1 DEFINITIONS

‘Acceptable Use Policy’ means Virocom Ltd’s acceptable use policy (as updated and/or amended from time to time).

‘Agreement’ means the MSA (if any) and all Product Agreements together (including, for the avoidance of doubt, the terms of any relevant Product Schedules).

‘Virocom Ltd’ means a company registered in England and Wales under company number 5055945(trading as “Virocom Ltd”).

‘Charges’ means any sums payable to Virocom Ltd under this Agreement for any of the Services provided, as further set out in Clause 4.1.

‘Confidential Information’ has the meaning set out in Clause 17.1.

‘Customer’ means the customer of Virocom Ltd which enters into one or more Product Agreements.

‘Customer Group’ means the Customer, any subsidiary company of Customer for the time being, Customer’s holding company for the time being and/or any holding company or subsidiary of the Customer’s holding company for the time being.

‘Data Protection Legislation’ means the Data Protection Act 1998 (as amended or replaced from time to time) and any related legislation, regulations or guidance from time to time.

‘Direct Loss’ means any loss characterised at law as direct loss and excludes all indirect, special or consequential loss.

‘Equipment’ means the items of hardware leased, rented or purchased from Virocom Ltd to the Customer under this Agreement.

‘Force Majeure’ means any cause not within the reasonable control of a party and which that party cannot reasonably prevent or overcome, as a result of which such party is unable to perform its obligations under this Agreement and shall include, in the case of Virocom Ltd, any delay or failure caused by Virocom Ltd’s contractors or Network Operator but shall exclude any failure to pay the Charges.

‘Gross Recurring Charges’ means any recurring charges applicable to the Customer, as defined in the  Product Agreement, prior to any Customer-specific discounts being applied.

‘Infrastructure Provider’ means a third party provider of Service Infrastructure, including Network Operators and Cloud Service Providers, and third party providers of data centres and software.

‘Intellectual Property Rights’ means any and all intellectual property rights including patents, trade marks, design rights, copyright, rights in databases, domain names, topography rights, and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with any and all goodwill relating or attached thereto and the right to apply for registration of and/or register such rights and all extensions and renewals thereof.

‘IP Address’ means an IP address allocated to the Customer for the use of one or more Products.

‘Legislation’ means any statute, statutory provision or subordinate legislation in force from time to time.

‘Liability’ means all liability including liability for breach of contract, negligence, breach of statutory duty and/or tort, any liability in relation to any indemnity and any other liability howsoever arising.

‘Losses’ means losses, damages, costs, claims, proceedings, expenses and liabilities (including reasonable legal fees).

‘MSA’ means the Master Services Agreement (if any) executed between Virocom Ltd and the Customer.

‘Network’ means a telecommunications network run by a Network Operator in respect of which Virocom Ltd is providing resale services.

‘Network Operator’ means an organisation operating a telecommunications network or hosted services environment, which has in each case been duly authorised to do so.

‘Number’ means a telephone number used for receiving the Services, whether or not allocated by Virocom Ltd.

‘Product’ means one of Virocom Ltd’s standard products from time to time, which may consist of a combination of Equipment, software and other goods and services.

‘Product Agreement’ means an agreement for a Product entered into between Virocom Ltd and the Customer for the purchase and provision of a Product, subject to these Terms and Conditions and the relevant Product Schedule, and validly executed by duly authorised representatives of both parties; and the term ‘Product Agreement’ shall encompass documents titled as ‘Product Agreements’ and documents titled ‘Product Agreement Forms’.

‘Product Schedule’ means (if applicable) the Schedule setting out specific terms and conditions in relation to the provision of a particular Product.

‘Purchase Order’ means an order in writing for additional goods or services from the Customer to Virocom Ltd, whether in the form of an official purchase order, an email, fax or letter, and issued by the Customer and accepted by Virocom Ltd in accordance with Clause 2.5.

‘Service Infrastructure’ products and/or services which Virocom Ltd is reselling as part of a Product, and/or the infrastructure on which such products and/or services depend, including without limitation any Network and the internet.

‘Services’ means the provision of any Product, Equipment or other goods or services by Virocom Ltd to the Customer under a Product Agreement or a Purchase Order.

‘Terms and Conditions’ means Clauses 1 to 18 of this document.

‘User’ means each user within the Customer Group who is provided or to be provided with Services under the terms of this Agreement.

‘User Details’ means in respect of each User, that User’s full name, number and any specific billing requirements.

‘Year’ means, in respect of any Product Agreement, any twelve-month period ending on an anniversary of either (i) the date that the Product Agreement is duly executed, or (ii) if earlier, the date on which Virocom Ltd first began to provide Services under that Product Agreement.

