1. Introduction
These terms and conditions (“Conditions”) govern the basis that Aurora Managed Services Limited (company registration number (06228885) whose registered office address is 1-2 Castle Lane, London, England, SW1E 6DR (“Aurora”) will provide to you, the customer as specified on the attached Order (“Customer”, “you”, “your”) the Services and/or Equipment. Reference to a “Condition” is to a term set out in these Conditions. These Conditions shall: – (i) apply to and be incorporated in the Agreement; and (ii) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order or specification, or implied by law, trade, custom, practice or course of dealing.
2. Definitions
2.1 The following definitions have the following meanings:-
“Applicable Customer” means a Customer that is a Relevant Customer (as defined in the General Conditions) and which has, in the relevant context, applicable rights under the General Conditions (but excluding those Customers in relation to specific General Conditions that have been opted out under the General Conditions and those who do not have the applicable rights conferred by the relevant General Conditions as they have a Bundle with Aurora).
“Access Fee” the monthly or other periodic fee payable by Customer for use of the Network Services.
“Account” as defined in Condition 7.4.
“Add-On Service” means an optional add-on or bolt-on service that the Customer chooses to take which does not form part of the core services under the Agreement and which has no Minimum Term or has a Minimum Term or notice period of 30 days or less.
“Affiliate” any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity.
“Agreement” these Conditions together with the Order Form and, if applicable, the Contract Information Sheet and/or Contract Summary (any reference to “contract” or “Contract” in the Order Form and, if applicable, the Contract Information Sheet and/or Contract Summary shall be deemed to be the “Agreement”).
“Airtime” wireless airtime and network capacity procured from the Network Operator.
“Ancillary Service” means an extra service (excluding an Add-On Service) which is linked to the core services provided under this Agreement, which the Customer uses, registers or signs up for and, where relevant, is described as an ancillary service in its terms and conditions.
“Artificially Inflated Traffic” a flow or volume of traffic via any Service, which Aurora believes is: (i) disproportionate to the flow or volume of traffic which Aurora expects from good faith commercial practice and usage of the Service; (ii) disproportionate to Customer’s previous traffic profiles (in any given month) with Aurora; (iii) uses automated means to make calls (save where this is expressly approved by Aurora in writing); or (iv) may result in the Customer exceeding the credit limit (if applicable) which Aurora places on Customer’s Aurora account from time to time.
“Average Speeds” means the average download speeds through a wired connection. Aurora base average speeds on sync speed (the speed of your line from the street cabinet or telephone exchange to your router). Speeds may vary significantly by location and are dependent on all Equipment meeting minimum specifications, being fully functional and working at full speed. The range of wireless Equipment can vary according to the layout of your premises. Other factors can also impact internet speeds, such as distance of your premises from the network exchange, the number of people using the internet, the level of use of the internet and other environmental and technological influences.
“Bundle” subject to any applicable General Conditions that have been opted out of by you, a contract with Aurora, or two or more closely related or linked contracts with Aurora, at least one of which relates to the provision of an Internet Access Service or a Number-based Interpersonal Communications Service. The other services/contracts which may comprise part of a “Bundle” include content services or Terminal Equipment.
“Business Systems” the information technology and communication systems, including networks, servers, hardware, software and interfaces owned by, or licensed to, the Customer, its Affiliates or any of its or their agents or contractors.
“Call Charges” any charges as detailed under your tariff, charge for Airtime or as specified in Condition 18.
“Charges” the charges to be paid by you to Aurora for purchase and/or installation of Purchased Equipment, Leased Equipment, Maintenance Services, Wireless Services and/or Network Services (as relevant to and detailed on your Order), but excluding any amounts detailed on your Order which are payable to a Lessor (as defined in Condition 5.1). The charges may comprise a fixed monthly/quarterly element together with non-recurring charges including but not limited to Line Rental Charges, Access Fees and those based on usage (“Additional Charges”).
“Codes of Practice” all guidelines governing use or provision of mobile telecommunications and data services, issued by any generally recognised bodies (such as PhonepayPlus) or that are adopted by Aurora from time to time, and all instructions, regulations or guidance issued by the Regulatory Authorities, whether or not mandatory.
“Commencement Date” the commencement date as specified in the Order.
“Confidential Information” all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors (“Representatives”) to the other party and that party’s Representatives in connection with this Agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure.
“Connection” an Aurora SIM Card that has been configured to attach to the Network, with a price plan, tariff or SOC associated with it so that End Users can use and be charged for Services supplied under an Order Form.
“Contract Information Sheet” the contract information to be provided to a Small Business Customer, unless they have opted out of provision of the same, pursuant to the General Conditions.
“Contract Summary” the contract summary to be provided to a Small Business Customer, unless they have opted out of provision of the same, pursuant to the General Conditions and which contains key information about the Average Speed of the service, price, and length of your Agreement.
“Control” the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and “Controls”, “Controlled” and the expression “Change of Control” shall be construed accordingly.
“Device” the wireless device, or Equipment incorporating a SIM Card.
“Disconnection Notice” a notice from the Customer to Aurora to disconnect all or the relevant part of the Wireless Services which should be in the form made available to the Customer by Aurora.
“Documentation” any specifications, technical manuals, user instructions and other literature relating to Equipment and supplied to you.
“EECC Directive” means Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code.
“Emergency Planning Measures” the measures that may be taken as a result of Aurora’s obligations under (i) the General Conditions under section 45 of the Communications Act 2003 and (ii) the Civil Contingencies Act 2004; or any similar or replacement law.
“End User” a person using Equipment or a Service, who is the Customer or an employee or contractor of the Customer, or who otherwise makes use of the Equipment or Service.
“Equipment” the Purchased Equipment and the Leased Equipment (as applicable); and any tangible material supplied by Aurora to the Customer, or connected to the Network on the Customer’s behalf, such as a mobile phone, a connecting cable, a power supply, a PC data card or a Device.
“Emergency Organisation” means in respect of any locality: (a) the relevant public police, fire, ambulance and coastguard services for that locality; and (b) any other organisation, as directed from time to time by OFCOM as providing a vital service relating to the safety of life in emergencies.
“Extension Period” shall have the meaning set out in Condition 17.2.
“First Line Support” the Customer’s IT Helpdesk which shall be the Customer’s employees’ first point of contact in the event that they have a query or problem with a Device or Equipment.
“General Conditions” means the general conditions notified by OFCOM under s48(1) of The Communications Act 2003.
“Group” in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
“GPRS Bearer” the General Packet Radio Service (“GPRS”) provided by the Network Operator which forms part of the Airtime.
“GSM Gateway” any equipment containing a SIM Card which enables the routing of calls from fixed apparatus to mobile equipment by establishing a mobile-to-mobile call.
“IP Right” means any patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Installation Charge” as detailed in the Order.
“Initial Term” the initial Minimum Term.
“Internet” means the global data network comprising interconnected networks using the TCP/IP protocol suite.
“Internet Access Service” as defined by OFCOM, pursuant to the Communications Act 2003 and the United Kingdom’s implementation of the EECC Directive, in the General Conditions.
“Leased Equipment” means telecommunications hardware and Equipment to be leased from a third party by you as set out in the Order.
“Line Rental Charges” means the non-usage dependent part of the Charges.
“Losses” means all losses, liabilities, damages, costs, charges and reasonable expenses.
“Maintenance Services” means the maintenance of the Equipment as set out in the Order (if any).
“Minimum Term” means the term as detailed in the Order Form which is also referred to in the Contract Information Sheet and Contract Summary as the “Commitment Period” or “Contract duration” (if applicable to the Customer).
“Mobile Equipment” means any wireless devices, handsets and related items or other equipment (including any Terminal Equipment) provided by Aurora under this Agreement and includes any Software (but not Third Party Software) and Documentation supplied under this Agreement for use in connection with the Services.
“Mobile Extension” means the service which uses certain wireless extension technology in conjunction with a private circuit or virtual private circuit and that enables certain Devices to operate as part of the Customer’s wireless private or virtual private voice network.
“Mobile Web Service” means the service which enables certain Devices to access the Internet using GPRS.
“Network” the telecommunication systems Aurora uses to provide the Services including any third-party systems.
“Network Carrier” a telecommunications carrier’s wireless telecommunications networks in a specified country (and includes any telecommunications networks owned or operated by any other wireless telecommunications carriers in other regions or countries with whom such wireless telecommunications carrier has a roaming agreement).
“Network Operator” means the network operator who operates the Network Services or Networks to which the SIM Cards are connected and from whom Airtime is procured by Aurora or its supplier for the benefit of the Customer.
“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 Order or as notified by Aurora in writing from time to time, to be provided upon the terms of these Conditions.
“Numbers” means the telephone numbers allocated to Aurora by the Network Operator and in turn allocated by Aurora to SIM Cards and used by the Customer to access the Wireless Services.
“Number-based Interpersonal Communications Service” as defined by OFCOM, pursuant to the Communications Act 2003 and the United Kingdom’s implementation of the EECC Directive, in the General Conditions.
“OFCOM” the UK communications industry regulator appointed and empowered under the provisions of the Communications Act 2003, or any appointment that replaces it.
“Order” means an order placed by you under this Agreement using an Order Form for the supply by Aurora of the Services and/or Equipment.
“Order Form” the document setting out the agreed commercial terms relating to Aurora’s provision of Equipment and/or Services which includes these Conditions and those of any Network Operator or Overseas Network.
“Overseas Networks” telecommunication systems outside the UK used (but not controlled) by Aurora in providing the Services for the Mobile Equipment.
“Partner” a person authorised by Aurora who may have sold Equipment or Services to the Customer.
“Port” the transfer of a mobile number that is connected to the Aurora Network under this Agreement to a different network provided by another supplier.
“Purchased Equipment” means telecommunications hardware or Mobile Equipment to be purchased from Aurora by you as set out in the Order.
