Unless expressly stated by Prosperity Telecom Ltd(Prosperity Telecom) in writing all quotations are made and Order Forms
accepted on the following terms and conditions
In this Agreement the following terms shall have the following meanings: (a) Administrative Charge means a monthly fee of £5 imposed by Prosperity Telecom for handling payments made other that by direct debit as provided in Condition 12.3 below; (b) Carrier Pre-Selection means the service administered by BT which enables phone calls to be routed through specific telecommunications operators networks as requested by the person renting the telecommunications line; (c) Customer means the person or entity whose details are set out on the Order Form; (d) Customer Equipment means any telecommunications apparatus or system owned or controlled by the Customer; (e) Order Form means a request for Services signed by the Customer and delivered to Prosperity Telecom; (f) Minimum Monthly Call Spend means £0; (g) Minimum Term unless otherwise set out on the Order Form means a period of 12 months; (h) Prosperity Telecom means an associated company of Prosperity Telecom, retained for invoicing and collecting; (i) Service means the telephony services the Customer has requested from Prosperity Telecom on the Order Form; (j) Service Equipment means an auto dialler or any other data collection and call routing device or other telecommunications equipment Prosperity Telecom may from time to time install at the Customer’s Premises for the purposes of providing the Service;
2.1 The Customer may from time to time deliver Order Forms to Prosperity Telecom under the terms of this Agreement. Any Order Forms shall be in such form as is notified to the Customer from time to time by Prosperity Telecom and Prosperity Telecom may in its sole discretion accept orders by electronic mail. 2.2 Each Order Form shall be binding on Prosperity Telecom only after it indicates its acceptance by sending out a welcome letter to the Customer, first commences provision of the Service or from the date of installation of any Service Equipment, whichever is the earlier. Prior to acceptance the Customer agrees that Prosperity Telecom may carry out such credit checks as it deems necessary pursuant to Condition 13.3.
3. THE SERVICE
3.1 Prosperity Telecom agrees to provide the Service to the Customer and the Customer agrees to use the Service on the terms set out in this Agreement. 3.2 Prosperity Telecom will provide the Service with the reasonable skill and care of a competent telecommunications service provider. 3.3 Prosperity Telecom will use reasonable endeavours to ensure that the Service is available for use by the Customer but owing to the nature of telecommunications networks, it is impossible to provide a fault free Service and the quality of the Service depends on both the quality and availability of the network to which the Customer is connected and also on other telecommunication networks to which the person being called is connected. 3.4 Prosperity Telecom shall respond to any reported fault with the Services as soon as reasonably practicable during Prosperity Telecom ’s normal working hours and shall use all reasonable endeavours to correct any fault within Prosperity Telecoms control.
4.1 The provision of the Service may require implementation of an access code(s) by: 4.1.1 reprogramming of the Customer Equipment by the Customer where the Customer has least cost routing employed; 4.1.2 installation of the Service Equipment on the Customer Equipment; or 4.1.3 through Carrier Pre-Selection. Prosperity Telecom shall select the appropriate method and advise the Customer accordingly. 4.2 Prosperity Telecom or its appointed agent shall deliver and install any Service Equipment required for the provision of the Service at the Customer’s Premises. Prosperity Telecom will take all reasonable steps to deliver and install the Service Equipment by such date as is advised, however any delivery date specified shall be an estimate only. Prosperity Telecom accepts no liability for failure to meet the delivery date. 4.3 The Service Equipment shall at all times remain the property of Prosperity Telecom. 4.4 The Customer must not add to, modify or in any way interfere with the Service Equipment, nor allow anyone else other than someone authorised by Prosperity Telecom to do so. The Customer will be liable for any loss or damage to the Service Equipment except where such damage is due to fair wear and tear or is caused by Prosperity Telecom or anyone acting on Prosperity Telecom's behalf. 4.5 Where access to the Service is through Carrier Pre-Selection, the Customer authorises Prosperity Telecom to have telephone calls from the BT lines listed on the Order Form routed by alternative carriers instead of BT, when necessary and to forward appropriate details of the Customer’s application for the Service to BT. The Customer will receive advance notification of any change of service. There is no charge from either BT or Prosperity Telecom for providing Carrier Pre-Selection, however, Prosperity Telecom’s ability to provide the Service is subject to BT making changes to the Customer’s BT lines. The Customer will rent its line from Prosperity Telecom and will remain liable to Prosperity Telecom for any line rental charges. Prosperity Telecom shall not be bound to provide the Service until such time as BT have accepted and processed the Carrier Pre-Selection request.
