.12.3.
3. Conditions relating to Purchase of Equipment
3.1 The price of the Purchased Equipment shall be as set out in the Contract. Aurora may require that a deposit is paid prior to delivery. Aurora shall install the Equipment and You shall pay Aurora the balance of the price of the Purchased Equipment together with any Installation Charge (as set out in the Contract) on or before such installation of the Purchased Equipment.
3.2 Aurora shall use reasonable endeavours to supply the Purchased Equipment on or before the agreed delivery date but shall not be liable for any loss or damage occurring as a direct or indirect result of any delay in delivery of the Purchased Equipment.
3.3 You shall procure that the Site is in a proper condition for such installation and shall make available to Aurora free of charge all such light, heat, air, electric power and other things reasonably required for the installation of the Purchased Equipment.
3.4 Risk in the Purchased Equipment shall pass to You on delivery. Title in the Purchased Equipment shall only pass to You upon payment in full of the price therefor and of all other sums whatever due from You under the Agreement. Until title passes, You shall have possession of the Purchased Equipment as Aurora’s bailee and shall procure that the Purchased Equipment can be readily identified as Aurora’s property.
3.5 Aurora reserves the right to repossess any Purchased Equipment for which payment is overdue. For this purpose You hereby grant Aurora, and its employees and agents, the right to enter upon the Site or any other of Your premises with or without vehicles during normal business hours, which right shall survive notwithstanding the termination or expiry of the Agreement for any reason and is without prejudice to any of Aurora’s accrued rights hereunder or otherwise.
3.6 During a period of seven days following installation Aurora will at its option replace, repair, or refund the price of, any defective Purchased Equipment, after which You will be deemed to have accepted the Purchased Equipment.
3.7 Aurora will use reasonable endeavours, at Your expense, to pass to You the benefit of any warranty offered by the manufacturer and/or Aurora’s supplier of the Purchased Equipment.
3.8 Aurora shall not be liable in respect of:
3.8.1 Defects in the Purchased Equipment arising as a result of any modification or repair carried out by You;
3.8.2 Use of the Purchased Equipment other than in accordance with Aurora’s and/or the manufacturer’s operating instructions, or in any improper way; or
3.8.3 Any defect caused by Your or any third party’s negligence or default.
3.9 Any Software is provided expressly subject to the terms of its license, and you undertake to enter into, and to comply with all terms (including any prohibition on copying, modifying, decompiling, or disclosing Software) of, any license required by the manufacturer/licensor of the Software and to indemnify Corporate against any losses it may suffer if you breach this clause. Corporate makes no representation or warranty in relation to the software and in particular but not by limitation does not represent or warrant that the operation of the software will be uninterrupted or error free or that any specific requirement that you may have informed Aurora of will be met. You acknowledge that Aurora may not successfully diagnose or correct any faults or errors in the Software. No title in any Software shall pass to You under any circumstances.
4. Conditions relating to Leasing of Equipment
4.1 The terms of the agreement under which Leased Equipment is leased to You will be set out in a separate agreement between You and the third party lessor (“Lessor”), to which Aurora is not a party, nor is Aurora the agent of a party. The price for the lease of the Leased Equipment shall be set out in the Contract but shall be payable to the Lessor.
4.2 Where expressly agreed in writing Aurora shall install the Equipment and You shall pay to Aurora any Installation Charge set out in the Contract on or before such installation of the Leased Equipment.
4.3 You shall ensure that the Site is in a proper condition for such installation and shall make available to Aurora free of charge all such light, heat, air, electric power and other necessaries as may be required for the installation and preparation of the Leased Equipment.
5. Conditions relating to Network Services
5.1 All Network Services shall be supplied utilising the telephone lines, cabling, equipment and machinery of such third party telecommunication service provider (“Service Provider”) as Aurora may from time to time select.
5.2 You undertake that you shall not use the Network Services:
5.2.1 For the transmission of any material which is defamatory, offensive or abusive or of an obscene or menacing character;
5.2.2 In a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to rights of copyright or confidentiality);
5.2.3 In any way which is unlawful or fraudulent, or has any unlawful or fraudulent effect; or
5.2.4 In any manner which shall contravene the requirements from time to time of any Service Provider.
5.3 Additional Charges for Services will be calculated by sole reference to the data and records maintained by Aurora which shall be final in determining the amount payable by You, except only in the case of manifest error, and will be shown on a monthly statement issued by Aurora (“Account”). Any such allegation of manifest error must be notified in writing by You to Aurora within 30 days of the date of the applicable Account following which Aurora will investigate and inform You of whether Aurora accepts that there was a manifest error in which case a refund of erroneous Charges shall be made by way of credit against your next Account.