“Regulatory Authorities” OFCOM, the Office of Fair Trading, the Competition Commission, the Information Commissioner, the Advertising Standards Authority, or any similar or replacement authority established from time to time.
“Relief Events” the following events: a. any failure by the Customer to comply with its obligations under this Agreement;
b. any error or malfunction in the Business Systems or any other software, hardware or systems for which Aurora is not responsible or any failure by the Customer, its agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which Aurora is not responsible;
c. any failure by the Customer or its agents or contractors (including any existing service provider) to provide any information, co-operation or instructions to Aurora which is reasonably required by Aurora for the proper performance of its obligations under this Agreement; or
d. any of the causes or events set out in Condition 13.6.2 or 4.11.
“Services” the Maintenance Services and/or the Network Services and/or Wireless Services, as the context requires, as detailed on the Order.
“Service Provider” as defined in Condition 7.2.
“SIM Card” the subscriber identity module supplied by the Network Operator (and which shall at all times remain the property of the Network Operator), which is allocated to the Customer by Aurora, and which contains the Number.
“Site” Customer’s premises as set out in the Order.
“Small Business Customer” a Customer of Aurora’s for whom not more than 10 individuals work (whether as employees or volunteers or otherwise), or as otherwise determined by OFCOM from time to time.
“SMS Land to Mobile Text Messaging Service” the usage based short message service, for text messages sent to SIM Cards via a software application in conjunction with a private or virtual private circuit linking the Customer’s wireless private or virtual private data network with the Wireless Services.
“SMS Text Messaging Service” the short message service, which enables text messages to be sent to, and received from, SIM Cards via Devices connected to the Wireless Services.
“SOC” means a system-on-a-chip which provides a processing system.
“Software” any software (including but not limited to any Third Party Software) included with the Equipment or provided to you by Aurora in connection with the Services and/or Equipment.
“Software License” the terms and conditions that prescribe how the Customer shall use Software and set out the rights of the Software owner/licensor and the Software user in relation to such Software.
“Software Supplier” Gamma Telecommunication or any other manufacturer or supplier of Third Party Software to the Customer.
“Standard List Price(s)” Aurora’s standard unsubsidised Charges for business Services and Equipment as advised to the Customer by Aurora and/or as made available on request by Aurora (as amended by Aurora from time to time), which Aurora may increase without notice.
“Supplier Excess Roaming Charges” the daily charge that is imposed by Aurora’s Service Provider in the event that a connection breaches 60 days of EU roaming in a rolling 120 days (such daily charge being £4 per day (as varied from time to time by the Service Provider) for each day that the connection roams in the EU within the calendar month, until the number of days of EU roaming reduces to under 60 days in a rolling 120 days). These charges will be as a result of increases to the wholesale rates notified to you or Aurora by other providers.
“Term” means the Minimum Term plus, any applicable, Renewal Term.
“Terminal Equipment” means (a) equipment directly or indirectly connected to the interface of a Public Electronic Communications Network to send, process or receive information, with the direct or indirect connection being made by a wire or optical fibre or electromagnetically; or (b) equipment which is capable of being used for the transmission or reception, or both, of radio communication signals by means of satellites or other space-based systems.
“Termination Fees” shall mean the sums detailed under Condition 11.4 or 12.1.
“Third Party” means a person, company or entity other than Aurora or the Customer.
“Third Party Software” Software or operating system supplied by a Software Supplier to the Customer.
“Value Added Wireless Services” the Wireless Services under which Aurora supplies the Customer with Airtime enabling the Customer to make and receive mobile voice calls and SMS Text Messaging Services on the Network.
“Warranty Period” the period of the manufacturer’s warranty in respect of any Equipment supplied by Aurora to the Customer under this Agreement.
“Wireless Services” means the provision by Aurora to the Customer of Airtime, GPRS Bearer, Mobile Extension, Mobile Web Service, SMS Text Messaging Service, SMS Land to Mobile Text Messaging Service and/or any other wireless services, which Aurora may from time to time provide.
3. Orders and Equipment
3.1 Customer shall order Services and Equipment by submitting an Order Form by email, or as otherwise notified by Aurora to the Customer from time to time. Customer shall accurately complete all fields set out in the Order Form and Aurora shall, if required by the General Conditions, provide the Contract Summary and Contract Information Sheet to Small Business Customers.
3.2 Orders are binding on both parties from the date of acceptance by Aurora. If acceptance is not express, it shall be deemed to have occurred on dispatch of Equipment or activation of Service by Aurora.
4. Conditions Relating to Purchase of Equipment
4.1 The price of the Purchased Equipment shall be as set out in the Order. Aurora may require that a deposit is paid prior to delivery. Aurora shall, if selected in the Order, install the Equipment and you shall pay Aurora the balance of the Charges for the Purchased Equipment together with any Installation Charge on or before such installation of the Purchased Equipment.
4.2 Aurora shall use reasonable endeavours to supply the Purchased Equipment on or before the agreed delivery date but shall not be liable for any Losses occurring as a direct or indirect result of any delay in delivery of the Purchased Equipment.
4.3 You shall procure that the Site is in a proper condition for such installation or delivery 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.
4.4 Risk in the Purchased Equipment shall pass to you on delivery and accordingly the Customer shall be responsible for insuring the Purchased Equipment against all normal risks with effect from the time risk passes. Title in the Purchased Equipment shall only pass to you upon payment in full of the price therefore, the Charges and of all other sums whatsoever due from you (or any member of your Group) to Aurora (or any member of its Group) under this Agreement and on any other. Until title passes, you shall: – (i) maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price from the date of delivery; (ii) have possession of the Purchased Equipment as Aurora’s bailee; and (iii) procure that the Purchased Equipment can be readily identified as Aurora’s property.
4.5 Where Mobile Equipment is provided free of charge and is paid for over the duration of the Minimum Term, title shall pass at the end of the Initial Term and the Mobile Equipment shall be subject to a separate agreement, unless both agreements are provided by Us, then that agreement shall, subject to the General Conditions, form a Bundle.
4.6 Aurora reserves the right to repossess any Purchased Equipment for which payment is overdue. For this purpose you hereby grant Aurora, and its Representatives, 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 this Agreement for any reason and is without prejudice to any of Aurora’s accrued rights hereunder or otherwise.
4.7 During a period of seven days following installation Aurora may, subject to Conditions 4.9 and 4.10, at its option replace or refund the price of, any defective Purchased Equipment, after which you will be deemed to have accepted the Purchased Equipment.
4.8 Customer shall notify Aurora in writing within 48 hours of confirmation of Aurora’s order acceptance, if Customer does not receive delivery of the Purchased Equipment or SIM Card.
4.9 Aurora does not manufacture Equipment or Software and, save for Condition 4.10, excludes to the fullest extent permissible at law, all warranties, terms or conditions in relation to Equipment or Software, whether implied by law or otherwise. 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 or Software. However, on expiry of this Agreement, any commitment Aurora has to liaise with the manufacturer in respect of any warranty shall cease.
4.10 Where Equipment or Software supplied to the Customer by Aurora becomes faulty for reasons other than through Customer’s acts, omissions or misuse within the manufacturer’s Warranty Period, Customer shall return or make available such Equipment and Software (as applicable) to Aurora and Aurora may liaise with the manufacturer (or require the Customer to do so) so that the manufacturer may, in accordance with the manufacturer’s warranty, repair or replace the Equipment or Software in accordance with the manufacturer’s repair, replacement or recovery policy. Any out of warranty repairs shall be at Aurora’s Standard List Price.
4.11 Aurora shall not be liable in respect of:
4.11.1 defects in the Purchased Equipment arising as a result of any modification or repair carried out by you;
4.11.2 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
4.11.3 any defect caused by your or any third party’s negligence or default.
5. CONDITIONS RELATING TO LEASING OF EQUIPMENT
5.1 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 any such party. The price for the lease of the Leased Equipment shall be set out in the Order but shall be payable by you to the Lessor.
5.2 Where expressly agreed in writing Aurora shall install the Equipment and you shall pay to Aurora any Installation Charge set out in the Order on or before such installation of the Leased Equipment.
5.3 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.
6. GENERAL EQUIPMENT CONDITIONS
6.1 Customer shall not remove or obscure any logo or writing on Equipment that Aurora has supplied to Customer and which Customer does not own. Customer shall replace all batteries and other consumable parts of the Equipment.
6.2 Customer shall not, and shall ensure that End Users do not tamper with or attempt to repair or service the Equipment or allow any party other than Aurora to do so. Any attempt to do this may invalidate the manufacturer’s warranty.
6.3 Customer shall keep all Equipment that Aurora has supplied to Customer and which Customer does not own, in Customer’s possession (which shall be deemed to include the possession of Customer’s End Users), and shall not sell it, place a charge or encumbrance on it or otherwise dispose of it.
6.4 Aurora’s supply of Equipment and accessories shall be subject to availability.
6.5 If Aurora provides Customer or an End User with security codes as part of the Services, Customer agrees, and will ensure, that its End Users shall keep the security codes confidential. Customer must inform Aurora immediately if it suspects that security codes have been disclosed to a third party so we can issue new security codes.
6.6 Aurora is not obliged to agree to any upgrades to the Equipment it supplies to the Customer (either directly or via a Partner) during or after the Minimum Term but if it does, the Minimum Term shall, subject to the General Conditions (if applicable), extend as detailed under Condition 9.2 or 17.2.
7. CONDITIONS RELATING TO SERVICES
7.1 All Services as specified on the Order shall be supplied in accordance with this Agreement. The Services are provided at the Customer’s request and the Customer accepts that it is responsible for verifying that the Services are suitable for its own needs.
7.2 All Network Services shall be supplied utilising the telephone lines, cabling, equipment and machinery of such third party telecommunication service provider or Network Operator (“Service Provider”) as Aurora may from time to time select.