5. USE OF THE SERVICE
5.1 During the term of this Agreement, the Customer shall not use another telecommunications service provider or network operator to provide an indirect access telephony service. 5.2 The Customer shall ensure that the Customer Equipment is in proper working order and complies with all applicable standards and approvals for network connection. "any services are accurate and meet the Customer’s requirement and the Customer shall indemnify and hold the Company harmless in respect of any liability, loss, injury, damage, demand, cost charge or expenses which may be incurred or sustained by the Company by reasons of or arising directly or indirectly out of any claim in respect of any inaccuracy in respect of any such drawing, sketches, specifications, descriptions or information in relation thereto. "5.3 The Customer shall ensure that the Service is not used either by the Customer or any third party for any fraudulent, criminal, defamatory, offensive, obscene or abusive purpose or so as to constitute a violation or infringement of the rights of Prosperity Telecom or any third party. The Customer hereby undertakes to comply with all applicable laws and regulations and all reasonable instructions of Prosperity Telecom in relation to its use of the Service and the Service Equipment. 5.4 Prosperity Telecom shall have the right to recover all reasonable costs incurred in investigating or remedying any fault with the Service where it is caused by the Customer’s negligence or default or by the Customer Equipment or where the fault does not lie with Prosperity Telecom or any Service Equipment.
Any illustrations, samples or descriptive material, including drawings, specifications of weight, capacity or dimensions and particulars of shade shall not form part of the contract but shall be treated as approximate only unless specifically stated otherwise. Any savings quoted are illustrative only. All documents containing such illustrative or descriptive material (as well as the copyright therein) shall remain the exclusive property of the Company and must not be copied or loaned or transferred.
7. ESTIMATED TIME
7.1 The Company shall make reasonable efforts to execute the contract within the quoted period which period shall (unless otherwise specified) commence from the date of receipt by the Company of all instructions and information for the execution of the contract, including when applicable the arrangement of credit facilities, but such time is not guaranteed nor deemed to be of essence of the contract. The estimated time for completion of the contract by the Company shall be extended by a reasonable period of time if there is any delay caused by industrial dispute or by any cause beyond the reasonable control of the Company. The Company shall not be obliged to notify the Customer of any such delay. Any dates quoted by the Company for the delivery of the goods are approximate only and shall not form part of the contract and the Customer acknowledges this. 7.2 The Company shall not be liable for any penalty, loss, injury, damage or expense arising from any cause at all nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance of a or repudiate the contract.
8.1 The Customer shall provide the Company with any necessary instruction for the delivery and/or installation of the goods within a reasonable period prior to the installation date advised by the Company to the Customer. The goods are delivered to the Customer when the Company makes them available to the Customer or any agent of the Customer or any carrier of the Customer (who shall be the Customer’s agent whoever pays its charges) at the Customer’s premises or other delivery point agreed by the parties. 8.2 Risk in the goods passes when they are delivered to the Customer. 8.3 If by reason of instruction or lack of instruction from the Customer the installation of any goods in accordance with the contract is delayed for 28 days after the Company has given notice in writing to the Customer that the goods are ready for installation the goods shall be deemed to have been installed in accordance with the contract and thereafter the goods shall be deemed to be at risk of the Customer. The Customer shall pay to the Company the reasonable cost of storing, protecting and preserving such goods after the expiry of such period of 28 days. 8.4 Where the goods are delivered by instalments no default of failure by the Company in respect of any one or more instalments shall vitiate the contract in respect of the goods previously delivered or undelivered. Furthermore, delay in the installation of any instalment shall not entitle the Customer to treat the contract as at an end or to reject any other instalment. 8.5 If by reason of refusal of delivery or installation the contract shall be deemed to be complete in accordance with Clause 8.2, then payment shall be made by the Customer to the Company of the balance of the contract price within 7 days. 8.6 The responsibility for the cost of connection to the Public Switch Telephone Network (PSTN) and/or the provision of additional line to the PSTN lies with the Customer.
