Terms & Conditions

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1. INTERPRETATION

1. The definitions and rules of interpretation in this condition apply in these terms and conditions.

ACCOUNT APPLICATION: the table of commercial terms at the head of this document.

ADVANCE: the payment on account required from time to time by the Customer to Packnet Limited, as stipulated in the Account Application or in accordance with condition 8.4 below.

CONTRACT: the Customer’s purchase order (as accepted in accordance with condition 3), the Account Application and these Terms and Conditions (as amended from time to time in accordance with its terms).

CUSTOMER: the person, firm or company who purchases Services from Packnet Limited.

CUSTOMER CONTENT:  all text, information, data, software, executable code, images, audio or video or other material, in whatever medium or form, inputted by the Customer (or any customer of the Customer) (or Packnet Limited on the Customer’s behalf) for the purpose of using, developing, maintaining or (to the extent authorised pursuant to the Contract) exploiting the Platform.

DELIVERABLES: all 5products and materials developed by Packnet Limited in relation to the Services and/or provided or otherwise made available by Packnet Limited to the Customer in any media, including, without limitation, Equipment, manuals, computer programs, data, diagrams, reports, documentation, specifications (including drafts) and the Platform.

EQUIPMENT: any equipment set out in the Contract to be purchased by the Customer from Packnet Limited including any part or parts of it and any other ancillary goods, cables and materials delivered by or on behalf of Packnet Limited to the Customer’s premises (or such other Location as agreed in writing between the parties).

GUARANTEE: any guarantee entered into between a director and/or shareholder of the Customer (Guarantor) pursuant to which the Guarantor shall provide a guarantee to Packnet Limited in respect of the Customer’s obligations pursuant to the Contract.

INTELLECTUAL PROPERTY RIGHTS: 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 which subsist or will subsist now or at any time in the future in any part of the world.

PLATFORM: the online provisioning and management software platform known as “Metis” (including any updates thereto) which may be made available by Packnet Limited to the Customer from time to time for use in connection with the Services.

PRE-EXISTING MATERIALS: materials which existed before the commencement of provision by Packnet Limited of the Services.

PACKNET LIMITED: Packnet Limited, a company registered in England and Wales with company number 04920552, the registered office of which is at Third Floor, John Swift Building, 19 Mason Street, Manchester, M4 5FT.

RATE CARD: Packnet Limited’s current list of prices for its services as set out on the secure website to which the Customer is provided access. The prices will also be circulated by email (or other agreed contact method) in advance of their applicability.

RESELLER:  any Customer who enters this Contract with the intention of re-selling or otherwise making available the Solution to its own customers in its own name.

SERVICES: the services to be provided by Packnet Limited under the Contract as particularised in the purchase order, Account Application and in any Supplementary Order.

SOLUTION: the Equipment and the Platform (if applicable).

SUPPLEMENTARY ORDER: any purchase order received by Packnet Limited from the Customer opting to purchase (on the terms set out in this document and at the rate set out in the then-current Rate Card) services additional to those particularised in the Account Application and which has been accepted by Packnet Limited in accordance with condition 3 of this Contract.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

2. Headings do not affect the interpretation of these conditions.

3. Reference to a notice in writing does not include email unless so provided.

4. References to conditions are to conditions of this Contract.

2. APPLICATION OF CONDITIONS

1. These conditions shall:

(a) apply to and be incorporated in the Contract; and

(b) 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. Any variation of the Contract shall be in writing and signed by or on behalf of a duly authorised representative of each of the parties.

3. EFFECT OF PURCHASE ORDER

1. The Customer’s purchase order constitutes an offer by the Customer to purchase the Equipment and Services specified in it on these conditions; accordingly, the execution and return of the acknowledgement copy of the purchase order form by Packnet Limited, or Packnet Limited’s commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Equipment and Services on these conditions. A binding contract shall not come into existence between Packnet Limited and the Customer unless and until such written acknowledgment is issued by Packnet Limited or Packnet Limited delivers the Equipment or makes available to the Customer the Platform (whichever is the earlier). The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.

2. No order which has been acknowledged by Packnet Limited may be cancelled by the Customer, except with the agreement in writing of Packnet Limited and provided that the Customer indemnifies Packnet Limited in full against all reasonable costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Packnet Limited as a result of cancellation.