2    STRUCTURE AND DURATION

2.1    Terms and Conditions: These Terms and Conditions shall apply to any Product Agreement that the Customer enters into. These Terms and Conditions shall have effect on and from the date that the Customer signs the MSA (or, if no MSA is signed, from the date of signature by both Parties of the Customer’s first Product Agreement), up to and including the date that all the Customer’s Product Agreements are no longer in force, whether through expiry or termination. Each Product Agreement shall also be subject to the provisions of any relevant Product Schedule, which are deemed incorporated into such Product Agreement on signature of the same. For the avoidance of doubt when not in the procession of a Virocom Service Application Form, the use and/or provision of services provided by Virocom Ltd for Services and/or Equipment will be deemed to be under a 36-month agreement starting from the day/date the usage of service commenced.
2.2    Product Agreements: Each validly executed Product Agreement shall constitute a separate binding contract, subject to these Terms and Conditions, the relevant Product Schedule(s) and, where applicable, the Customer’s MSA. Each Product Agreement shall have effect on and from the date that it is executed by both Parties. The duration (including any minimum period), renewal, termination and expiry of each Product Agreement shall, subject to Clauses 2.3 and 2.4, be as set out in such Product Agreement.
2.3    Should the Customer fail to give notice to renew a Product Agreement and subsequently continues to use the relevant Services beyond the end of the notice period (or current term of the Product Agreement, as the case may be), the Product Agreement shall be deemed to continue for an indefinite period with a minimum of 12-month. Virocom Ltd shall be entitled to charge the Customer for the full price of the relevant Product without any previously applied discount.
2.4    If a Product Agreement contains a minimum spend commitment from the Customer and, at the intended date of termination or expiry of such Product Agreement, such spend commitment has not been reached, then the term of the Product Agreement shall be extended on the same terms until such time as the minimum spend commitment has been satisfied. In the event of such an extension, the Product Agreement will automatically terminate at the end of the month in which the minimum spend commitment has been satisfied.
2.5    Purchase Orders: Any request for additional Services not already specified in a Product Agreement, and any change to an existing Product (including an upgrade or re-sign) will be made by way of a Purchase Order (which, for the avoidance of doubt, may take the form of email correspondence). A Purchase Order is accepted by Virocom Ltd and becomes part of the relevant Product Agreement on the earlier of the date when Virocom Ltd has agreed to it and the date when it is fulfilled. Until a Purchase Order is accepted, it does not form part of the relevant Product Agreement. Virocom Ltd reserves the right to reject any Purchase Order submitted by the Customer.  No Purchase Order submitted to Virocom Ltd may be cancelled by the Customer except with the agreement in writing of Virocom Ltd (which agreement may be given subject to conditions).  All Purchase Orders will be deemed to be issued under and invoking these Terms and Conditions and the relevant Product Agreement.
2.6    Customer’s Group:  The Customer may enter into a Product Agreement (or Purchase Order) for the benefit of any company in the Customer Group.  The Customer will ensure that each such company complies with the terms and conditions of this Agreement as if it were named in this Agreement in place of the Customer, and shall enforce the terms of this Agreement against such company if requested by Virocom Ltd.

3    SERVICES

3.1    Supply of Services: All Services are supplied as set out in the relevant Product Agreement, Product Schedule and these Terms and Conditions.
3.2     Equipment: All Equipment is supplied by Virocom Ltd on an ‘as is’ basis, and with the benefit of the relevant manufacturer’s warranty (if applicable and to the extent freely transferable). Virocom Ltd accepts no liability for failure, loss or damage outside of The Sales of Goods Act 1979 and/or Distance Selling Regulations 2000.  Risk shall pass in the Equipment when delivered. Title shall pass when the Customer has paid Virocom Ltd in full in respect of (i) the Equipment and (ii) all other sums which are or which become due to Virocom Ltd from the Customer on any account. When Equipment is purchased and the purchase price is less than the published list price, title will only pass on completion of the minimum period as specified in the relevant Product Agreement.  Delivery of Equipment shall be completed when Virocom Ltd places the Equipment at the Customer’s disposal at the delivery point.  The Customer shall arrange for the Equipment to be signed for on delivery. Until title in the Equipment has passed to the Customer in accordance with this clause 3.2, the Customer must:
3.2.1 Hold the Equipment on a fiduciary basis as Virocom Ltd’s bailee;
3.2.2 Store the Equipment (at no cost to Virocom Ltd) separately from all other goods of the Customer and/or any third party in such a way that it remains readily identifiable as Virocom Ltd’s property;
3.2.3 Not destroy, deface or obscure any identifying mark or packaging relating to the Equipment;
3.2.4 Maintain the Equipment in satisfactory condition and keep it insured on Virocom Ltd’s behalf for its full price against all risks to the reasonable satisfaction of Virocom Ltd. On request the Customer shall immediately produce the full policy of insurance to Virocom Ltd.
3.3 Time of supply: The desired commencement date for the supply or completion of any Services or the delivery of any Equipment is the date (if any) specified in the relevant Product Agreement (or
Purchase Order, as the case may be). No date specified by Virocom Ltd shall be contractually binding on Virocom Ltd.  The Customer acknowledges that the supply of Equipment is subject to availability.
3.4    Resale: The Customer undertakes that it will not offer any of the Services for resale or re-supply or otherwise make Services available to any person on an arm’s-length commercial basis.