7.3 You undertake that you shall not use the Network Services:
7.3.1 for the transmission of any material which is defamatory, offensive or abusive or of an obscene or menacing character;
7.3.2 in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to IP Rights or confidentiality);
7.3.3 in any way which is unlawful or fraudulent, or has any unlawful or fraudulent effect; or
7.3.4 in any manner which shall contravene the requirements from time to time of any Service Provider.
7.4 Additional Charges for Services will be calculated by sole reference to the data and records maintained by Aurora which shall be final and binding in determining the amount payable by you, except only in the case of manifest error, and will be shown on a monthly statement or invoice 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 or invoice.
7.5 Aurora may add to any Account any additional installation charge levied by a Service Provider.
7.6 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.
7.7 Any unused free call allowance will not be carried forward to any subsequent or other Account unless otherwise agreed in writing, and you will not be compensated in respect thereof.
7.8 Aurora makes no representation or warranty that the Network Services will be available at any particular time or continuously.
8. Conditions Relating to Maintenance Services
8.1 Aurora’s obligation to perform Maintenance Services is subject to the conditions that you:
8.1.1 make available free of charge such computer and communications facilities, office facilities and services and suitable office space as reasonably requested;
8.1.2 procure that your employees or any contractors or other third parties at the Site co-operate fully with Aurora and its employees or agents;
8.1.3 immediately notify Aurora of any fault affecting Equipment and promptly furnish Aurora with such information and documents as it requests;
8.1.4 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;
8.1.5 procure that adequate electrical power is supplied to the Equipment;
8.1.6 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;
8.1.7 do not move, or make any addition, repair, modification or adjustment to, the Equipment without the prior written consent of Aurora.
8.2 You shall pay Aurora the Charges for the relevant period, in advance or arrears, as detailed on the Order.
8.3 Aurora shall have the right to charge you at Aurora’s Standard List Prices 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.
8.4 Any work which you require to be performed outside of 9am-5.30pm Monday-Friday will incur an additional charge of an extra 50% of Aurora’s Standard List Prices.
9. TERM
9.1 Aurora may, by written notice, cancel any Order for Equipment at any time prior to delivery and may cancel any Order for Services at any time prior to commencement of provision of those Services. Aurora may cancel any Order if the Order becomes impossible or impracticable to perform in whole or in part for any reason whatsoever beyond Aurora’s reasonable control. You may cancel any Order 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 Order.
9.2 This Agreement commences on the Commencement Date and, subject to any provisions for earlier termination contained in this Agreement, shall continue for the Minimum Term and, subject to the rights of relevant Applicable Customers under Condition 9.2.1 or the General Conditions, thereafter it shall automatically continue for successive periods of 12 months (each a “Renewal Term”) until either party gives 30 days’ written notice of its intention not to renew any Renewal Term.
9.2.1 If you are (or have become) a Small Business Customer with applicable rights under the relevant General Conditions, Aurora is required to obtain your express consent to the commencement of a Renewal Term, in which case this will be made clear to you at the relevant time (but subject always to Conditions 9.4, 26 and 27).
9.3 Where a Minimum Term or Renewal Term expires and no Renewal Term (or further Renewal Term, as the case may be) commences pursuant to Condition 9.2.1, but you continue to use the Services after such expiry (for any reason whatsoever), then you will continue to be bound by the terms of this Agreement in respect of your continued use of the Services (including the obligation to pay all Charges) until this Agreement is terminated in accordance with its terms.
9.4 If at the Commencement Date (or the commencement of a Renewal Term, as the case may be) you are not a Small Business Customer but during such period become one, or vice versa, then it is your responsibility to notify Aurora in accordance with Condition 29.2 (and to provide such evidence of your change of status as Aurora may reasonably request). If you do not notify Aurora within 30 days of the end of the Minimum Term (or Renewal Term, as the case may be) that:
9.4.1 You have become a Small Business Customer, then Aurora shall be entitled to continue to treat you as not being a Small Business Customer for the purposes of Condition 9.2.1 and these Conditions; or
9.4.2 You were a Small Business Customer but have ceased to be one, and you seek to enjoy rights that you would not otherwise have had if you had notified Aurora of your change of status, then you agree to compensate Aurora in respect of any Losses Aurora suffer as a result of your failure to notify Aurora of your change of status.
9.5 For the purposes of Condition 9.2.1, Aurora will notify the Small Business Customer between 20 and 30 days before the end of the Minimum Term or Renewal Term to confirm the proposed renewal of the Agreement.
10. Charges
10.1 Aurora shall, following the end of each calendar month on the date agreed from time to time, submit to the Customer one or more invoice(s), or an Account, which shall itemise all Charges.
10.2 All Charges shall be based upon call and billing data recorded by Aurora on Aurora’s system. The Customer acknowledges that roaming calls may take longer to be billed than other types of calls.
10.3 All Charges (quoted in the Order or on Standard List Prices) are exclusive of value added tax and you shall pay the Charges (including any Termination Fees calculated in accordance with Condition 11.4 or 12.1 (as applicable)) in full without any deduction or set off. The Charges do not include any services or otherwise, which become necessary as a result of:
10.3.1 damage by vandalism, fire, water or adverse weather conditions;
10.3.2 movement or relocation of the Equipment not performed by or on behalf of Aurora;
10.3.3 furnishing of the Equipment with accessories or attachments, painting or finishing the Equipment or removing accessories or attachments;
10.3.4 any breach of your obligations in this Agreement;
10.3.5 changes, alterations, additions, modifications or variations to the Site;
10.3.6 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 List Prices.
10.4 Subject to the Applicable Customer’s rights under Condition 26 and 27: –
10.4.1 Aurora shall be entitled to vary the Charges where the variation arises due to changes imposed by third party manufacturers, third party suppliers (including Software Suppliers) or regulatory bodies, upon giving as much notice in writing as is reasonably practicable.
10.4.2 You shall be entitled to terminate the Agreement by providing 28 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 Charge total billed for that specific Service (if the increase(s) had applied for the whole of that billing period) by more than the Retail Price Index annual inflation rate at the date Aurora notifies you of the applicable price increase plus 3.9%.
10.5 Time for payment of any monies due under this Agreement shall be of the essence but time for performance of any obligation by Aurora shall not be of the essence.
10.6 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 this 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 on an indemnity basis.
10.7 The Customer will pay all Charges and Additional Charges (if applicable) by direct debit unless otherwise agreed. If the Customer does not set-up the direct debit, then a charge of £15.00 may be applied to the Customer’s account per invoice, per month to cover administration costs (always provided that some educational establishments may be exempt from this charge). If the Customer stops paying by direct debit and chooses to pay by some other method, Aurora may increase the Charges annually to take into account its increased costs of performing the Services.
11. Suspension & Termination
11.1 Without prejudice to any right of termination Aurora shall be entitled to suspend performance of any Services or remove Software access during any period in which any of the circumstances specified in Condition 11.3 is in existence or in which:11.1.1 there are any sums due to Aurora hereunder or on any other account which have not been paid; or
11.1.2 Aurora is prevented from accessing the Site; or
11.1.3 Aurora is required to suspend any Services by any Regulatory Authority, Software Supplier or Service Provider, you shall remain liable for all Charges during any period of suspension of Services.
11.2 Aurora may terminate this Agreement, in whole or in respect of certain Services only, at any time upon twenty-eight (28) days’ written notice to you.
11.3 Aurora may terminate this Agreement by written notice if any of the following events occur:
11.3.1 You breach any of the Conditions of this Agreement (other than a failure to pay money due under this Agreement), and, if remediable, fail to remedy such breach within twenty-eight (28) days after receiving written notice requiring remedy;
11.3.2 You fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than seven (7) days after being notified in writing to make such payment;
11.3.3 unless precluded by law, you take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), have a receiver or manager appointed over any of its assets or cease to carry on business;
11.3.4 an event of force majeure as referred to in Condition 12.2 continues for a period of more than 3 months;
11.3.5 You are suspected in Aurora’s reasonable opinion, of involvement with fraud or attempted fraud in connection with the use of the Services;
11.3.6 Your use of the Services, Equipment or Software results in a breach (by you or by Aurora) of the terms imposed by a Software Supplier, Service Provider or any third party supplier (including any repeated instances of Aurora having to charge the Supplier Excess Roaming Charge and the Service Provider terminating that connection), or any such person refuses to transmit telecommunications originating from you; or
11.3.7 You are in breach of any agreement for the rental of Equipment or any finance agreement in connection with the purchase of Equipment.
11.4 Subject always to the rights of an Applicable Customer (including but limited to those detailed under Conditions 9.2.1, 26 and 27), you may terminate this Agreement, in whole or in respect of certain Services only, at any time on 28 days’ written notice. If you terminate this Agreement or part thereof before the end of the Term, Aurora shall be entitled to invoice you and you shall pay (without prejudice to any claim for damages by Aurora for breach of this Agreement) Termination Fees from the effective date of termination for the remainder of the Term calculated as follows:
11.4.1 all arrears of Charges and other sums due; plus
11.4.2 all sums which have fallen due to Aurora up to and including the date of termination or the date the Customer first ceased to use the Equipment or Services, whichever is the later (including but not limited to Call Charges); plus
11.4.3 a sum equal to all costs and expenses incurred or committed to third parties by Aurora: –
11.4.3.1 in collecting or attempting to collect from the Customer the Equipment; and
11.4.3.2 in respect of the provision of the Services, which are non-¬refundable or non-cancellable; plus
11.4.4 liquidated damages calculated as a sum equal to the remaining months Charges for Services (or part thereof) which would have been payable to Aurora for the remaining Term calculated by reference to the average Charges for Services (including any Additional Charges) for which the Customer has been invoiced during the eighteen months (or part thereof) prior to the date of termination (but excluding any estimated readings) multiplied by the number of months remaining until the end of the Term . The Customer acknowledges and agrees that this sum represents a genuine pre-estimate of Aurora’s Losses arising from such termination of the Agreement; plus
11.4.5 a collection charge in the amount of £350.00 plus VAT for each item of Equipment collected by Aurora from the Site.