4. SERVICE

1. 1. The Customer may make calls to emergency organisations on numbers “112” and “999” free of charge using the Solution. Packnet Limited shall use its reasonable endeavours (to the extent technically feasible) to procure that the geographical position of the Equipment used to make such call is available to the emergency organisations.

   2. Packnet Limited shall assist emergency organisations and government bodies in emergency planning by provision or rapid restoration of communication services in a disaster situation (for example, any major incident having significant effect on the general public).

   3. The telephone number or numbers allocated to the Customer shall not belong to the Customer. Packnet Limited shall cooperate with the transfer of numbers to another service provider in accordance with applicable regulatory requirements. Subject thereto, on request by the Customer, Customer’s telephone number(s) shall be transferred to another service provider notified to Packnet Limited subject to the Customer having paid in full all amounts due to Packnet Limited and the Customer providing all information and assistance to Packnet Limited to enable it to carry out such transfer.

   4. Packnet Limited may be obliged (upon reasonable notice to the Customer):

1. to alter the Customer’s telephone number(s) or any other name, code or number associated with the Services where requested to do so by a governmental or regulatory body;

2. temporarily to suspend the Services (or any part of them) for operational reasons or in an emergency or for reasons of security; and/or

3. to bar certain numbers from the Services on a temporary or permanent basis in order to prevent fraud or in circumstances where Packnet Limited, acting reasonably deems that it may suffer a direct loss from access to such numbers.

5. 5. Packnet Limited or its agents may record or monitor some telephone calls, emails and any other communications between itself (or its agents) and the Customer for training and quality control and for Packnet Limited’s lawful business purposes. Packnet Limited, or its authorised agent, will notify you where this is the case.

   6. Packnet Limited may at its discretion and without notice bar the Customer’s numbers from making calls (other than to the emergency services numbers set out at condition 4.1 above) if:

1. the Customer is in breach of condition 5.4 below;

2. Packnet Limited has reasonable cause to suspect fraudulent and/or otherwise unlawful use of the Solution and/or

3. any of the Customer’s staff or representatives is persistently abusive, makes threats, repeatedly causes a nuisance or annoyance or otherwise acts illegally towards Packnet Limited’s staff, representatives or property.

4. in each of the cases above, and any others that might arise during the term of this Contract, Packnet Limited will make commercially reasonable efforts to notify Customer prior to making any changes to, or suspending Customer’s service.

7. 7. The Customer will be obliged to pay an unbarring charge and, if applicable, a re-connection charge (to such amount as shall be notified by Packnet Limited to the Customer at the relevant time) if the Services are reconnected after being temporarily barred or disconnected in accordance with condition 4.4 of this Contract.

   8. Use of the Platform (found at the url https://voip.mymetis.co.uk) shall be subject to these Terms and Conditions. All services that are provisioned via the Platform and all invoices raised to the reseller, channel and customers are subject to these Terms and Conditions.

   9. To the extent that any part of the Solution is delivered by any third party other than Packnet Limited’s authorised consultants or sub-contractors, any non-delivery or non-performance of the Solution shall not give the Customer any right to delay any payment to Packnet Limited or to make any claim whatsoever against Packnet Limited.

   10. Packnet Limited shall not be liable for any interruptions or outages to the Solution  arising directly or indirectly from:

       1. 1. interruptions to the flow of data to or from the Internet;

          2. changes, updates or repairs to the network or software which the Services use as a platform, subject to Packnet Limited using its reasonable endeavours to minimise such interruptions/outages that may be reasonably expected to be caused by such change;

          3. the effects of the failure or interruption of services or equipment provided by third parties;

          4. any actions or omissions of the Customer or any third parties;

          5. any problems with equipment belonging to the Customer and/or any third party equipment; and/or

          6. any interruptions arising (whether directly or indirectly) from any requests made by the Customer.

   11. The Customer’s use of the Solution shall be in accordance with all applicable laws and regulations.

5. CUSTOMERS OBLIGATIONS

1. 1. The Customer shall:

1. co-operate in a timely manner with Packnet Limited in all matters relating to the Services;

2. provide in a timely manner such information, as it relates to providing the service to the Customer, as Packnet Limited may request from time to time, and ensure that such information is accurate in all material respects;

3. provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities as are required by Packnet Limited from time to time;

4. where equipment is provided by Packnet Limited be responsible (at its own cost) for preparing the relevant premises for the supply of the Services and the installation of any Equipment and for providing a safe work environment for the staff or other representatives of Packnet Limited visiting the Customer’s premises; and

5. ensure that, at all times, it has all necessary and/or desirable infrastructure in place to enable the full and proper operation of the Solution.