4    PRICING

4.1    Charges for Products, Equipment and services: The Charges for any Product, Equipment or services shall be as set out in the relevant Product Agreement. Where the Product Agreement does not specify a price for any Product, Equipment or services required, the price will be as set out in Virocom Ltd’s current price lists, unless otherwise quoted by Virocom Ltd in writing (any such quotation being valid for 30 calendar days from the date of issue).  A quotation will not be an offer capable of acceptance.
4.2    Calculation of Charges:  Save in the case of manifest error, Virocom Ltd’s calculation of charges, rebates and discounts shall be final and reference will not be had to any of the Customer’s data records or logs.
4.3    Price changes: Virocom Ltd will use its reasonable endeavours to ensure that the Charges remain competitive and reflect any increase in business volumes.  If requested, Virocom Ltd will meet the Customer to review the Charges no more frequently than once every 6 months. Virocom Ltd may change the Charges to reflect any increase in the amount it is charged by the relevant Infrastructure Provider by giving the Customer (if reasonably possible) 30 calendar days’ written notice.  If the total cost to the Customer of the Services is increased as a result of such a notice, the Customer may request (in respect of the Services in respect of which the increase has occurred) that the Charges for the provision of those Services are reviewed. This request must be made within 14 calendar days of the Customer being given notice of the change to the Charges. Virocom Ltd will have no obligation to alter such Charges unless it is practical to do so.
4.4    Credit limit:  The Customer agrees that Virocom Ltd may search the files of credit reference agencies for information on the Customer. Virocom Ltd may, on 14 calendar days’ notice to the Customer, specify a reasonable monetary limit that will apply to all or any of the Charges due or which will become due to Virocom Ltd and require a particular payment method or period for the Charges.  If any monetary limit set by Virocom Ltd is exceeded, Virocom Ltd reserves the right to suspend provision of the Services. If Virocom Ltd forecasts that such limit may be exceeded, the Customer shall deposit, within 7 calendar days of being given a notice to this effect, the amount by which Virocom Ltd forecasts the limit will be exceeded in the relevant billing period.  Virocom Ltd may retain any amount deposited until the end of this Agreement and no interest will be paid on this sum.
4.5    Tax: All Charges are exclusive of any value added, sales, withholding or other tax (other than any tax based on Virocom Ltd’s income) which shall be charged in addition.
4.6    Payment terms: All invoices shall be due and payable 14 calendar days after the date of the invoice where payment is made by Direct Debit; otherwise payment shall be due 14 days after the invoice date. On the expiry or termination of any Product Agreement, the payment due date shall be earlier of this payment date and the date of termination or expiry of such Product Agreement . Payments are received only on receipt by Virocom Ltd of cleared funds. If it is not clear from the remittance information which invoice is being paid, Virocom Ltd reserves the right to apply the payment to the oldest balance due under this Agreement.
4.7    Dispute: In the event the Customer in good faith reasonably disputes any portion of the Charges contained in an invoice, Customer will pay the undisputed portion of the invoice on the due date in full and submit a documented claim for the disputed amount. As a minimum, such documented claim shall set out the amount in dispute, the reason for such dispute and provide such evidence as shall be reasonably necessary to support the claim. The parties shall negotiate in good faith in an attempt to resolve the dispute, provided that if the dispute cannot be resolved within 30 calendar days of the date of the invoice, either party may refer the case to an independent arbitrator. If the Customer does not submit a documented claim prior to the due date for payment of the invoice, the Customer waives all rights to dispute or query the invoice. All or part of any invoice shall cease to be disputed when the disputed amount is agreed between the parties or is settled in court.
4.8    Set-off and interest: Subject to Clause 4.7, the Customer shall make all payments under this Agreement without any deduction whether by way of set-off, counterclaim or otherwise.  In the event of any late payment, Customer shall be liable to pay interest on the amount of the late payment from the due date to the date of receipt by Virocom Ltd at the annual rate of the higher of 2% above the base rate of HSBC from time to time and the maximum rate permitted by applicable law.  Such interest shall accrue on a daily basis both before and after any judgment.
4.9    Costs of recovery:  The Customer will pay all legal fees and other costs incurred by Virocom Ltd (on a full indemnity basis) in connection with collecting or recovering amounts owed by the Customer under this Agreement or otherwise in connection with the enforcement of any term of this Agreement.  During any period of suspension, charges for Services shall continue to accrue.
4.10    User awareness of data charges: The Customer shall be responsible for making its Users aware of the potential for high data charges resulting from misuse or from data usage whilst outside the UK.

5    FRAUD

The Customer shall be liable for all Charges incurred and other sums owed under this Agreement regardless of the identity of the person using the relevant Services, whether incurred in the course of the Customer’s business or any other use (including fraudulent or improper use) save where such use arises out of the fraudulent actions of Virocom Ltd or its agents.  Customer further acknowledges that in no circumstances shall Virocom Ltd have any liability to the Customer or any third party in respect of any fraud perpetrated by the Customer Group or any third party howsoever occurring, including any access gained through fraudulent access to the Services.  The Customer shall immediately notify Virocom Ltd if it becomes aware of or suspects any fraudulent use of the Services. Where Virocom Ltd is providing maintenance services only, Virocom Ltd shall use reasonable endeavours to secure the Customer’s equipment against fraudulent access, however Virocom Ltd shall not be responsible for any sums due to third party suppliers for any fraudulent mis-use of the Services.