5.4 Aurora may add to any Account any installation charge levied by a Service Provider.
5.5 You shall pay the Charges shown in any Account within 7 days of the date of such Account. The Customer will be liable for any Charges incurred as a result of unauthorised use of the Services whatsoever and howsoever and whether fraudulently, through misuse or otherwise.
5.6 Any unused free call allowance will not be carried forward to any subsequent Account unless otherwise agreed in writing and You will not be compensated in respect thereof.
5.7 Aurora makes no representation or warranty that the Network Services will be available at any particular time or continuously.
6. Conditions relating to Maintenance Services
6.1 Aurora’s obligation to perform Maintenance Services is subject to the conditions that You:
6.1.1 Make available free of charge such computer and communications facilities, office facilities and services and suitable office space as reasonably requested;
6.1.2 Procure that Your employees or any contractors or other third parties at the Site co-operate fully with Aurora and its employees or agents;
6.1.3 Immediately notify Aurora of any fault affecting Equipment and promptly furnish Aurora with such information and documents as it requests;
6.1.4 Procure that Aurora is granted the right to use any IP Rights (including, if applicable, the right to modify software or other materials which are the subject of IP Rights) which it requires in order to supply Maintenance Services;
6.1.5 Procure that adequate electrical power is supplied to the Equipment;
6.1.6 Store, operate and maintain the Equipment in accordance with any relevant user manual or other documentation and maintain appropriate air conditioning, humidity, and other environmental conditions at the Site;
6.1.7 Do not move, or make any addition, repair, modification or adjustment to, the Equipment without the prior written consent of Aurora.
6.2 The Fees do not include any charges for any maintenance which becomes necessary as a result of:
6.2.1 Damage by vandalism, fire, water or adverse weather conditions;
6.2.2 Movement or relocation of the Equipment not performed by or on behalf of Aurora;
6.2.3 Furnishing of the Equipment with accessories or attachments, painting or finishing the Equipment or removing accessories or attachments;
6.2.4 Any breach of Your obligations in the Agreement;
6.2.5 Changes, alterations, additions, modifications or variations to the Site;
6.2.6 Lost or corrupted data arising for any reason (other than Aurora’s negligence), and such services, and any additional services, shall be charged at Aurora’s standard rates; or
6.2.7 Use of the Equipment other than in accordance with Aurora’s and/or the manufacturer’s operating instructions, or in any improper way
6.3 You shall pay Aurora the Fees in advance at the intervals set out in the Contract, the first payment due on or before installation of the Equipment, and you shall pay the Additional Charges monthly in arrears in accordance with Condition 5.5.
6.4 Aurora may appoint the Lessor as its agent to collect all or part of the Fees on its behalf, in which case, You shall pay such Fee in accordance with Condition 6.3 to the Lessor until notified otherwise by Aurora and provided that if the agreement between You and the Lessor terminates or expires, You shall continue to be liable to pay and shall pay the Fee to Aurora in full notwithstanding termination or expiry of your agreement with the Lessor.
6.5 Aurora shall have the right to charge You for any and all work carried out or costs incurred where Aurora is requested to carry out any maintenance or repair which in Aurora’s reasonable opinion is unnecessary or for any work which You require to be performed outside of 9am-5.30pm Monday-Friday.
7. General Conditions
7.1 Aurora may, by written notice, cancel any Contract for Equipment at any time prior to delivery and may cancel any Contract for Services at any time prior to commencement of provision of those Services. Aurora may cancel any Contract if the Contract becomes impossible or impracticable to perform in whole or in part for any reason whatsoever beyond Aurora’s reasonable control. You may cancel any Contract by giving written notice at least 30 days prior to the agreed delivery or commencement date or, if no such delivery date has been agreed, within 14 days from the date of the relevant Contract.
7.2 The Agreement shall, unless terminated earlier in accordance with these Conditions, continue for a minimum term of 84 months (the “Minimum Term”), following which the Agreement shall, in respect of Small Businesses continue until either party terminates by giving not less than 30 days’ written notice, and in all other cases automatically renew for successive periods of 12 months (each a “Renewal Term”) until either party gives 30 days’ written notice of its intention not to renew the term.
7.3 All Charges (quoted in the Contract or on standard rates) are exclusive of value added tax and You shall pay the Charges (including any Termination Fees) in full without any deduction or set off.