2. 2. If Packnet Limited’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall be liable to pay to Packnet Limited on demand all reasonable costs, charges or losses sustained or incurred by Packnet Limited (including, any direct, indirect or consequential losses ,loss or damage to property, injury to or death of any person, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) arising out of or in connection with such act or omission of the Customer), subject to Packnet Limited confirming such costs, charges and losses to the Customer in writing. Furthermore, the Customer shall have no recourse (whether under this Contract or otherwise) in respect of Packnet Limited’s failure or delay in performing such obligations.

   3. The Customer shall not, without the prior written consent of Packnet Limited, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from Packnet Limited or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Packnet Limited.  For the avoidance of doubt, any breach of this condition 5.3 shall constitute a ‘material breach’ of this Contract for the purpose of condition 18.2 (a) and Packnet Limited shall be entitled to terminate this Contract.

   4. The Customer shall not use the Solution or permit any other person to use the Solution:

1. fraudulently, in commission of or in connection with a criminal offence, in breach of any law or statutory duty;

2. to make a call or send a message or any other form of transmission or to take pictures or video or send, upload, download, use or re-use any material, which is offensive, abusive, indecent, inciting racial, religious or ethnic hatred or in breach of the intellectual property rights of any third party, defamatory, obscene or menacing, a nuisance or a hoax or in breach of any rights or privacy or otherwise unlawful;

3. to cause annoyance, inconvenience or needless anxiety, as set out in the Communications Act 2003 (as amended, extended or re-enacted from time to time);

4. to send automated unsolicited and/or unlawful communications and the Customer agrees to indemnify Packnet Limited against any liabilities, losses, damages, costs or expenses suffered or incurred through any breach of this term;

5. to (knowingly or unknowingly) breach the rights (including Intellectual Property Rights) of any third party; and/or

6. in any way which exceeds the limits of bandwidth and utilisation notified to the Customer from time to time or, if no such limits are notified, a reasonable fair usage.

6. QUANTITY AND DESCRIPTION OF EQUIPMENT

1. 1. The quantity and description of the Equipment shall be as set out in Packnet Limited’s acknowledgement of order or (if there is no acknowledgment of order) quotation and any product specification document provided.

   2. All samples, drawings, descriptive matter, specifications and advertising issued by Packnet Limited, and any descriptions or illustrations contained in Packnet Limited’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.

   3. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Packnet Limited shall be subject to correction without any liability on the part of Packnet Limited; so long as Packnet Limited notifies Customer of such error within fifteen (15) days of discovery of such error. To the extent that such error has directly incited the Customer to enter, into any Contract with Packnet Limited, the Customer may, without penalty, cancel any order resulting from such error.

   4. Packnet Limited reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer’s specification, which do not materially affect their quality or performance.

   5. Where Packnet Limited is not the manufacturer of the Equipment, Packnet Limited provides no warranty or guarantee of its own to the Customer but shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to Packnet Limited and such third party warranty shall be the Customer’s sole and exclusive remedy in respect of such Equipment.

   6. After the manufacturer’s warranty period (if any) expires there shall be no warranty or guarantee in respect of the Equipment unless the Customer has purchased extended warranty cover (where available).  Unless agreed otherwise in writing, all costs of uninstalling and/or returning Equipment for a warranty claim shall be the Customer’s responsibility.

   7. Packnet Limited’s employees, contractors and agents are not authorised to make any contractually binding representations concerning the Equipment. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not been confirmed in writing by an authorised officer of Packnet Limited. However, nothing in these conditions limits Packnet Limited’s liability for fraudulent misrepresentation.

   8. Any advice, instruction or recommendation given by Packnet Limited or its employees, contractors or agents to the Customer or its employees, contractors or agents about the storage, application or use of the Equipment, which is not confirmed in writing by Packnet Limited, is followed or acted on entirely at the Customer’s own risk.

7. CHANGE CONTROL

1. 1. If either party wishes to change the scope, extent or execution of the Services, it shall submit details of the requested change to the authorised representative of the other in writing. If that change is a request by the Customer for additional Services and/or Equipment, the Customer shall submit a Supplementary Order and the cost of provision of such Services and/or Equipment shall be as stipulated in the then-current Rate Card or as otherwise agreed in writing.