12. Consequences of Termination
12.1 If this Agreement is terminated under Condition 11.3 (in whole or in part thereunder), you will immediately (without prejudice to any claim for damages by Aurora for breach of this Agreement) pay to Aurora:
12.1.1 all arrears of Charges and other sums due; plus
12.1.2 all sums which have fallen due to Aurora up to and including the date of termination or the date the Customer first ceased to use the Equipment or Services, whichever is the later (including but not limited to Call Charges); plus
12.1.3 a sum equal to all costs and expenses incurred or committed to third parties by Aurora: –
12.1.3.1 in collecting or attempting to collect from the Customer the Equipment; and
12.1.3.2 in respect of the provision of the Services, which are non-¬refundable or non-cancellable; plus
12.1.4 liquidated damages calculated as a sum equal to the remaining months Charges for Services (or part thereof) which would have been payable to Aurora for the remaining Term calculated by reference to the average Charges for Services (including any Additional Charges) for which the Customer has been invoiced during the eighteen months (or part thereof) prior to the date of termination (but excluding any estimated readings) multiplied by the number of months remaining until the end of the Term less a 20% discount. The Customer acknowledges and agrees that this sum represents a genuine pre-estimate of Aurora’s Losses arising from such termination of the Agreement; plus
12.1.5 a collection charge in the amount of £350.00 plus VAT for each item of Equipment collected by Aurora from the Site.
12.2 Aurora shall not be liable for any failure or delay in its performance under this Agreement caused by any circumstances beyond its reasonable control including without limitation: – (i) acts of God, flood, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination or sonic boom; (v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (vi) collapse of buildings, fire, explosion or accident; and (vii) any labour or trade dispute, strikes, industrial action or lockouts; (viii) non-performance by suppliers or subcontractors; and (viii) interruption or failure of utility service.
12.3 On termination of this Agreement as a whole, or partial termination (for example of a specific Order), Customer shall immediately cease use of the Software (except Software which is embedded in Equipment to which Customer has title).
12.4 Customer shall (if requested by Aurora), delete or destroy all copies of the user Documentation which Aurora has supplied or which Customer has copied, in whatever form and return, delete or destroy all copies of the Software (except Software which is embedded in Equipment to which Customer has title) within 7 calendar days of termination of this Agreement or of termination of the relevant Service, and provide Aurora with written confirmation that all such copies have been returned, deleted or destroyed.
12.5 Where this Agreement is terminated as a whole, Aurora’s entire relationship with Customer shall terminate in respect of this Agreement and Aurora shall no longer supply, and Customer shall immediately cease to use any Services that were supplied pursuant to this Agreement.
12.6 On termination of the Agreement or any relevant part thererof, the Customer’s Services supplied pursuant to the relevant Order Form shall cease immediately and the Customer will immediately pay to Aurora all sums due or payable under the relevant Order Form in relation to the terminated or expired Services, including any Termination Fees calculated in accordance with Condition 11.4 or 12.1 (as applicable).
12.7 Where this Agreement or any Service has been terminated in accordance with Condition 11.3, Customer shall pay Termination Fees to Aurora calculated in accordance with Condition 12.1 unless such Termination Fees are not payable under the General Conditions. For the avoidance of doubt, where this Agreement is terminated as a whole, each Connection placed under this Agreement shall also terminate.
12.8 If Customer disconnects a material part of its Connections, or systematically disconnects Connections on a recurring basis during the term of this Agreement, Aurora shall have the right to terminate the relevant Service and charge Customer Termination Fees calculated in accordance with the formula set out in Condition 12.1.
12.8.1 Disconnections, ports or migrations from the Vodafone network will incur a disconnection charge of £35 if signed on a term of less than 24 months. This charge is payable upon issue of the PAC code to transfer networks and will be charged regardless of whether the PAC is utilised or not as the network charges a fee to issue the PAC.
12.8.2 Where this Agreement is terminated before the end of the Term by the Customer, Aurora may charge a reasonable administration fee of 25 pence in respect of each number that is ported or migrated in addition to any Termination Fees payable in accordance with Conditions 11.4 or 12.1 (as applicable).
13. Limitation of Liability
13.1 Each party agrees that the limitations of liability contained in this Condition 13 have been discussed, negotiated and agreed between the parties in the context of the other provisions of this 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.
13.2 Except as expressly provided in this 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 this Agreement all such warranties, conditions, undertakings and terms are hereby excluded to the maximum extent permitted by law.
13.3 Subject to Conditions 13.5, the liability of Aurora, under this Agreement or any other duty to Customer (including for negligence) in connection with the subject matter of this Agreement, in respect of any one event or series of connected events shall be limited:
13.3.1 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
13.3.2 in respect of any Services (unless falling under Condition 13.3.3), to the Charges paid to Aurora in respect of Services in the six (6) month period prior to the event giving rise to the claim; and
13.3.3 in respect of any Maintenance Services and/or Software, to the Charges paid to Aurora in respect of Maintenance Services and/or Software in the six (6) month period prior to the event giving rise to the claim, always provided that, in any event, Aurora’s aggregate liability shall not exceed one million pounds (£1,000,000).
13.4 Aurora shall not be liable to you for:
13.4.1 anticipated savings or loss of profits, business, revenue, data, goodwill; or
13.4.2 indirect or consequential Losses.
13.5 Neither party excludes or limits liability to the other party for death or personal injury caused by negligence, for fraud or for fraudulent misrepresentation, or for 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 or any other matter which cannot be excluded by or limited in law.
13.6 Aurora shall not be liable to you in respect of: –
13.6.1 any third party interference with the Equipment or Services (including but not limited to “hackers”) howsoever arising; or
13.6.2 Losses arising from or relating to any Relief Event.
13.7 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:
13.7.1 any breach by you of any of the provisions of this Agreement or of any law, code or regulation relating to this Agreement or its subject matter; and
13.7.2 any infringement of any IP Rights of a third party resulting from any act or omission by you or any of your Representatives;
13.7.3 Aurora’s performance of its obligations under the Agreement being prevented or delayed by any act or omission of the Customer or the Customer’s Representatives; or
13.7.4 any Relief Event; or
13.7.5 Aurora enforcing its rights under this Agreement, and/or in recovering possession of the Equipment including specifically (without prejudice to the generality of the foregoing) cost and expenses of repossessing, storing and disposing of the Equipment and of engaging an authorised debt collection agency and such charges as Aurora shall deem reasonable to cover any costs and expenses of administration incurred by it.
13.8 Subject to Condition 13.5, and notwithstanding any other provision of this Agreement, Aurora shall have no liability for failure to perform the Services or its other obligations under this Agreement if it is prevented, hindered or delayed in doing so as a result of any Relief Event or any matter detailed under Condition 12.2.
Mobile/ Network Services
14. Services and Coverage
14.1 Aurora shall use reasonable endeavours to provide Customer with the Network Services and to try and ensure the security of Customer’s communications on the Network Services, at all times. However, due to the nature of mobile technology, it is impossible to provide a fault-free and secure service.
14.2 Aurora/Network Carrier may suspend the Services: (i) in order to carry out maintenance or testing of the Network; (ii) during any technical failure of the Network, (iii) when it is necessary to safeguard the security and integrity of the Network or to reduce the incidence of fraud; (iv) where it identifies Artificially Inflated Traffic; or (v) due to Emergency Planning Measures. Aurora/Network Operator shall endeavour to keep all such suspensions to a minimum and shall give Customer notice of such suspension where reasonably practical.
14.3 Aurora shall use reasonable endeavours to give Customer access to Overseas Networks; however Aurora/Network Operator shall not be responsible for the performance of Overseas Networks or any part of the Network not controlled by Aurora/Network Operator. Overseas Networks may be limited in quality and coverage and access and service availability depends on the arrangements between the Network Operator and Overseas Network operators.
14.4 Access to Emergency Organisations using VoIP services may cease if there is a power cut or power failure, or a failure of the internet connection on which the Services rely (including due to Emergency Planning Measures).
15. CUSTOMER’S USE OF EQUIPMENT AND SERVICES
15.1 Customer may supply the Equipment and Network Services to End Users, but not to any other party. Customer is responsible for ensuring the compliance of End Users with the terms of this Agreement, all applicable laws and Codes of Practice.
15.2 Customer shall only use Equipment authorised for use on the Network.
15.3 Customer shall not:
15.3.1 use any Equipment or Services for any purpose that Aurora (acting reasonably) believes is abusive, illegal or fraudulent; or
15.3.2 do anything that causes the Network to be impaired or damaged; or
15.3.3 modify Equipment and/or Services (including any Software or integral safety features) that Aurora has supplied to the Customer or End Users, except in accordance with the manufacturer’s written specifications, as required by law or with our prior written permission of Aurora.
15.4 Where a specific End User causes the Customer to be in breach of any of its obligations under Condition 15.3, Aurora shall be entitled to suspend such End User’s use of the Services. Before exercising this right, Aurora shall notify Customer of its intention to do so where this is reasonably practicable, allowing an opportunity to remedy the alleged breach (where it is capable of remedy); otherwise Aurora shall notify Customer as soon as reasonably practicable after the suspension. The Customer may, as Aurora sees fit, re-instate the Service (or part thereof) and such reinstatement may be subject to the payment of a reconnection Charge by Customer.
15.5 During any period of suspension, Customer shall continue to pay all Charges due under this Agreement in respect of the suspended Services.
15.6 Customer may use the Equipment and/or Services to access the internet and services not provided under this Agreement. Aurora accepts no responsibility for these services, including where in accessing the service, Customer gives unauthorised parties access to its Equipment.
16. GSM Gateways
16.1 Customer shall not connect or continue connection by or on behalf of itself or any End User of any GSM Gateway(s) to the Network without Aurora’s prior written consent, which may be withheld at Aurora’s absolute discretion.