6    SUSPENSION

6.1    Virocom Ltd shall be entitled in its sole discretion to elect to suspend any or all of the Services until further notice in the event that:
6.1.1    Virocom Ltd is entitled to terminate all or any part of this Agreement, without prejudice to Virocom Ltd’s right subsequently to terminate all or any part of this Agreement; or
6.1.2    if an Infrastructure Provider ceases to supply Virocom Ltd or suspends provision of Service Infrastructure to Virocom Ltd for whatever reason; or
6.1.3    if Virocom Ltd is obliged to comply with an order, instruction or request of Government, an emergency service organisation or other competent administrative authority; or
6.1.4    if any amounts due to Virocom Ltd are not paid when due; or
6.1.5    if Virocom Ltd’s equipment for administering the Services fails for whatever reason or maintenance is required on such equipment; or
6.1.6    if there is, or Virocom Ltd reasonably suspects there is, a breach of the Acceptable Use Policy.
6.2    Where Services are suspended, other than as a result of any breach, fault or omission of the Customer, Virocom Ltd shall use its reasonable efforts to procure that recommencement occurs as soon as is practicable and that the Services are only suspended to the extent required in the circumstances.  In the event that Services are suspended as a result of any breach, fault or omission of the Customer, it will pay all Virocom Ltd’s reasonable costs, charges and expenses in connection with any recommencement.

7    AUTHORISED REPRESENTATIVE

Each party shall, as soon as practicable, nominate an individual (or individuals) (‘Authorised Representative(s)’) to manage their relationship under this Agreement.  Purchase Orders placed or purported to be placed by a Customer Authorised Representative will, without prejudice to the validity of any other Purchase Order, be binding on the Customer.  Each party will be entitled to change their Authorised Representatives by written notice to the other.

8    ACCEPTABLE USE POLICY AND FAULTS

8.1    Acceptable Use Policy:  The Customer shall use and ensure that the Services are only used in compliance with the Acceptable Use Policy. The Customer shall provide such assistance as Virocom Ltd reasonably requires in relation to the Acceptable Use Policy and shall indemnify and keep the Virocom Ltd free from and indemnified against all Losses whatsoever arising out of, brought or threatened against the Virocom Ltd by any person in connection with any breach of the Acceptable Use Policy.
8.2    Faults: If Virocom Ltd determines in its reasonable opinion that a defect, fault or impairment to the Services results directly or indirectly from: (i) the negligence, act, omission, or default of the Customer; (ii) the Customer’s breach of this Agreement; (iii) the operation, failure or malfunction of any network, equipment or software owned or controlled by the Customer other than equipment provided by Virocom Ltd and used in accordance with its instructions; or (iv) any third party action in response to an act or omission of the Customer or any person given access to the Services by the Customer, then Virocom Ltd may recover in arrears or advance from the Customer all reasonable costs incurred or to be incurred by it or on its behalf in connection with the remedy of such defect, fault or impairment.

9    OWNERSHIP AND CONTENT

9.1    Intellectual Property: Intellectual Property Rights in all materials (including software) supplied to the Customer in connection with this Agreement shall remain the property of Virocom Ltd or its relevant licensor. The Customer will comply with (and where reasonably required, execute) any agreement required by the owner or licensor of such Intellectual Property Rights. Virocom Ltd and its licensors expressly reserve all Intellectual Property Rights not expressly granted to the Customer under this Agreement.
9.2    Software: Software is licenced to the Customer not sold, and is provided on the terms of the relevant software manufacturer’s licence. The Customer shall sign and return such licence and/or registration card relating to the software by return or as otherwise specified.  If the Customer fails either to communicate its acceptance of the terms of the software licence in accordance with this clause or to pay any relevant licence fee for the software, the Customer’s right to use the software shall immediately cease, and Virocom Ltd may be unable to provide the related Services. Upon the termination or expiry of the relevant Product Agreement, or of the Customer’s right to use the
software in accordance with the previous sentence, the Customer shall remove the software from its computer systems and return all physical copies thereof to Virocom Ltd  and will upon request provide a signed declaration that this clause has been complied with. The Customer shall indemnify Virocom Ltd in respect of all Losses incurred by the Virocom Ltd as a result of a breach by the Customer of this Clause 9.2.
9.3    Numbers and IP Addresses: The Customer shall not, under this Agreement, acquire any right, title or interest in any Numbers or IP Addresses or be entitled to sell or transfer Numbers or IP Addresses without Virocom Ltd’s prior consent (such consent not to be unreasonably withheld.)  Virocom Ltd reserves the right to modify any telephone numbers or IP Addresses allocated or introduce additional codes if this is required for operational or technical reasons or by an Infrastructure Provider or government authority.