   2. If either party requests a change to the scope, extent or execution of the Services (other than a change where a Supplementary Order would be required in accordance with condition 7.1), Packnet Limited shall, within a reasonable time, provide in writing to the Customer: (a) whether it is able to implement the change; (b) if so, the likely time required to implement the change; (c) any estimated variations to Packnet Limited’s charges or payment terms arising from the change; (d) the likely effect of the change on any delivery dates or deadlines; and (e) any other impact (or likely impact) of the change on the terms of the Contract.

   3. If Packnet Limited requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it; however, if such change adversely affects the Customer’s use of the Services, save where such change is required as a result of any change in applicable law or regulation or any other factor beyond Packnet Limited’s reasonable control, Customer may cancel this Contract and all associated purchase orders, without penalty.

   4. If the Customer wishes Packnet Limited to proceed with the change, Packnet Limited has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges (and payment terms), particulars set out in the Account Application and/or any relevant Supplementary Orders and any other relevant terms of the Contract to take account of the change and this Contract shall be deemed amended accordingly.

8. CHARGES AND PAYMENT

1. 1. The price for the Equipment and (per month or per year as provided) for the Platform shall be the amount set out in the current Rate Card or as otherwise agreed in writing. Prior to the provision of any Services to the Customer Packnet Limited may, in its absolute discretion, require the Customer to establish (and maintain for such time as the Services are provided) a direct debit in respect of the Charges due. Each month, Packnet Limited shall invoice the Customer for the charges that are then payable, (as set out in information made available from time to time on the Plaform) together with VAT, and interest where appropriate, calculated as provided in these conditions.

   2. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other taxes, charges and duties unless agreed otherwise in writing.

   3. The total price set out in such invoice shall be paid to Packnet Limited (without deduction or set-off) in pounds sterling in full and cleared funds within 30 days of the date of Packnet Limited’s invoice to the bank account nominated for this purpose from time to time. Should the Customer have any dispute or query in relation to any Packnet Limited invoice the Customer shall notify Packnet Limited thereof in writing within 30 days of receipt of the said invoice, failing which the Customer shall be deemed to have accepted the accuracy of the invoice and its liability for the full charges set out therein. Additionally, Packnet Limited may not bill Customer greater than 60 days in arrears for charges not originally billed for in the billing cycle.

   4. Unless the Account Application provides that the level of the Advance is set at nil, the Customer shall pay the Advance before Packnet Limited provides any Services or Equipment and Packnet Limited shall not be in default of any of its obligations pursuant to this Contract to the extent that such payment has not been received. In addition to paying for Services and Equipment in respect of the period covered by the invoice, the Customer upon payment of every invoice (until the Contract has been duly terminated in accordance with these conditions) shall also restore the Advance held by Packnet Limited to the level stipulated in either the Account Application or Packnet Limited’s notice pursuant to condition 8.6 below.

   5. Packnet Limited may, prior to carrying out any of its obligations pursuant to this Contract, require a director, shareholder or other representative of the Customer to enter into a Guarantee.

   6. Packnet Limited may at any time, in direct result of Customer’s negative payment history or detrimental (or anticipated detrimental) change in Customer’s credit profile, by service of a notice in writing (including email) on the Customer stipulate that (a) a Guarantee (or further Guarantee) is required to procure the ongoing provision of the Services; (b) the payment required by way of Advance shall be increased forthwith to the full cost for one month of each of the services requested by the Customer plus the full unpaid balance of the cost of any Equipment (at the costs set out in the Rate Card); and /or (b) the provision or the continuation of Services is conditional upon the Customer authorising and maintaining a direct debit authority at its bank for the payment of charges and Advances.

   7. The Customer may at any time by service of a notice in writing (including email) on Packnet Limited opt to convert any of its Services to a prepaid basis, in which event from the beginning of the period covered by the next invoice the prepaid rates on the Rate Card shall apply provided that the Advance paid to Packnet Limited in respect of that Service has been increased to the level stipulated on the Rate Card.

   8. Packnet Limited may at any time by service on the Customer of at least 30 days’ notice in writing (including email) revise or replace the current Rate Card in the event that its own costs of providing the Service are increased. In the event that the Customer does not accept such change it shall notify Packnet Limited within 14 days of receipt of such notice in writing and the parties shall negotiate in good faith to agree the applicable charges. In the event that no such agreement can be reached, the Customer may terminate the Contract by providing 30 days’ notice in writing.