7.4 At any time during the term of the Agreement but not more than once in any 12 month period, Aurora may increase the Fees and any other Charges payable by you under the Agreement by up to 10% upon giving written notice to You and subject always to Your right to terminate as set out below. Aurora shall be entitled to vary the Charges where the variation rises due to changes imposed by third party manufacturers, third party suppliers or regulatory bodies, upon giving as much notice in writing as is reasonably practicable. You shall be entitled to terminate the Agreement by providing 30 days; notice in writing if the variation to the Charges (whether due to third party change or regulatory changes or whether by way of an annual increase) would have increased Your immediately previous quarterly total bill for that specific Network Service (if the increase(s) had applied for the whole of that quarter) by more than the greater of: (i) the Retail Price Index; or (ii) the Consumer Price Index annual inflation rate at the date Corporate notifies You of the applicable price increase; or (iii) 10%.
7.5 Time for payment of any monies due under the Agreement shall be of the essence but time for performance of any obligation by Aurora shall not be of the essence.
7.6 Neither party shall divulge any confidential information to any third party as required by law and except to such of its employees, contractors, suppliers and agents as may need to know the same for the purposes of the implementation and/or performance of the Agreement and in each case who agree to be bound by the provisions of this Condition 7.6.
7.7 Aurora reserves the right, without prejudice to any other right Aurora may have in respect of late payment, to charge You interest on any monies due under the Agreement (both before and after any judgement) on a daily basis from the date of invoice until payment in full is made at a rate of 4% above Lloyds TSB Bank Plc base rate. Any reasonable debt collection costs incurred by Aurora shall also be payable by you.
7.8 Without prejudice to any right of termination Aurora shall be entitled to suspend performance of Network Services during any period in which any of the circumstances specified in Condition 7.10 is in existence or in which:
7.8.1 there are any sums due to Corporate hereunder which have not been paid; or
7.8.2 Aurora is prevented from accessing the Site; or
7.8.3 Aurora is required to suspend any Services by any competent authority or Service Provider, and You shall remain liable for all Charges during any period of suspension of Services.
7.9 Aurora may terminate the Agreement, in whole or in respect of certain Services only, at any time upon twenty-
eight (28) days’ written notice to You.
7.10 Aurora may terminate the Agreement by written notice if any of the following events occur:
7.10.1 You commit any breach of the Conditions of the Agreement, including failure to pay amounts due, and, if remediable, fail to remedy such breach within twenty-eight (28) days after receiving written notice requiring remedy;
7.10.2 You become insolvent, make an arrangement with Your creditors, enter into administration or liquidation, have a receiver or manager appointed over any of your assets or undertaking;
7.10.3 An event of force majeure as referred to in Condition 7.14 continues for a period of more than 3 months;
7.10.4 You are suspected in Aurora’s reasonable opinion, of involvement with fraud or attempted fraud in connection with the use of the Network Services;
7.10.5 Your use of the Network Services results in a breach (by You or by Aurora) of the terms imposed by a Service Provider, or any Service Provider refuses to transmit telecommunications originating from You; or
7.10.6 You are in breach of any agreement for the rental of Equipment or any finance agreement in connection with the purchase of Equipment.
7.11 Subject to Condition 7.12, You may terminate the Agreement, in whole or in respect of certain Services only, at any time on 30 days’ written notice.
7.12 If the Agreement is terminated under Condition 7.10 or (in whole or in part under) Condition 7.11, You will (without prejudice to any claim for damages by Aurora for breach of the Agreement) pay to Aurora:
7.12.1 All sums which have fallen due to Aurora in respect of the period up to and including the date of termination;
7.12.2 All costs and expenses incurred by Aurora in collecting or attempting to collect from You The Equipment;
7.12.3 By way of liquidated damages:-
22.214.171.124 An amount equal to the amount of all Charges which would have been payable in respect of the period from the date of termination to the date of expiry of the Minimum Term or the current Renewal Term, as applicable, had the Agreement not been terminated; and
126.96.36.199 Where the Agreement includes (as indicated in the Contract) or as may subsequently be agreed in writing between You and Aurora, as an element of the Additional Charges a commitment to use Aurora for call routing and You cease call routing before the expiry of the Minimum Term (or the expiry of the Revised Term) a charge to be calculated as follows: Charge = A x 40% x B
A = the average monthly call spend by You during the previous six months of the Contract up to and including the last complete month use of call routing prior to the month within which the date of termination occurs/You ceasing to use call routing; and
B = the number of billing months remaining until expiry of the Minimum Term or expiry of the Revised Term (as applicable).