10    ALTERATIONS

Virocom Ltd may from time to time without notice change or alter the Service Infrastructure (including Fixed Networks or the Mobile Networks) which it uses and the technical functionality or configuration of the Services provided that no such changes or alterations shall result in any increase in the Charges or any material adverse change to the Services.

11    TERMINATION

11.1        Without prejudice either Party may terminate this agreement on not less than 90 working days notice in writing to expire at the end of minimum term or on each anniversary thereof.
11.1.1    If the customer makes, offers to make or attempts to make any arrangements or composition with creditors or commits any acts which may render the Subscriber liable to proceedings under the Insolvency Act 1986 or where proceedings are commenced against the Subscriber under that Act or any similar act; or
11.1.2    The customer has in the reasonable opinion of Virocom ceased or threatened to cease trade;
11.1.3    If the Customer fails to comply with any of the Terms of this Agreement including failure to pay any charge when due; or
11.1.4    The Customer commits any breach of any provision of the Master Agreement or any other agreement between Virocom and the Subscriber (other than a failure to make payment when due) and, where the breach is capable of remedy, the Subscriber fails to remedy it to Virocom’s reasonable satisfaction within 14 days of Virocom requesting remedy in writing; or
11.1.5    Any licence held by the Service Provider to operate or use the System whether under the Wireless Telegraphy Acts 1949 to 1967 or the Telecommunications Act 1984 or otherwise is revoked or terminated for any reason, or if the operation of the System is terminated or if the provision of the Services by the Service Provider is discontinued for any reason
11.1.6    If the Customer does or allows to be done anything which in Virocom’s or the Service Provider’s opinion will or may have the effect of jeopardising the operation of the Services;
11.2        The Customer shall have the right to terminate the Master Agreement forthwith on notice in writing to Virocom if Virocom commits any breach of any provision of the Master Agreement and where the breach is capable of remedy; Virocom fails to remedy it within 14 days of the Customer requesting remedy in writing.
11.3        Upon the termination of this Agreement the Service Provider shall disconnect the Customer Apparatus from the System and the Network.
11.4        After disconnection of the Customer Apparatus from the System consequent upon termination of this Agreement, the Customer shall pay to Virocom on demand all charges and any interest outstanding at the time of disconnection prior to the final cancellation of the contract including any legal or debt collection fees incurred by Virocom on collecting any payments due.
11.4.1    If the Customer is deemed to be in breach of any of the provisions of this Agreement, or attempts to prematurely terminate this Agreement, Virocom may charge the Customer for the Minimum Term at the RRP of your Tariff, with any associated Minimum Call Spend Commitments and all discounts will be terminated and for any outstanding liabilities incurred.
11.4.2    If termination is within the Minimum Period any Equipment supplied at a subsidised rate will be charged for at the full RRP, as detailed on the Equipment & Service Details form, pro-rata’d by the remaining months.
11.5        The termination of the Master Agreement howsoever arising is without prejudice to the rights duties and liabilities of either party accrued prior to termination.  The clauses in these terms and conditions which expressly or impliedly have effect after termination shall continue to enforceable notwithstanding termination.
11.6        The early termination fee will be is determined in its discretion by the Supplier and notified to the Customer following early termination, not exceeding (a) the Rental for the balance of the Minimum Period that remains outstanding plus (b)a sum equal to the arithmetic average of the Customer’s monthly invoices prior to termination and based upon the last three full calendar month’s invoices, multiplied by the number of complete calendar months left in the Minimum Term after the date of termination (but including the month in which the date of termination falls). For the avoidance of doubt all termination calculation’s will be started from the install / connection of each individual call line number, circuit, licence or any other product description used.
11.7        Upon termination of this Agreement the Customer telephone number shall immediately revert to the Service Provider;
11.7.1    Virocom shall be entitled to charge the Customer Subscribe an Administration Fee of £21.27 per Mobile telephone number for the provision of a PAC (Port Authorisation Code); an Administration Fee of £15.00 per DSL connection for the provision of a MAC (Migration Access Code) and may decline any request to do so until the Subscriber has complied with all its outstanding obligations under the Master Agreement
11.8     For the avoidance of doubt when not in the procession of a Virocom Service Application Form, the use and/or provision of services provided by Virocom Ltd for Services and/or Equipment will be deemed to be under a 36-month agreement starting from the day/date the usage of service commenced.

12    PROVISION OF INFORMATION

12.1    Data Protection: The Customer undertakes that in providing or disclosing any personal information in respect of this Agreement (including the User Details) it has made a proper notification to Office of the Information Commissioner in respect of its use and processing of personal data (as such term is defined in the Data Protection Legislation), that it has collected and transferred such personal information to Virocom Ltd in accordance with the Data Protection Legislation.  In particular, Customer warrants that it has obtained any relevant consent to such collection and transfer and the processing of the personal data by Virocom Ltd to provide the Services.  Virocom Ltd will use such information in accordance with its Data Protection Policy (a copy of which is available on request). The Customer shall indemnify Virocom Ltd in respect of all Losses incurred by the Virocom Ltd as a result of a breach by the Customer of this Clause 12.1.
12.2    General: The Customer will provide such information to Virocom Ltd as is required to provide the Services including any information required in relation to directory information services.
12.3    Accuracy of information: The Customer is solely responsible for ensuring the accuracy of any information it submits to Virocom Ltd in a draft Product Agreement or in a Purchase Order and Virocom Ltd shall not be liable in any way for the consequences of any incorrect information submitted. Customer undertakes to notify Virocom Ltd of any inaccuracy it discovers promptly. Should specified order pre-requisites not be provided by the Customer as part of the Purchase Order then Virocom Ltd cannot be held responsible for the fulfilment of any agreed service levels.