   9. Without prejudice to any other right or remedy that Packnet Limited may have, if the Customer fails to pay Packnet Limited all undisputed amounts due in accordance with these conditions on the due date Packnet Limited may: (a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. This does not affect Packnet Limited’s right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and (b) decline to cooperate with the porting of numbers to another carrier; and/or (c) suspend the provision of all Services until payment has been received in full.

   10. Time for payment shall be of the essence of the Contract.

   11. Packnet Limited may (at any time) apply any Advances received from the Customer against any liability of the Customer to Packnet Limited.

   12. All undisputed payments payable to Packnet Limited under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

   13. Packnet Limited may, without prejudice to any other rights it may have, set off any liability of the Customer to Packnet Limited against any liability of Packnet Limited to the Customer.

   14. For the avoidance of doubt, where the Customer is entering into this Contract as a Reseller, the Customer remains solely responsible for payment in accordance with this Contract and the Customer’s obligations to make payment pursuant to this condition 8 shall not be affected in any way by any failure or delay by the Customer’s own customer in making payment.

   15. In the event that the direct debit required by Packnet Limited pursuant to condition 8.1 is cancelled for any reason, Packnet Limited may (without any liability to the Customer whatsoever) suspend the provision of the Services until such time as a direct debit (in a form acceptable to Packnet Limited) has been established.

9. CREDIT CHECKS AND DISCLOSURE

1. 1. The Customer agrees and hereby consents to Packnet Limited carrying out a search of the files of credit reference agencies and acknowledges that such agencies will keep a record of that search. Packnet Limited may also carry out identity and anti-fraud checks with fraud prevention agencies. Packnet Limited and other organisations may access and use from other countries the information recorded by fraud prevention agencies. If the Customer gives Packnet Limited false or inaccurate information and Packnet Limited identifies or suspects fraud, Packnet Limited will record this.

   2. Relevant details of how Customer conducts its account may be disclosed (in accordance with all applicable laws) to credit reference agencies, law enforcement agencies and other telecommunications companies. The information may be used by Packnet Limited and other parties in assessing applications for and making decisions about credit, credit-related services or other facilities and insurance and for debt tracing, debt recovery, credit management and crime, fraud and money laundering detection and prevention.

   3. The Customer authorises Packnet Limited to use and disclose, in the UK and abroad (both inside and outside the EEA), information about the Customer and the Customer’s use of the Services, disclosure should be permitted only if strictly required to comply with applicable law, including phone numbers and/or email addresses of calls, location data (where available) in respect of mobile phones, texts and other communications (“Communications“) made and received by Customer and the date, duration, time and cost of such Communications, and information about how the Customer conducts the Customer’s account for the purposes of operating the Customer’s account and providing Customer with the Services, for credit control purposes, fraud and crime detection and prevention and the investigation and prevention of civil offences or as required for reasons of national security or under law to Packnet Limited’s associated companies, partners or agents, any telecommunications company, debt collection agency or credit reference agency and fraud prevention agency or emergency services or governmental agency and other users of these agencies who may use this information for the same purposes as Packnet Limited. The Customer can obtain further details of Packnet Limited’s intended use of such data from Packnet Limited’s public registration held by the Information Commissioner.

   4. The Customer may request details of the credit reference or the fraud prevention agencies from whom Packnet Limited obtains and with whom Packnet Limited records and/or shares information about the Customer or a copy of the information Packnet Limited holds about the Customer. Packnet Limited may (to the extent allowed by applicable law) charge a fee for the provision of such details or information.

10. DELIVERY OF EQUIPMENT, SERVICE AND ACCEPTANCE

1. 1. Packnet Limited shall use its reasonable endeavours to deliver the Equipment and/or Services to the location set out in the Customer’s purchase order (or otherwise agreed in writing between the parties) on the date or dates specified in Packnet Limited’s acknowledgement of order (or, if none, the date set out in the Customer’s purchase order), but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and/or any Services and Packnet Limited is not liable for any delay in delivery, however caused.

   2. The Equipment may be delivered by Packnet Limited in advance of the quoted delivery date on giving reasonable notice to the Customer and the Customer shall be required to accept such delivery.