17. Payment & Tariff
17.1 Unless required pursuant to the General Conditions, the Customer is not entitled to change its tariff to another tariff with a lower monthly fixed charge during the Minimum Term.
17.2 If Customer does upgrade or change its tariff before the end of the Initial Term, Customer acknowledges and agrees that it must extend the Agreement by a further Minimum Term (the “Extension Period”). If the Initial Term has not expired at the date of upgrade or tariff change, the relevant Extension Period to the Initial Term shall, subject to the General Conditions (if applicable), be extended by the number of months by which the Initial Term had not been achieved. For example, if at month 21 of a 24 month Initial Term Customer wishes to extend by a further 12 month period, the Extension Period will be increased by 3 months to 15 months subject to a maximum of 24 months which may apply to the Applicable Customer under the General Conditions.
17.3 Unless Aurora shall otherwise agree, the Customer shall pay all Charges (as set out in the Order) and the Line Rental Charges and any other sums due from the Customer to Aurora by direct debit within 14 days of the date of Aurora’s invoice for such charges. Aurora reserves the right to vary these charges at any time upon thirty days prior written notice subject to the Applicable Customer’s right of termination in the circumstances referred to in Condition 26 and Condition 27.
17.4 The Customer is solely responsible for all Equipment used by the Customer and which is not owned by Aurora including insurance and shall remain liable for all Charges during any period of loss, theft, damage or other inability to use the Equipment.
18. Call Charges
18.1 Inclusive minutes, texts and data usage are defined by the tariff that the Customer is subscribed to. Additional Charges may apply to, and are not limited to: data usage outside of the inclusive allowance, premium rate calls, calls from UK to overseas, calls from overseas to UK and data usage abroad.
18.2 Charges are exclusive of VAT, unless specified otherwise. All Charges not specified in an Order Form shall be at Standard List Price.
18.3 Charges shall be charged in accordance with your tariff.
18.4 Where Aurora has not received payment for its Charges by the due date, Aurora shall: (i) contact Customer to request payment; (ii) be entitled to charge interest on the overdue Charges at the highest rates permitted by applicable law (including, but not limited to the Late Payment of Commercial Debts (Interest) Rate Act 1998); and (iii) be entitled to charge any administration fees or other similar charges levied by a bank in respect of any unpaid items returned by the bank. Where Aurora has not received payment within 7 calendar days of the due date (for a non-direct debit Customer), Aurora may take all or any of the following actions until such time as payment, including any interest due, has been received:
(a) withhold any sums owing to Customer by Aurora and offset it against any sums Customer owes to Aurora under this Agreement or otherwise;
(b) suspend Customer’s and/or End User’s use of the Services in relation to which Charges are outstanding;
(c) withdraw any discount in relation to the relevant Equipment or Service and charge Customer Aurora’s Standard List Prices for that Equipment or Service; and
(d) terminate this Agreement in whole or in part in accordance with Condition 11.3;
(e) refer the matter to our debt collection agents, which will incur costs. Any costs incurred to collect the debt, will be added to the debt, plus VAT at the prevailing rate. You agree that you will be legally liable to pay Aurora that surcharge, and the payment of the same can be enforced against you in court. Customers also agree to pay interest at the relevant reference rate under Condition 10.6 (or, at the option of Aurora, as provided for under the Late Payment of Commercial Debts (Interest) Act 1998), which interest is payable both after and before any judgement and continues to accrue.
18.5 Aurora may credit assess Customer from time to time as reasonably required to assess Aurora’s risk. Each credit assessment shall entitle Customer to have a credit limit on Customer’s Aurora account (details of which are available on request). Aurora may release this information to the Partner responsible for managing your account.
19. Provision of Airtime and Wireless Service
19.1 Aurora agrees and undertakes that it will as and from the commencement of the Wireless Services, or the date as set out in the Order, as applicable and throughout the Term use its reasonable endeavours to:
19.1.1 procure from the Network Operator, Airtime on a 24 hour per day 365 days per year basis; and
19.1.2 procure from the Network Operator, Numbers for assignment to SIM Cards and use by the Customer with Devices: and
19.1.3 connect and activate each SIM Card on to the Wireless Services and to allocate Numbers appropriately to each SIM Card. In the event the Customer wishes to add additional SIM Cards, such additional SIM Cards shall be bound by the terms of this Agreement and the applicable Order Form and shall run for the balance of the Term from the date the SIM Card was connected; and
19.1.4 subject to earlier termination of this Agreement, provide the Wireless Services for a period up to and including the Term of the last Device supplied under this Agreement; and
19.1.5 provide, subject to availability, any Value Added Wireless Services requested by the Customer.
19.2 Aurora reserves the right to add to, substitute, or to discontinue any Value Added Wireless Service at any time. Aurora does not guarantee the continuing availability of any particular Value Added Wireless Service and (as the Customer acknowledges) may be dependent upon third parties in this respect.
19.3 The Customer agrees that in using the SMS Text Messaging Service:
19.3.1 each SIM Card is capable of receiving text messages which may originate from a variety of sources; and
19.3.2 Aurora is acting as a wireless service provider and as such has no knowledge of, involvement with, or liability for specific content of any text messages sent to the Customer’s SIM Cards, which originate from such sources.
19.4 The Customer agrees that in using the SMS Land to Mobile Text Messaging Service:
19.4.1 Aurora is acting as a wireless service provider and as such has no knowledge of, involvement with, or liability for the specific content of any text messages sent by the Customer using the SMS Land to Mobile Text Messaging Service; and
19.4.2 the Customer will use all reasonable endeavours not to use or permit any other person to use the SMS Land to Mobile Text Messaging Service: –
19.4.2.1 fraudulently or in connection with a criminal offence or to send any material which is offensive, abusive, indecent, defamatory, obscene or menacing, a nuisance or a hoax, in breach of any person’s intellectual property, IP Rights or rights of privacy or is otherwise unlawful; or
19.4.2.2 to cause annoyance, inconvenience or needless anxiety; or
19.4.2.3 other than in accordance with the acceptable use policies or applicable terms of any connected telecommunications networks.
19.5 Subject to Condition 17, the Customer shall not be permitted to transfer a SIM Card from the tariff to which that SIM Card was originally connected (“Original Tariff”) except in the following circumstances: –
19.5.1 where the Customer wishes to connect that SIM Card to a tariff for which the Line Rental Charges are the same as, or more expensive than, the Original Tariff; or
19.5.2 where the Customer agrees to pay to Aurora the difference between the Line Rental Charges for the Original Tariff and the Line Rental Charges for the less expensive tariff for the remainder of the Minimum Term for that SIM Card; or
19.5.3 where Aurora agrees in writing that the SIM Card may be transferred to a tariff with lower Line Rental Charges, subject always to any additional terms which Aurora may specify and the Customer has accepted.
20. SERVICE STANDARDS
20.1 The Customer acknowledges that the provision of Airtime is subject to the geographic tent of Airtime coverage and local geography, topography and/or atmospheric conditions and/or other physical or electromagnetic interference that may from time to time adversely affect the provision of the Airtime in terms of line clarity and call interference.
20.2 Aurora may, where reasonable, from time to time and without notice suspend the Wireless Services and provision of Customer Wireless Services and at its discretion disconnect a SIM Card in any of the following circumstances provided that it shall use reasonable endeavours to restore the Wireless Services and reconnect the SIM Card as soon as reasonably practicable: –
20.2.1 during any technical failure, modification or maintenance of the telecommunications systems by which the Wireless Services are provided or access to the Wireless Services is denied to Aurora for any reason; and/or
20.2.2 if the Customer fails to comply with the terms of this Agreement after being given written notice of its failure (including, but not limited to, failure to pay any sums due hereunder) until such failure to comply is remedied; and/or
20.2.3 if the Customer allows to be done anything which, in Aurora’s reasonable opinion, may have the effect of jeopardising the operation of the Wireless Services, or the Wireless Services are being used in a manner prejudicial to the interest of any customer and/or Aurora and/or the Network Operator; and/or
20.2.4 because of an emergency (including Emergency Planning Measures) or upon instruction by emergency services or any government or appropriate authority (including the Network Operator or any due to Emergency Organisation) or for the Customer’s own security.
20.3 Aurora can at its discretion suspend any SIM Card from making calls and disconnect any SIM Card from the Wireless Services if Aurora has reasonable cause to suspect fraudulent use of the SIM Card or the Device, or either are identified as being lost or stolen or used in contravention of this Agreement.
20.4 During any period of suspension arising from the circumstances detailed in Condition 14.2 or 20.2 or as otherwise provided under this Agreement, the Customer shall remain liable for all Charges levied in accordance with this Agreement.
21. SIM Cards and Numbers
21.1 SIM Cards shall remain the property of Aurora at all times and Customer shall be entitled to use the SIM Cards (including any Software they contain) provided for use with the Network Services and / or Wireless Services only.
21.2 Customer shall use all reasonable endeavours to ensure that SIM Cards are only used with Customer’s authorisation and shall inform Aurora as soon as is reasonably practicable after the Customer becomes aware that a SIM Card is lost, stolen or damaged. Subject to Condition 4.4, the Customer shall be liable for any Losses suffered by Customer or its End Users as a result of unauthorised use of SIM Cards (including due to loss or theft), up to the time that Customer has notified Aurora that such SIM Card is being used without Customer’s authorisation.
21.3 Aurora shall allocate Numbers to Customer and Customer shall only use the same to access the Network Services. Aurora may reallocate or change such Numbers as a result of changes in applicable law or instructions from the Regulatory Authorities, but will exercise reasonable endeavours to try and minimise any disruption to Customer or End User. Aurora may withdraw Numbers that have been allocated to Customer as a result of Customer’s failure to comply with this Agreement.
22. Disconnection of SIM Cards
22. 1 A Disconnection Notice may be given by the Customer in respect of a SIM Card upon or at any time after the expiry of the Minimum Term unless the Agreement is subject to a Renewal Term as detailed and provided for under Condition 9.2.