13    WARRANTIES

13.1    Execution: Each party warrants to the other that each accepted Product Agreement and Purchase Order represents a binding commitment on it, and that it has full capacity and authority to enter into and to perform this Agreement.
13.2    Quality of Services: The Customer acknowledges that, save as otherwise agreed in a Product Agreement (or Purchase Order), Virocom Ltd provides the Services (including any Equipment) on a resale basis. Virocom Ltd’s role is to use its reasonable efforts to manage the provision of the Services in its capacity as a telecommunication service provider acting as a reseller and not to manage or run a network or other Service Infrastructure (which is the relevant Infrastructure Provider’s responsibility).  The Customer acknowledges that the Services are provided on an “as is” basis and that it is not possible to offer fault or interruption-free Services.  Virocom Ltd will use its reasonable endeavours to keep and maintain complete and accurate records of data to ensure accurate billing and to operate a helpdesk.
13.3    Users: The Customer shall be responsible for all Users’ compliance with the terms of this Agreement.
13.4    Equipment: Virocom Ltd warrants that it has title to any Equipment it sells to the Customer.
13.5    Interception: Neither Virocom Ltd nor the Infrastructure Providers can guarantee protection of telecommunications against unauthorised interruption or interception by third parties.
13.6    Data loss: In the event of any failure in the equipment, service or power supply then Virocom Ltd shall not be responsible for restoration of Customer data.  The Customer is responsible for taking backups of any configuration settings, user data or dynamic data held within the system to protect themselves in the event of failure.
13.7    No other provisions: Except for the express provisions of this Agreement and to the maximum extent permitted by applicable law Virocom Ltd disclaims and excludes all warranties, terms and other conditions, including but not limited to any warranty, term or other condition of merchantability, satisfactory quality, fitness for a particular purpose or non-infringement, relating to the ownership of the Services or the Equipment or as to price in every case whether implied by statute, common law, custom, collaterally or otherwise.

14    LIMITATION OF LIABILITY

14.1    Neither party limits its Liability for death or personal injury caused by its negligence, or for fraud.
14.2    Subject to Clauses 14.1 Virocom Ltd shall not have any Liability under or in connection with this Agreement:
14.2.1    for any loss or damage other than Direct Loss;
14.2.2    for any loss of profit, goodwill, business, opportunity, revenue, data or potential saving (in every case whether direct or indirect), whether or not such losses were  foreseeable by, or the possibility thereof is or has been brought to the attention of Virocom Ltd.  Nothing in this Agreement shall impose any Liability on Virocom Ltd in respect of non-performance of Services, including delivery of the Equipment, to the extent such non-performance or delivery is due to the Customer’s acts, omissions, negligence or default.
14.3    Other liability: Subject to Clauses 14.1, 14.2 and 14.4, Virocom Ltd’s aggregate Liability under or in connection with any Product Agreement in any Year shall not exceed the Charges paid or payable under such Product Agreement in the first 6 months of that Year.
14.4    Third parties: Subject to Clause 14.1, in no circumstance will Virocom Ltd be liable to any third party including any member of the Customer Group other than the Customer. The Customer shall be entitled to treat Losses suffered by other members of the Customer Group as Losses suffered by the Customer itself, but shall ensure that no other member of the Customer Group shall make any claim or demand against any member of the Virocom Ltd or against Virocom Ltd itself.

15    FORCE MAJEURE

15.1    Neither party shall be liable for any delay or failure to carry out its obligations under any Product Agreement caused by Force Majeure provided that it gives notice of the occurrence of the Force Majeure relied upon to the other party and it uses its reasonable endeavours to remove or avoid such Force Majeure as promptly as practicable.  If any Force Majeure event is relied on for longer than 60 calendar days by either party the other party shall be entitled to terminate that part of the Product Agreement in relation to which Force Majeure has occurred forthwith on written notice.

16    CHANGES TO THE AGREEMENT

16.1    Virocom Ltd may change their Terms and Conditions and / or any Product Schedule at any time by giving notice of such change the Virocom Ltd website.  Any change which is required to comply with any Legislation, regulation or code of practice (on Virocom Ltd, an Infrastructure Provider or otherwise) or as a result of a direction by an Infrastructure Provider or is made to the Data Protection Policy or Acceptable Use Policy, will not give the Customer a right to terminate this Agreement or any part of it. in the event of any change which (i) is made for a reason other than that set out in the previous sentence or (ii) is a change to the Charges not referred to in clause 4.3 and operates to the material detriment of the Customer, the Customer shall have the right to terminate the part of the Services to which the change relates by giving 30 calendar days’ written notice, provided that such notice is given within 30 calendar days of Virocom Ltd’s notice of the change.