   3. Unless agreed otherwise, delivery shall be made during normal business hours (excluding bank or public holidays). Packnet Limited may levy additional charges for any deliveries made outside such hours at the Customer’s request.

   4. The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment. If Packnet Limited is prevented from carrying out delivery or installation on the specified date (and at the specified time) because no such preparation has been carried out, Packnet Limited may levy additional charges to recover its loss arising from this event, so long as such charges are reasonable and notified to Customer in advance.

   5. The Customer shall be deemed to have accepted the Equipment when the Customer has had 5 days to inspect it after delivery and has not exercised in writing its right of rejection in accordance with condition 6 above.

   6. Packnet Limited shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to Packnet Limited (or its carrier, if applicable) within 5 days of delivery of the Equipment and that the Equipment has been handled in accordance with Packnet Limited’s stipulations. Any remedy under this condition 10.6 shall be limited, at the option of Packnet Limited, to the replacement or repair of any Equipment which is proven to Packnet Limited’s satisfaction to have been lost or damaged in transit.

   7. Packnet Limited may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

11. RISK AND PROPERTY

1. 1. The Equipment shall be at the risk of Packnet Limited until delivery to the Customer at the place of delivery specified in Packnet Limited’s acknowledgement of order (or, if there is no such specification, the Customer’s purchase order). Packnet Limited shall off-load the Equipment at the Customer’s risk.

   2. Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including off-loading), or when Packnet Limited has received in full in cleared funds all sums due to it in respect of: (a) the Equipment; and (b) all other sums which are or which may become due to Packnet Limited from the Customer on any account.

   3. Until ownership of the Equipment has passed to the Customer under condition 11.2, the Customer shall: (a) hold the Equipment on a fiduciary basis as Packnet Limited’s bailee; (b) store the Equipment (at no cost to Packnet Limited) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as Packnet Limited’s property; (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and (d) keep the Equipment insured on Packnet Limited’s behalf for its full price against all risks to the reasonable satisfaction of Packnet Limited, and hold the proceeds of such insurance on trust for Packnet Limited and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

   4. The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any undisputed payment to Packnet Limited on the due date.

   5. Upon prior advance notice during normal business hours to the Customer, Customer shall grant Packnet Limited, its agents, employees and/or other authorised representatives access to enter any premises where the Equipment is or may be stored in order to inspect it. In the case where the Customer’s right to possession has terminated, Packnet Limited shall be allowed to remove such equipment at any time, after a reasonable attempt to notify Customer in advance and a right of entry to any premises where such Equipment is stored is granted for this purpose. All costs incurred by Packnet Limited in repossessing the Equipment shall be borne by the Customer, and payable in accordance with the terms of this Contract.

   6. On termination of the Contract for any reason, Packnet Limited’s (but not the Customer’s) rights in this condition 11 shall remain in effect.

12. SOFTWARE LICENCE

1. 1. If Packnet Limited refers to the making available of the Platform (or any part of it) to the Customer in the acknowledgment of order (or, if there is no such acknowledgment, the Customer refers to such in their purchase order (or any Supplementary Order)), the price of the Services includes the (monthly or annual, as applicable) licence fee for the Customer’s right to use the Platform.

   2. The making available of the Platform (or any of it) in accordance with the terms of this Contract may be dependent upon a third party software licence. If so (a) such third party licence terms comprise the Customer’s sole and entire rights and remedies in respect of the said software; and (b) if the Customer does not accept such third party licence terms relating to that software, Packnet Limited shall have no liability for any failure to provide to the Customer the Services requiring the use of the said software, but in any event shall provide to Customer any license terms prior to delivery of such Services and before any payment obligations accrue.

   3. If the Customer is provided with any operating system software licence in respect of the Platform (or any part of it), the Customer shall sign and return it to Packnet Limited within seven days of installation of the software, unless the licence has been supplied on a “shrink-wrap” or “click-wrap” basis.