22.2 Upon giving a Disconnection Notice, Aurora will disconnect the relevant SIM Card or SIM Cards from the Wireless Services in accordance with the Disconnection Notice upon the expiry of 30 days from the date of the Disconnection Notice.
22.3 The Customer will pay to Aurora any applicable Termination Fees, calculated in accordance with Condition 11.4 or 12.1 (as applicable), in respect of the SIM Card(s) disconnected.
23. INTELLECTUAL PROPERTY & SOFTWARE
23.1 The IP Rights that exist in Services, Software and Equipment are owned by Aurora and Aurora’s licensors. By supplying Customer with Services, Software and/or Equipment, Aurora is not transferring or assigning ownership of any IP Rights in or relating to them to Customer.
23.2 Where Aurora creates IP Rights during or as a result of the supply by Aurora of Services, Software and Equipment to Customer, Aurora shall own all such IP Rights.
23.3 Customer must not do anything to jeopardise Aurora’s or its licensor’s IP Rights.
23.4 Where Software is provided as part of goods and/or Services, such Software is supplied under licence of the applicable third party owner or licensor.
23.5 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 or Software Supplier of the Software and to indemnify Aurora against any Losses it may suffer if you breach this Condition. Aurora 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 by the Software. You acknowledge that Aurora may not successfully diagnose or correct any faults or errors in the Software. No title or proprietary rights in any Software shall pass to you under any circumstances.
23.6 Customer or End User’s license shall be a single user license. Customer may make one copy of the Software for back up purposes. If Customer does not accept the terms of the relevant click through or shrink wrap Software License, Customer shall be prohibited from using the relevant feature of the Service to which the Software relates and Aurora shall not be bound to deliver the relevant Service. Customer shall be responsible for any Software upgrades (including charges) specified by the licensor or Aurora.
23.7 Aurora may add to any Account any additional charges levied by a Software Supplier.
24. Customer’s Obligations
24.1 The Customer undertakes with Aurora that throughout the Term it will:
24.1.1 Comply with all applicable laws and statutory requirements in relation to the use of the Device and/or other Equipment and the Wireless Services and / or Network Services. The Customer shall be responsible, as licensee of the Third Party Software for any encryption of information between the Customer’s Software and any Devices or Equipment;
24.1.2 Notify Aurora immediately (and confirm in writing within 48 hours) on becoming aware that the Device or SIM Card has been lost, damaged or stolen or that any person is making improper or illegal use of the Device, SIM Card or the Wireless Services. The Customer will be responsible for any Charges incurred as a result of unauthorised use of any Device or SIM Card, or the information contained within a SIM Card, until Aurora has received a request from the Customer to suspend the Wireless Services to that Device or SIM Card;
24.1.3 Not use the Wireless Services (i) in a manner which is inconsistent with a reasonable customer’s good faith use of the same, and (ii) not use the Wireless Services fraudulently or in connection with a criminal offence or for the purpose of sending unsolicited text messages or any material which is offensive, abusive, indecent, defamatory, obscene or menacing, a nuisance or a hoax or which breaches any persons IP Rights or rights of privacy or is otherwise unlawful.
24.2 In the event that a Device and/or other Mobile Equipment or Software is damaged, destroyed, lost or stolen then the Customer agrees to pay the applicable replacement or repair charges as set out from time to time in the Standard List Price and shall be liable to Aurora in respect of any Losses associated with such damage, destruction, loss or theft.
24.3 The Customer may transfer existing number(s) for use in connection with the Wireless Services. The Customer’s existing service provider reserves the right to charge a disconnection fee when moving to another Network. For the avoidance of doubt, Aurora has no control over the amount of any such fees imposed by such service provider.
24.4 The Customer shall be responsible for: (a) procuring and commissioning the Business Systems in accordance with the required specifications; and (b) installing the Software; and (c) provision of suitably qualified IT personnel who have a full working knowledge of the Customer’s email system and firewalls; (d) configuration of the Software for each Device; and (e) ensuring that any of its staff who will provide First Line Support have received appropriate training; and (f) provision of First Line Support for Device users; and (g) provision of any necessary training for Device users; and (h) integration of the Customer’s email accounts with the Device and any Service, including but not limited to resolving any issues arising from the interface with the Customer’s email internet service provider and/or Customer’s IT infrastructure and policy or Business Systems.
24.5 The Customer recognises that if it uses software packages or applications other than those approved by Aurora for use with a Device or any Business System, Aurora shall have no liability whatsoever for any failure of the Device or Service resulting from the use by the Customer.
24.6 The Customer agrees that it will deactivate any lost, stolen or replaced Devices from the Business Systems.
24.7 The Customer agrees that it is procuring the SIM Cards and Devices solely for its own use, and its End Users, and furthermore that it will not resell or otherwise act as any form of distributor in respect of the SIM Cards, Equipment or Devices.
24.8 The Customer may transfer or Port existing number(s) for use in connection with the Service. The Customer’s existing service provider may, depending on whether the Customer is a Small Business Customer, reserve the right to charge a disconnection fee when moving from another network. For the avoidance of doubt, Aurora has no control over the amount of any such fees imposed by such service provider.
24.9 Subject to Condition 24.10 and the rights of Applicable Customers, THE CUSTOMER ACKNOWLEDGES THAT IT IS LIABLE FOR ALL DATA ROAMING CHARGES AND DATA USAGE CHARGES (INCLUDING BUT NOT LIMITED TO SUPPLIER EXCESS ROAMING CHARGES) WHETHER AUTHORISED BY THE CUSTOMER OR OTHERWISE. The Customer agrees that if there is any excess use of data roaming or data usage which exceeds any limit on download or any applicable fair data use policy, that it shall be liable for all such Charges and any excess charges, which shall be charged at Aurora’s Standard List Prices at such time.
24.10 The Customer acknowledges that, unless the Customer has selected a billing limit for its Call Charges, Aurora has no obligation to notify the Customer once it reaches the allowable limits of data roaming as stipulated by the Customer (“Notice”) and that the Customer agrees that it does not require such Notice in order to continue receiving data services. The Customer and Aurora may also agree a suitable financial limit to such data on the Order Form. If a financial limit has been set, Aurora will only send a Notice to the user if the User exceeds this amount and the user shall have the right to opt out of such Notice and continue to receive the services.
25. Call Limit, Deposit, Alerts, Bars and Payment
25.1 The Customer may (via the Customer’s self-service portal) or Aurora may set a limit on the amount of Call Charges Customer may incur during each calendar month and/or a maximum number of active Connections and/or a bar on SIM Card(s) being used on overseas networks or for making international calls or premium rate calls, which Aurora refers to as a call limit. Aurora may agree to increase or remove the call limit, after making credit checks, where applicable. Customer may be able to go over Customer’s call limit, but if this happens you shall be required to pay all Charges immediately. Aurora reserves the right to refuse to provide Equipment and/or Services to you if in Aurora’s opinion it may cause you to exceed your call limit or if the call limit is already exceeded.
25.2 Aurora may ask you for a deposit:
25.2.1 when Aurora connects your SIM Card;
25.2.2 if you wish to increase or remove your call limit;
25.2.3 if you increase how much you use the Services; or
25.2.4 to unblock your SIM Card from contacting international numbers, using overseas networks, or making premium rate calls.
25.3 When this Agreement expires or is terminated for whatever reason, Aurora will repay any deposit that you have provided to us, less any money you owe Aurora. Aurora will not pay any interest on any deposit Aurora receives from you.
25.4 If there is a significant increase in your usage between bills, Aurora may contact you and require you to pay all or part of your outstanding usage Charges in order to continue to use the Services.
25.5 Aurora may set up alerting, and subsequent barring to alert the End User to high usage, particularly when overseas. These alerts and bars are the Customer’s sole responsibility to act upon to avoid further charges. Alerts and bars may also be delayed when overseas, as call and data information may take up to 48 hours to be received from overseas carriers.
26. Changing the Terms of this Agreement
(Applicable Customers ONLY)
26.1 Aurora reserves the right from time to time to vary the Agreement as explicitly stated in this Agreement, including as follows:
26.1.1 Aurora shall be entitled to vary the Aurora website. For variations to international Call Charges set out on the Aurora website, such variations shall be published at https://www.aurora.co.uk/international-call-rate-amendments/ or, for any other Charges (including international Call Charges), sent to you via email, at least 30 days before such changes coming into effect or, where the variation arises due to changes imposed by Third Party manufacturers, Third Party suppliers or Regulatory Authorities or as a result of a change in applicable law, regulation, guideline or code of conduct, as much notice as is reasonably practicable; and
26.1.2 Aurora shall be entitled to vary the provisions of this Agreement (including for the avoidance of doubt, the Charges subject to Condition 27.1 of these Conditions). Aurora will provide to the Applicable Customer at least 28 days’ notice in writing of any such variation or, where the variation arises due to changes imposed by Third Party manufacturers, Third Party suppliers or a regulatory body or as a result of a change in applicable law, regulation, guideline or code of conduct, as much notice as is reasonably practicable.
26.2 Where Aurora makes a change to the Agreement and such change would give the Applicable Customer a right to terminate the Agreement under Condition 27.1 of these Conditions, Aurora shall notify the Applicable Customer of the change and such right to terminate in accordance with Condition 27.1.2 of these Conditions. Where no such right to terminate under Condition 27.1 of these Conditions arises, notice of such change shall be provided in accordance with Condition 26.1.1 or 26.1.2 of these Conditions as applicable.
26.3 In the event that the Applicable Customer has a Bundle with Aurora then Aurora shall, at the time of notification under Condition 26.1, also notify the Applicable Customer of any rights of termination in relation to other contracts with Aurora within the Bundle (if any).