17    MISCELLANEOUS

17.1    Confidentiality:  Virocom Ltd and the Customer each agree to keep confidential and use only for the purpose of exercising and performing their respective rights and obligations under this Agreement all plans, trade secrets, business and other confidential information that is disclosed or made available by one party to the other, and including the existence and terms of this Agreement (“Confidential Information”). Each of Virocom Ltd and the Customer undertakes not to disclose to any third party such Confidential Information without the express written consent of the other. No obligation of confidentiality under this Clause 17.1 shall apply to Confidential Information which is: (i) already in the possession of the disclosing party without obligation of confidentiality owed to the other; or (ii) has been developed by the disclosing party independently without access to any of the relevant Confidential Information; or (iii) the disclosing party rightfully receives free of any obligation of confidentiality from a third party; or (iv) enters the public domain other than by reason of any breach of this Agreement; or (v) is required by any competent regulatory authority or by an
Infrastructure Provider. However, Virocom Ltd shall have the right to publicise that the Customer is a party to this Agreement in any advertising or promotion.
17.2    Notices: Save as provided otherwise, any notices required or permitted hereunder will be given to the appropriate party at the address specified in the attached signature page or at such other address as the party may specify in writing.  Such notice shall be deemed given upon personal delivery to the appropriate address or 3 (three) calendar days after the date of mailing if sent by certified or registered mail.  Virocom Ltd shall be entitled to give notice as to any matter (except termination of the whole of this Agreement) by email or by fax (which notice shall be deemed given when sent).
17.3    Assignment:  The Customer may not assign, transfer, delegate or otherwise deal with its rights or obligations under this Agreement without the prior written consent of Virocom Ltd (which consent may be given subject to such conditions as Virocom Ltd considers appropriate).  Virocom Ltd may assign or delegate all or any of its rights or obligations under this Agreement at any time without notice and may appoint a third party to collect the Charges.
17.4    Entire agreement: This Agreement sets out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter.  Unless otherwise expressly agreed in writing this Agreement applies in place of and prevails over any terms or conditions contained in or referred to in correspondence or elsewhere or implied by trade custom or course of dealing. In entering into this Agreement and each Product Agreement and/or Purchase Order each party acknowledges and agrees that it has not relied on any representations (whether made innocently or negligently) made by the other.  Any such representations are excluded.  The parties hereby agree that their only rights and remedies arising out of or in connection with any misrepresentation shall be for breach of contract. Nothing in the clause shall limit or exclude any Liability for fraud or fraudulent misrepresentation.
17.5    Severance: If any provision of this Agreement is determined to be illegal or unenforceable by any court of competent jurisdiction it shall be deemed to have been deleted without affecting the remaining provisions.
17.6    Partnership etc: Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture or agency between the parties and, save as to the extent required by Virocom Ltd to give effect to a Product Agreement, neither party shall have any authority or power to bind, contract in the name of or create a liability for or against the other.
17.7    Third party rights: No provision of this Agreement shall be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
17.8    Waiver: No failure or delay by a party in exercising its rights or remedies shall operate as a waiver unless made by written notice.  No single or partial exercise of any right or remedy of a party shall preclude any other or further exercise of that or any other right or remedy.
17.9    Arbitration: Virocom Ltd may implement an arbitration or similar complaints procedure as required by the applicable Infrastructure Provider(s), Legislation or applicable code of practice.   The Customer and Virocom Ltd will comply with such procedure(s) as varied from time to time from the date the Customer is notified of the implementation of the procedure (or its variation) in respect of all applicable complaints.  Further details of the dispute resolution process (if any) are available from Virocom Ltd on request in writing.
17.10    Law: This Agreement shall be governed and construed in accordance with the laws of England.  The parties irrevocably submit to the exclusive jurisdiction of the English courts in respect of any matter, claim or dispute arising under, out of or in connection with this Agreement (including as to its validity) or the legal relationships established by this Agreement.
17.11    Trial services or promotional offers: Virocom Ltd may from time to time supply trial services and/or promotional offers (“Offers”) to some or all of its customers. Such offers may be subject to additional terms and conditions notified by Virocom Ltd to its customers. Unless otherwise stated Virocom Ltd shall not incur any liability under the Agreement in relation to such Offers. Promotional terms and conditions may require a variation to the Agreement in which case the Customer shall be deemed to have accepted in writing such a variation to the Agreement on acceptance of the Offer. Unless otherwise stated in the promotional terms and conditions an Offer may be amended or withdrawn by Virocom Ltd (in relation to some or all of its customers) at any time and without notice.  For the avoidance of doubt Virocom Ltd is not obliged to include the Customer in any Offers it provides.  Liability for excessive charges will be levied against the Customer and any minimum terms exceeded will result in any trial equipment being charged for in full.