   4. If no software licence has been provided to the Customer in respect of the Platform, the Customer hereby accepts a non-exclusive, non-transferable licence (without the right to grant sub-licences unless agreed otherwise in writing) for the agreed number of users to use the Platform worldwide on the terms of this Contract and subject to (without limitation) the following conditions (and any other conditions agreed in writing between the parties from time to time): (a) the Customer shall not copy (except to the extent permissible under applicable law or for normal operation of the Equipment), reproduce, translate, adapt, vary or modify the Platform (or any part of it), nor communicate it to any third party, without Packnet Limited’s prior written consent; (b) the Customer shall not use the Platform in relation to or in connection with any equipment other than the Equipment, unless agreed in writing by Packnet Limited, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in the  Platform; (c) such licence shall be terminable by either party on 30 days’ written notice and shall terminate automatically in the event of termination of this Contract (for whatever reason); and (d) on or before the expiry of this licence, the Customer shall return to Packnet Limited all copies of the software comprising the Platform in its possession and/or delete such software from all devices on which it is installed (at Packnet Limited’s discretion).

   5. In the event that the Customer wishes to vary the number of agreed users granted access to the Platform pursuant to the licence granted in accordance with this condition 12, it shall notify Packnet Limited in writing and Packnet Limited may (in its absolute discretion) agree to vary such number of users (on terms to be agreed between the parties, including as to payment).

   6. On reasonable notice, Packnet Limited shall be entitled to audit the Customer’s (and any customer of the Customer’s (if applicable) use of the Platform to establish its compliance with the provisions of this Contract and any licence agreement.  If such audit reveals any use (including, but not limited to, number of users and extent of use) not in accordance with the terms of this Contract and any licence agreement (without prejudice to Packnet Limited’s other remedies), the Customer shall promptly pay to Packnet Limited an amount equal to any underpayment as a result of such use.

   7. Subject to condition 15, the Customer shall not licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit or make the Platform (and/or any Services provided as part of or in connection with the Platform) available to any third party.

   8. From time to time Packnet Limited may (in its absolute discretion):

1. 1. 1. 1. modify the Services by issuing updates;

         2. make new features, functionality, applications or tools available in respect of the Solution, subject to terms (including as to payment) to be agreed in writing.

13. INTELLECTUAL PROPERTY RIGHTS

1. 1. Subject to condition 12 above, all Intellectual Property Rights and all other rights relating to or comprised in the Deliverables shall be owned at all times by Packnet Limited (or any third party licensee, as applicable). Packnet Limited hereby licenses all such rights to the Customer free of charge and on a non-exclusive, non-transferable, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is allowed pursuant to this Contract. If this Contract is terminated, this licence will automatically terminate without further notice.

   2. The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on Packnet Limited obtaining a written end-user licence (or sublicence) of such rights from the relevant licensor or licensors on such terms as will entitle Packnet Limited to license such rights to the Customer, such rights which will be procured by Packnet Limited prior to releasing said license or sub-license to Customer.

14. CONFIDENTIALITY AND PACKNET LIMITED’S PROPERTY

1. 1. The Customer and Packnet Limited shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by each to the other, and any other confidential information concerning each party’s business or its products which they each may obtain. Both parties shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know it for the purpose of discharging its obligations and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind each party.

   2. All materials, equipment and tools, drawings, specifications and data supplied by Packnet Limited to the Customer shall at all times be and remain the exclusive property of Packnet Limited, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Packnet Limited, and shall not be disposed of or used other than in accordance with Packnet Limited’s written instructions or authorisation.

   3. This condition 14 shall survive termination of the Contract, however arising.

15. RE-SELLER TERMS

1. 1. Unless agreed in writing with Packnet Limited, the Customer shall not be entitled to commercially exploit in any way the Solution provided by Packnet Limited.  The terms of this condition 15 shall apply to any Re-Seller.

   2. Any Re-Seller shall be subject to the following obligations:

1. any sales or otherwise making available of the Solution (or any part of it) to any customers of the Customer shall be subject to terms at least equivalent to the terms of this Contract (as amended from time to time);

2. the Customer shall keep a written record of all its customers and make such record available to Packnet Limited on request;

3. the Customer shall not sell the Solution outside of the United Kingdom;

4. the Customer shall comply with the reasonable requests of Packnet Limited in respect of such customer from time to time.

3. 3. The Re-Seller shall indemnify Packnet Limited against all liabilities, costs, expenses, damages and losses (including, but not limited to, any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Packnet Limited (or its third party licensors) arising out of or in connection with: (a) the promotion, sale, exploitation or other related activities of the Re-Seller (or any of its authorised representatives); (b) any action or omission of any customer of the Re-Seller in respect of its use of the Solution; and/or (c) any claim made against Packnet Limited by a customer of the Re-Seller or any third party otherwise connected to the Re-Seller arising out of or in connection with the Solution.