27. Termination Resulting From Changes to this Agreement
(Applicable Customer’s ONLY)
27.1 Subject to Condition 27.2 of these Conditions, the Applicable Customer shall be entitled to terminate the Agreement (or the relevant part thereof dependent on the affected Service) by providing notice in writing if:
27.1.1 Aurora increases the prices set out on the Aurora website and/or the Charges in respect of the Services provided in relation to Terminal Equipment pursuant to Condition 26 of these Conditions other than in accordance with Condition 27.8 of these Conditions or as otherwise permitted under the terms of the Agreement; or
27.1.2 Aurora varies the terms of this Agreement, the Services, the Equipment, Network or Software (other than as permitted under the terms of the Agreement including but not limited to the exceptions at Condition
27.2 of these Conditions) pursuant to Condition 26 of these Conditions and that such variation is not exclusively to the Applicable Customer’s benefit, provided that such notice is provided in accordance with the instructions set out in Aurora’s notice of the changes to the Agreement and provided to Aurora within 30 days of the date that notice of the change is given to the Applicable Customer by Aurora in accordance with Condition 26 of these Conditions. Where the Applicable Customer terminates the Agreement in accordance with this Condition 27.1, the Agreement will terminate on the earlier of: (i) 30 days after the Applicable Customer’s notice is deemed delivered in accordance with this Condition 27.1 and Condition 30; or (ii) the date on which the change comes into effect or, where this is not feasible due to the timing of the Applicable Customer’s notice of termination, as soon as reasonably possible after that date; or (iii) a date agreed in writing by Aurora and the Applicable Customer.
27.2 The right to terminate in Condition 27.1 above shall not apply where:
27.2.1 Aurora makes any change to the Agreement, Charges, Equipment, Network, Services or Software that are exclusively to the Applicable Customer’s benefit, or where the change is made for any of the following reasons:
27.2.1.1 the change is purely administrative and has no negative effect on the Applicable Customer including but not limited to any change to Aurora’s contact details, registered office or non-contractual processes, for example contacting Aurora to speak to an account manager, raise faults or disputes or any other process change which Aurora may make from time to time;
27.2.1.2 there is a change in applicable law, regulations or the rules of a regulatory body, listing authority or governing body that applies to Aurora, the Network, Equipment, Services or Software that are provided by Aurora under the Agreement;
27.2.1.3 Aurora has a legal or regulatory obligation to pass on cost increases and/or changes to the Agreement, Network, Equipment, Services or Software for example where the service charge for calling 084, 087, 09 and 118 numbers increase;
27.2.2 the Agreement, Charges, Equipment, Network, Services or Software change for the following reasons:
27.2.2.1 changes are made to the Equipment, Network, Services or Software where the Equipment, Network, Services or Software are variable including but not limited to:
27.2.2.1.1 changes to the features or functionality of the Equipment, Network, Services or Software;
27.2.2.1.2 changes to operational or administrative elements of the Services including but not limited to changes to the hours during which the Applicable Customer can contact Aurora and changes to or removal of individual communication channels through which the Applicable Customer can contact Aurora, changes to any portal, platform or similar tool that Aurora uses or makes available for the Applicable Customer to use in communicating with Aurora and managing the provision of the Services and any other changes in relation to the processes through which Aurora delivers the Services;
27.2.2.1.3 any changes to the Network which reflect the overall variability of the Network including but not limited to any routine maintenance updates and upgrades;
27.2.2.1.4 the replacement of any Equipment, Services or Software which is no longer supported by the manufacturer or which Aurora otherwise determines to be end-of-life with equipment, services or software of an overall equivalent specification or standard;
27.2.2.1.5 changes to the Services, Software or Equipment where there is a minimum technical requirement for equipment, services or software which the Applicable Customer must maintain in order to make use of the Services (including but not limited to a requirement to have a 2G or 3G service where this is withdrawn) and the Services, Software or Equipment are changed because the Applicable Customer no longer meets the minimum technical requirements specified by Aurora from time to time and the Applicable Customer either does not implement any changes to the Applicable Customer’s equipment, services or software required to meet the minimum technical requirement or, where such equipment, services or software are supplied by Aurora, where the Applicable Customer does not agree to accept new or updated equipment, services or software from Aurora which would meet the minimum technical requirement;
27.2.2.2 changes to international call rates or services or roaming services or charges that are directly linked to increases in wholesale rates or technological changes notified to Aurora by other providers, including but not limited to the withdrawal of 2G or 3G services or any Supplier Excess Roaming Charges. Any changes to the Equipment, Services or Charges under this Condition 27.2.2.2 will be notified to the Applicable Customer and will not be made more frequently than once per month;
27.2.2.3 changes to Third Party charges or costs which are passed on to Aurora by a Third Party which are directly attributable to the Agreement, Charges, Equipment, Network, Services or Software (including for the avoidance of doubt under Condition 24.9);
27.2.2.4 where Aurora has provided general product or service descriptions in relation to the Equipment, Network, Services or Software such descriptions are indicative guidance only and Aurora may substitute the Equipment, Network, Services or Software for those of an overall equivalent standard even if the exact features and functionality may differ;
27.2.2.5 changes to Charges or other costs which are based on the cost of providing the Services, Equipment, Software or Network to the Applicable Customer or carrying out the relevant task in relation to the Services, only to the extent that any change is directly attributable to a change in the cost to Aurora;
27.2.2.6 where Aurora believes that the change is necessary for technical or security reasons;
27.2.2.7 where Aurora has agreed to provide power or other utilities as part of the Services to install and maintain Equipment, and there is any increase to the price payable to a third party (excluding any Affiliate) for such power or utilities; provided that Aurora will notify the Applicable Customer of any changes under this Condition 27.2.2 in accordance with Condition 26. If Aurora determines that there is a change under this Condition 27.2.2 that is likely to be of material detriment to the Applicable Customer, Aurora will notify the Applicable Customer of their right to terminate this Agreement in accordance with Condition 27.1 of these Conditions and the Applicable Customer may terminate this Agreement without paying Termination Fees, subject to Condition 27.6 of these Conditions.
27.2.3 the increases in prices or Charges or the variation of the terms of the Agreement, the Services, Equipment, Software or Network have been agreed by the Applicable Customer (including in accordance with Condition 27.8 of these Conditions).
Aurora may inform the Applicable Customer of any changes made for the reasons set out in this Condition 27.2 in accordance with Condition 26 of these Conditions. If the Applicable Customer decides to terminate the Agreement due to a change made for the reasons set out in this Condition 27.2, the Customer may still be required to pay a Termination Fee.
27.3 Subject to Condition 27.2 of these Conditions, if the change to the Agreement which is referred to in Condition 27.1 of these Conditions relates:
27.3.1 only to an Add-On Service that the Applicable Customer has already signed up to, and the Applicable Customer decides to terminate the Agreement due to the change in the Add-On Service, the Applicable Customer may still be required to pay a Termination Fee for terminating the Services other than the Add-On Service early (as the Applicable Customer already has the right to end the Add-On Service at any time). Aurora will confirm any such applicable Termination Fee to the Applicable Customer;
27.3.2 only to an Ancillary Service that the Applicable Customer has not already signed up to or does not use, the Applicable Customer will not have the right to terminate the Agreement without paying a Termination Fee; or
27.3.3 only to an Ancillary Service that the Applicable Customer has already signed up to or uses, and Aurora believes that the changes are not exclusively to the Applicable Customer’s benefit, Aurora will notify the Applicable Customer of this and inform the Applicable Customer of the right to terminate the affected Ancillary Service and the Agreement without paying a Termination Fee, subject to Condition 27.6 of these Conditions.
27.4 If the Applicable Customer has entered into other agreements with Aurora, or has a Bundle with Aurora, the Applicable Customer may in certain circumstances be able to terminate some of those agreements where the Applicable Customer terminates this Agreement in accordance with Condition 27.1. For the avoidance of doubt, changes to this Agreement will not give rise to a right to terminate any other agreement which is not linked to this Agreement and Aurora will notify the Applicable Customer in accordance with the terms of the relevant agreement if the Applicable Customer has a right to terminate any other agreement because of a change made by Aurora to this Agreement.
27.5 Where Aurora enables the Applicable Customer to use a service under the Agreement that is supplied by a Third Party and is subject to that Third Party’s terms and conditions, including but not limited to End User licenced Software, Aurora is not responsible for any changes made by that Third Party to the Third Party’s services, charges or terms and conditions, or for notifying the Applicable Customer of those changes as such changes are outside the control of Aurora and Aurora may not be aware of them.
27.6 Termination of the Agreement in accordance with Condition 27.1 of these Conditions will not affect the Applicable Customer’s requirement to pay the Charges relating to the Agreement incurred prior to the date of termination, but, in this event, subject to Condition 27.2 and 27.3 of these Conditions the Applicable Customer shall not be liable for any Termination Fees in respect of the Services. Where the Applicable Customer terminates the Agreement in accordance with Condition 27.1, the Applicable Customer will be obliged to pay any outstanding or overdue charges; and
27.6.1 where the Agreement includes Equipment, the charges in respect of the cost of that Equipment; and
27.6.2 where the Agreement includes any volume-, value-, time- based or other incentives which the Applicable Customer has received the benefit of prior to termination, including but not limited to any equipment fund or transformation fund, a payment equivalent to the proportion of the incentive that the Applicable Customer has had the benefit of relating to the period between termination of the Agreement and the end of the Term, or the proportion of the incentive which the Applicable Customer has had the benefit of prior to the date it should have vested in accordance with the applicable terms for that incentive, where such incentive has been partly or fully used by the Applicable Customer.
Aurora shall confirm any such applicable Charges to the Applicable Customer following receipt of the Applicable Customer’s notice to terminate in accordance with Condition 27.1.