7.13 Except as expressly provided in the Agreement no warranty, condition, undertaking or term, expressed or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of any goods or services provided hereunder will be given by Aurora and except as expressly provided in the Agreement all such warranties, conditions, undertaking and terms are hereby excluded to the maximum extent permitted by law.
7.14 Aurora shall not be liable for any failure or delay in its performance under the Agreement caused by any circumstances beyond its reasonable control.
7.15.1 Each party agrees that the limitations of liability contained in Conditions 7.15.1 – 7.15.5 have been discussed, negotiated and agreed between the parties in the context of the other provisions of the Agreement and satisfy the requirement of reasonableness within the meaning of sub-section 2(2) and section 11 of the Unfair Contract Terms Act 1977.
7.15.2 Subject to 7.15.3 and 7.15.4, the liability of Aurora, under the Agreement or any other duty to Customer or for negligence in connection with the subject matter of the Agreement, in respect of any one event or series of connected events shall be limited:
188.8.131.52 in respect of any Equipment, to the price of the Equipment if purchased or to six (6) months’ rental charges of the Equipment if rented; and
184.108.40.206 in respect of any Network Services, to the Charges paid to Aurora in respect of Network Services in the six (6) month period prior to the event giving rise to the claim; and
220.127.116.11 in respect of any Maintenance Services, to the Charges paid to Aurora in respect of Maintenance Services in the six (6) month period prior to the event giving rise to the claim, provided that Aurora’s aggregate liability shall not exceed one million pounds (£1,000,000).
7.15.3 Aurora shall not be liable to You for:
18.104.22.168 Anticipated savings or loss of profits, business, revenue, data, goodwill; or
22.214.171.124 Indirect or consequential loss or damage.
7.15.4 Neither party excludes or limits liability to the other party for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
7.15.5 Aurora shall not be liable to You in respect of any third party interference with the Equipment or Services (including but not limited to “hackers”) howsoever arising.
7.16 You undertake to indemnify and keep indemnified Aurora at all times against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by Aurora directly or indirectly in respect of:
7.16.1 any breach by You of any of the provisions of the Agreement or of any law, code or regulation relating to the Agreement or its subject matter; and
7.16.2 any infringement of any IP Rights of a third party resulting from any act or omission by You or any of your employees or agents.
7.17 The Agreement represents the entire Agreement and understanding of the parties and supersedes all prior agreements, negotiations, representations, proposals and understandings, whether written or oral.
7.18 Any variation of these Conditions must be in writing and signed on behalf of both parties.
7.19 No waiver of any breach of the other party’s obligations hereunder shall represent a waiver of the waiving party’s rights hereunder or of any subsequent breach.
7.20 No provision of the Agreement is intended to or will operate to confer any benefit on a person who is not a party to the Agreement, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
7.21 You may not assign, sub-contract, transfer, or otherwise deal with, in whole or in part, your rights under the Agreement without the prior written consent of Aurora. Aurora shall have the right without notice to assign, sub-contract, transfer or otherwise deal with all or any of its rights and obligations under the Agreement.
7.22 Any notices shall be in writing and either delivered personally or sent by first class recorded delivery or sent by email to the party to whom the notice is addressed at its address or email address set out in the Contract or such other address in the UK or email address as a party may specify by notice in writing to the other. In the absence of evidence of earlier receipt notice shall be deemed to have been duly given:
7.22.1 if delivered personally, when left at the address;
7.22.2 if sent by first class recorded delivery, at the time recorded by the delivery agent; or
7.22.3 if sent by email, at the time received by the addressee of the notice (of which a delivery receipt shall be conclusive evidence).
7.23 Nothing in the Agreement shall create a partnership or joint venture between the parties and nothing in the Agreement shall appoint one party as the distributor, dealer or agent of the other.
7.24 In the event that any term of the Agreement is found to be unenforceable such term shall apply having been amended to the minimum extent possible, and preserving to the extent possible the commercial intention of the parties, in order to make such term enforceable.
7.25 Aurora may allocate telephone numbers, IP addresses and other codes to You as it sees fit in its absolute discretion and nothing in the Agreement shall be construed as to transfer from to You ownership, or any right to sell or dispose of, any telephone numbers, IP addresses or other codes. All of Your rights to use such telephone numbers, IP addresses or other codes will cease upon termination of the Agreement or the relevant Network Service.
7.26 The Agreement shall be governed by English law and subject to the non-exclusive jurisdiction of the English courts.