18    INTERPRETATION

18.1    References to:
18.1.1    Recitals, Clauses, Schedules and Annexes are to recitals, Clauses and sub-Clauses of and schedules and annexes to this Agreement;
18.1.2 A Product Agreement includes any Product Agreement form, these Terms and Conditions, any Product Schedule, other Schedules and Annexes and any other documents explicitly incorporated by reference;
18.1.3 The singular include the plural and vice versa and use of any one gender includes all genders;
18.1.4 A person include a natural person, company, corporation, firm, partnership, co-operative company, unincorporated or incorporated association, government, state, statutory authority, foundation and trust; and
18.1.5 The words “include”, “includes”, “including”, “in particular” or any similar words or any general words introduced by the word “other” do not limit the words preceding or following.
18.2    Any reference to any Legislation shall be interpreted as referring to such Legislation as amended and in force from time to time and/or which replaces, re-enacts or consolidates such Legislation.
18.3    Headings (including clause headings) are for convenience only and shall not affect interpretation.
Acceptable Use Policy
This document sets out the Acceptable Use Policy between Virocom Ltd defined as the “Virocom Ltd in Virocom Ltd’s standard Terms and Conditions  (“Virocom Ltd”) and you, the Customer.  Capitalised terms in this Acceptable Use Policy shall have the same meaning as set out in Virocom Ltd’s standard Terms and Conditions.
1.    The Customer shall only use the Services in accordance with such conditions as Virocom Ltd may notify it in writing from time to time and in accordance with the relevant provisions of any legislation, authorisation or licence applicable to the Infrastructure Provider providing the relevant service or any direction, code of practice or regulation of any competent regulatory authority.  Virocom Ltd may from time to time vary the technical and/or operational procedures for use of the Services.
2.    The Customer shall not make abusive, threatening or nuisance calls to our contact centre, agents or representatives or to us or use any Equipment for this purpose.
3.    The Customer must take reasonable care to protect any Equipment and SIM at all times until such time as title transfers to the Customer; any negligence may result in the original charge being levied in full.
4.    Virocom Ltd may allocate the Customer a password to enable use of the service or for access to the Equipment. The Customer must keep such passwords safe and confidential and notify Virocom Ltd immediately if any third party becomes aware of it.  Virocom Ltd reserves the right to change the password without notice. The Customer must follow reasonable instructions given by Virocom Ltd from time to time regarding the use of mobile devices other equipment and services.
5.    We shall have no liability or responsibility for the contents of any communications transmitted via the Services and the Customer, will hold Virocom Ltd harmless from any and all claims related to such content.
6.    The Customer shall not use any of Virocom Ltd’s services, a mobile device or other equipment used in connection with Virocom Ltd’s services:
(a) As a means of communication for a purpose which is specifically prohibited or unlawful;
(b) For any communication which is or is intended to be a hoax call to emergency services or is of a defamatory, indecent, malicious, immoral, fraudulent, offensive or abusive or of an obscene or menacing character;
(c) To violate or infringe any rights of or to cause unwarranted inconvenience or anxiety to any third party;
(d) In such a way as to constitute a violation of any laws or regulations of any other country;
(e) To make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scam such as “pyramid schemes” and “chain letters”;
(f) To add, remove or modify identifying network header information in an effort to deceive or mislead. Attempting to impersonate any person by using forged headers or other identifying information is prohibited.  The use of anonymous remailers or nicknames does not constitute impersonation. Using deliberately misleading headers (“munging” headers) in news postings in order to avoid spam email address collectors is allowed;
(g) To transmit any unsolicited commercial email or unsolicited bulk email. Activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk email whether or not that email is commercial in nature are prohibited;
(h) To access, or attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Virocom Ltd’s or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data;
(i) To transmit any material (by email, uploading, posting, or otherwise) that infringes any Intellectual Property Rights of any third party, including, but not limited to, the unauthorised copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorised transmittal of copyrighted software;
(j) To collect, or attempt to collect, personal information about third parties without their knowledge or consent;
(k) For any activity which adversely affects the ability of other people or systems to use Virocom Ltd’s services or the Internet. This includes “denial of service” (DoS) attacks against another network host or individual user. Interference with or disruption of other network users, network services or network equipment is prohibited.  It is the Customer’s responsibility to ensure that their network is configured in a secure manner.  A Customer may not, through action or inaction, allow others to use their network for illegal or inappropriate actions.  A Customer may not permit their network, through action or inaction, to be configured in such a way that gives a third party the capability to use their network in an illegal or inappropriate manner. Virocom Ltd reserves the right to check that Customers using Virocom Ltd Services have not left their networks open to abuse by smtp relay checking and sending email through the Customer mail servers; or
(l) To use a personal account for high volume or commercial use. The Services are intended for active use of email. Customers may stay connected so long as they are actively using that connection for the above purpose. Customers may not use the Services on a standby or inactive basis in order to maintain a connection. Pinging is expressly prohibited. Virocom Ltd maintains the right to terminate any Customer connection following any extended period of inactivity as determined by Virocom Ltd.
7.    A reference to the Customer includes any person using a service in connection with or as a result of any agreement with Virocom Ltd.