27.7 For the avoidance of doubt:
27.7.1.1 where the Agreement, Equipment, Network, Services or Software is not provided in accordance with the agreed standards set out in the Agreement this shall not be regarded as a change to the contractual terms of the Agreement or a change to the Services, Equipment, Network or Software but as a breach of the Agreement by Aurora (as the case may be), in which case the contractual remedies set out in the Agreement shall apply and the Applicable Customer shall have no right to terminate in accordance with Condition 27.1; and
27.7.1.2 if the Applicable Customer requests any change to the Agreement, Charges, Equipment, Network, Services or Software and Aurora agrees to such change, the Applicable Customer will not have a right to end the Agreement under Condition 27.1.
Increase in Charges (All Customers)
27.8 The Customer’s Charges may increase in the following instances:-
27.8.1 In line with Network Operators, Aurora will change the price of mobile tariffs (including any roaming charges) in April each year. This price change, as detailed in the Contract Summary (if applicable), will be Retail Price Index plus 3.9% as at February of the same year. If the Retail Price Index rate is negative, Aurora will only apply an increase of 3.9% for example; or
27.8.2 In the event that Aurora’s third party suppliers increase the costs of supply to Aurora (including any roaming charges) (Supplier Charges) and these increased Supplier Charges would result in an increase to the Customer in excess of those arising under Condition 27.8.1 in which case they would be subject to such rights arising under the General Conditions.
27.9 Save as expressly stated otherwise in this Agreement (including Conditions 26 and 27), changes to this Agreement must be made by written agreement of the parties.
28. Confidential Information & Data Protection
28.1 Parties agree in respect of Confidential Information: –
28.1.1 Except as in relation to any assignee or subcontractor referred to in Condition 30.11 below or any Representative within the parties’ respective Group (provided that each such Representative, to whom Confidential Information of the other party is disclosed, is required to maintain the confidentiality of all Confidential Information as if a party to this Agreement), neither party shall, without the previous written consent of the other, use, publish or disclose to any person, nor cause nor permit any of its Representatives to use, publish or disclose any Confidential Information which it has received from the other, otherwise than for the performance of its duties under this Agreement. Confidential Information shall not include information: (i) which becomes generally available in the public domain other than by its unauthorised disclosure by the receiving party; or (ii) which has or may come into the possession of one party otherwise than in breach of a duty of confidence to the other party or in breach of this Agreement; or (iii) which is already in the possession of a party with the right to lawfully disclose; or (iv) which is required to be disclosed by law.
28.1.2 Equipment may contain data storage components which store data processed by the Equipment during their use by the Customer (the “Stored Data”). The Stored Data may include confidential or personal data. It is the Customer’s responsibility to ensure that Stored Data is securely deleted before the Equipment is disposed of by the Customer. If required by the Customer, a secure deletion service to delete the Stored Data may be purchased by the Customer from Aurora for an Additional Charge.
28.1.3 If the Equipment is returned to Aurora without the Customer having securely deleted the Stored Data in accordance with Condition 28.1.2 (via itself or a third party) and certifying to Aurora in writing that this has been done, then Aurora may arrange, but is not obliged to do so, for the secure deletion of the Stored Data. If the Customer requires a certificate confirming secure deletion of the Stored Data, Aurora may charge the Customer a reasonable amount.
28.2 To the extent that Aurora processes any personal data while providing Services or Equipment to the Customer under this Agreement, Schedule 1 will apply, and each party will comply with its obligations under Schedule 1.
29. Contact & Notices
29.1 For day-to-day queries or if you wish to discuss any aspect of the Services, you can contact Aurora by telephone on 0333 241 3344, or by email at technical@aurora.co.uk.
29.2 You must keep Aurora updated with any changes to your business name, number, address, and other material company information (including whether you become, or cease to be, a Small Business Customer and you agree to indemnify Aurora in respect of any Losses arising out of your failure to do so.
29.3 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 Order 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:
29.3.1 if delivered personally, when left at the address;
29.3.2 if sent by first class recorded delivery, at the time recorded by the delivery agent; or
29.3.3 if sent by email, at the time received by the addressee of the notice (of which a delivery receipt shall be conclusive evidence).
29.4 For the avoidance of doubt Condition 29.3 shall not prevent Aurora from publishing information generally to Customer’s (including the Standard List Prices) by posting such information on www.aurora.co.uk.
30. General Provisions
30.1 The Customer shall not, without the prior written consent of Aurora, at any time from the date of the Agreement to the expiry of eight months after the expiry or termination of the Agreement (whichever is the latest), solicit or entice away from Aurora or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of Aurora. The Customer shall not be in breach of this Condition,
30.1 if it hires an employee or subcontractor of Aurora as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of Aurora.
30.2 The Customer shall:
30.2.1 co-operate with Aurora in all matters relating to the Services and appoint an account manager (“Customer’s Account Manager”), who shall have the authority to contractually bind the Customer on matters relating to the Agreement;
30.2.2 provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by Aurora;
30.2.3 provide in a timely manner such information as Aurora may request, and ensure that such information is accurate in all material respects; and
30.2.4 be responsible (at its own cost) for preparing the relevant premises for the supply of the Services and/or Equipment.
30.3 Parties agree that subject to the rights under Condition 26 and 27 and Condition 10.4: –
30.3.1 the Customer’s Account Manager and Aurora’s Account Manager (appointed from time to time by Aurora) shall meet at least once every year to discuss matters relating to the Services. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
30.3.2 if either party requests a change to the scope or execution of the Services, Aurora shall, within a reasonable time, provide a written estimate to the Customer of:
30.3.2.1 the likely time required to implement the change;
30.3.2.2 any variations to Aurora’s Charges arising from the change;
30.3.2.3 the likely effect of the change on the Services; and
30.3.2.4 any other impact of the change on the terms of the Agreement.
30.3.3 subject to the Applicable Customer’s rights under Condition 26 and 27, if Aurora requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
30.3.4 if the Customer wishes Aurora to proceed with the change, Aurora has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Services and any other relevant terms of the Agreement to take account of the change.
30.4 You agree 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 your IP Rights) which it requires in order to supply the Services and/or Equipment.
30.5 As between the Customer and Aurora, all IP Rights and all other rights arising out of the Agreement shall be owned by Aurora. Aurora licenses all such rights which are owned by Aurora, to the extent that it is legally permitted to do so, to the Customer free of charge and on a non-transferrable, non-exclusive, worldwide basis to such extent as is reasonably necessary to enable the Customer to make reasonable use of the Equipment and /or the Services. This license shall automatically terminate if the Agreement expires or terminates for any reason.
30.6 Where Aurora has been engaged by the Customer to install, implement, integrate, maintain or upgrade Software in the Customer’s computing environment, the Customer acknowledges that Aurora is not the author, developer, provider or seller of such Software. As such Aurora gives no representations or warranties regarding performance of that Software and the parties agree that Aurora shall have no liability for any defects, flaws, programming errors, inefficiencies or malfunctions in any such Software, or for any lack of functionality in or non-performance of the Software. The Customer agrees that:
30.6.1 its exclusive remedies with respect to any Software will be against the Software Supplier thereof;
30.6.2 it will not make any claim against Aurora in relation to its use of Software; and
30.6.3 its use of any Software will be governed solely by the terms of the Customer’s license agreement with the Software Supplier thereof.
30.7 This Agreement represents the entire Agreement and understanding of the parties in respect of the subject matter and supersedes all prior agreements, negotiations, representations, proposals and understandings, whether written or oral.
30.8 Without prejudice to Conditions 26 and 27 above, any variation of these Conditions must be in writing and signed on behalf of both parties.
30.9 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.
30.10 No provision of this Agreement is intended to or will operate to confer any benefit on a person who is not a party to this Agreement, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
30.11 You may not assign, sub-contract, transfer, or otherwise deal with, in whole or in part, your rights under this Agreement (including but not limited to the Equipment and/or Services) 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 this Agreement.
30.12 Nothing in this 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.
30.13 In the event that any term of this 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. If there is any inconsistency between the various provisions of this Agreement, the following order of precedence will apply, where 1 has a higher precedence than 2 and so on: (1) Contract Summary (if applicable); (2) Contract Information (if applicable); (3) Any agreed amendment; (4) Order Form; (5) the Conditions.
30.14 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 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.
30.15 This Agreement shall be governed by English law and subject to the exclusive jurisdiction of the English courts.
30.16 Termination of this Agreement or any part thereof, shall be without prejudice to any other rights or remedies a party may be entitled to at law or under the Agreement and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
30.17 Only provisions set out in this Agreement shall apply to Aurora’s supply of Services and/or Equipment to the Customer. All other provisions are expressly excluded to the maximum extent permitted by law. The Parties acknowledge that, in entering into this Agreement, neither party has relied upon any statement or warranty made, or agreed to, by any person, except those expressly set out within this Agreement. However, this shall not be taken to exclude either party’s liability for fraud.
30.18 If a misrepresentation or untrue statement has been made, the only remedy available to the parties shall be a claim for damages for breach of this Agreement, unless such misrepresentation or untrue statement was made fraudulently, or a provision of the Agreement was induced by fraud, in which case all remedies under English Law shall be available.
30.19 Any changes made to Customer’s systems or processes that may affect the Services (including any change to Business Systems) are at Customer’s sole risk. Aurora shall not be liable to continue to support the Services and/or Equipment to the extent that they are affected by such change.
30.20 Where Aurora supplies Equipment and/or Services to Customer that is not expressly covered by the Order Form, such supply shall be deemed to be governed by the terms and Conditions of this Agreement.
30.21 If there is a dispute under this Agreement, and Aurora’s Account Manager has been unable to resolve the issue to Customer’s satisfaction, Customer may escalate the issue to Aurora customer services. If Aurora customer services is unable to resolve the issue, this issue will be escalated through Aurora’s customer complaints procedure. If you are a Customer who is a Small Business and our customer services team is unable to resolve your complaint, you may ask that the matter be referred to an independent ombudsman in accordance with our customer complaints code of practise which is available on Aurora’s website at Customer Complaints Code – Aurora or by contacting Aurora. The parties shall use the escalation process to its full before taking legal action against the other party.