   4. Packnet Limited may grant to any Re-Seller, subject to the terms of this Contract (and any other terms agreed in writing between the parties from time to time) a non-exclusive, non-transferable right during the term of the Contract:

      1. 1. to permit its customers to use the Platform; and

         2. to permit the Platform to be used in association with the Customer’s Materials.

   5. If the Re-Seller wishes to display, incorporate or otherwise use Intellectual Property Rights belonging to Packnet Limited in relation to its use of the Platform, the Customer shall obtain a written licence from Packnet Limited to allow it to do so (such licence to be on terms to be agreed between the parties).

16. LIMITATION OF LIABILITY

1. 1. The following provisions set out the entire financial liability of Packnet Limited (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of the Contract; (b) any use made by the Customer of the Services, the Deliverables or any part of them; and

   2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

   3. Nothing in these conditions excludes the liability of Packnet Limited: (a) for death or personal injury caused by Packnet Limited’s negligence; (b) for infringement of a third party’s intellectual property rights; or (c) for fraud or fraudulent misrepresentation.

   4. Subject to condition 16.3:

1. Neither Party shall be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:

1. loss of profits;

2. loss of business;

3. depletion of goodwill or similar losses;

4. loss of anticipated savings;

5. loss of goods;

6. loss of contract;

7. loss of use;

8. loss or corruption of data or information; and/or

9. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

2. Packnet Limited’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the aggregate amounts paid for the Services during the term of this Agreement.

5. 5. The Customer hereby acknowledges that Packnet Limited is unable to exercise control over the material sent using the Solution and Packnet Limited hereby excludes liability of any kind for the reception by the Customer of viruses, offensive, threatening or obscene material.

   6. Packnet Limited accepts no liability or responsibility for any recommendations made by it (or its authorised agents) in respect of entry into any Services. The Customer retains sole responsibility for assessing the suitability of the Services for its particular requirements and needs.

17. INDEMNITY

1. 1. The Customer shall defend, indemnify and hold harmless Packnet Limited against all claims, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Solution, provided that:

1. 1. 1. 1. the Customer is given prompt notice of any such claim;

         2. Packnet Limited provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

         3. the Customer is given sole authority to defend or settle the claim.

18. DURATION AND TERMINATION

1. 1. Subject to condition 4 above each Contract for Services shall be for a term of 1 month, and shall renew automatically for further terms of 1 month each, unless terminated in accordance with this condition 18 or upon the expiry of 30 days from the service by either party on the other of a written notice of termination.

   2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if: (a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); (d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; (f) the other party ceases, or threatens to cease, to trade; (g) there is a change of control of the other party, except for in connection with a merger, acquisition, stock sale, company reorganization other than as a result of matters covered by (e) above or sale of all or substantially all of its assets; and/or (h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

   3. Packnet Limited may terminate this Contract immediately on written notice in the event that any Guarantee is terminated by any Guarantor.

   4. Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.

   5. On termination of this Contract for any reason, all contracts which any Re-Seller may have with its customers in respect of the Solution shall terminate immediately.

19. FORCE MAJEURE

Packnet Limited shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Packnet Limited or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Packnet Limiteds or sub-contractors. If such an event lasts longer than ten (10) business days, Customer may elect to cancel this Agreement without penalty.

20. WAIVER

1. 1. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

   2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

21. SEVERANCE

1. 1. If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

   2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

22. STATUS OF PRE-CONTRACTUAL STATEMENTS

Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract.

23. ASSIGNMENT

1. 1. Neither Party shall, without the prior written consent of the other, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract; except for in connection with a merger, acquisition, stock sale, company reorganization or sale of all or substantially all of its assets.

   2. Packnet Limited and Customer may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract, so long as prior written notice is given to the non assigning party and the assigning party is liable for any actions performed by such third party as if the assigning party had performed the action themselves.

24. NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

25. THIRD PARTY RIGHTS

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

26. NOTICES

Any notice under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in the Contract, or by email to the contact email addresses that are held within Packnet Limited online systems ‘Metis’ as listed via the url https://voip.mymetis.co.uk for any reseller, channel or customer. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). A notice sent by email (where specifically provided in these conditions as a permissible form of notice) shall be deemed to have been received two hours after the time of transmission.

27. GOVERNING LAW AND JURISDICTION

1. 1. The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.

   2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).