9.1 It is agreed that where the Company approaches a finance provider to arrange finance then the Company acts as an agent for the Customer and not for the finance provider. 9.2 The Customer undertakes to supply all information requested by the finance provider for the purpose of credit vetting, including where required, the home address of Directors, Partners or Proprietors. 9.3 Where third party indemnities are required by the finance provider failure to provide such indemnities, shall constitute a breach of the terms and conditions of this contract and shall entitle the Company to retaining any deposit paid by the Customer. 9.4 After the installation is completed and the Customer has signed the Satisfaction Certificate any failure by the Customer to complete the finance agreement documentation and commence payments in accordance with the terms of the finance agreements shall render the Customer liable to pay the Company the whole of the contract price (plus VAT) as defined in Clause 11.2 within 7 days presentation of an invoice.
10. TRANSFER OF RISK AND INSURANCE
10.1 Goods shall be at the Customer’s risk from the moment of installation or deemed delivery (as described in Clause 5) whether or not property in the goods has passed or payment or part payment made therefore and thereafter the Customer shall be responsible for insuring the goods.
11.1 Cash Sales. The contract price is as stated on the signed acknowledgement of order sent by the Company to the Customer and is exclusive of Value Added Tax or any other tax or duty payable, the amount of such tax or duties shall be added to the contract price and shall be payable by the Customer in the same manner as the contract price. 11.2 Finance Plans. Where the goods are supplied under the terms of a finance agreement the contract price is the total of the deposit plus all the periodical instalments as defined in the finance agreement." 11.3 Customers who request for their monthly allowance (voice or data) to be capped will benefit from protection as this will normally prevent services from exceeding any agreed monthly allowances however customers will still be liable for over usage charges should services be misused and allowances exceed agreed amount within any given month. Over usage rates on data are £0.60p per megabyte. Please see our price book for voice call rates. Prosperity Telecom reserve the right to bill up to £0.60p per megabyte should services exceed any agreed allowance. 11.4 Notifications are available on request from the customer in order to notify the customer if allowances are nearing the agreed limit on data services however this service is offered as a good will gesture and does not mean the customer voids liability for over usage charges should notifications not be provided by the network for any reason as Prosperity Telecom do not control this directly as usage is tracked by the mobile network therefore prosperity telecom are unable to provide a guarantee that such notifications will always be received. 11.5 Mobile connections connected on the Jasper platform will benefit from real-time management and reports and will use a private APN (Access Point Name) whereby any connections connected on the Dise platform will use a standard public APN and are unmanaged and reports are generated by the network every 24 hours on Dise connections. This means that connections on the Dise platform may exceed agreed allowance limits within a 24 hour window and the network will not be able to see this usage or disable the service until 24 hours later. 11.6 The first monthly invoice the customer receives after connecting to prosperity telecoms service will always appear larger than normal as bills are calculated on a pro-rata basis and are billed one month in advance. The advance month payment is returnable to the customer at the end of their agreement should they decide to terminate their contract with Prosperity Telecom minus any due money owed by the customer to prosperity telecom (administration fees, termination fees and line rental for example).
12.1 The Customer shall pay the charges for calls made through the Service as are set out on the Order Form. All prices are subject to increase upon Prosperity Telecom giving not less than 30 days prior written notice to the customer. 12.2 All sums due under this agreement shall be paid in full by the Customer to Prosperity Telecom without any set off whatsoever. 12.3 The Customer shall be invoiced monthly by Prosperity Telecom Services for charges under this agreement plus value added tax. Payment is due within 10 working days of the invoice date by direct debit. The time of payment of all sums due under this agreement shall be of the essence. If payment in full is not received by Prosperity Telecom Services upon the due date, then Prosperity Telecom through Prosperity Telecom Services shall be entitled to levy a late payment charge at a rate of 1.5% per month of any unpaid overdue balance. Invoices paid by means other than direct debit will be subject to a £5 monthly charge. 12.4 All charges payable under this agreement shall be calculated by reference to data recorded or logged by Prosperity Telecom and not by reference to data recorded or logged by the Customer. 12.5 The Customer acknowledges that Prosperity Telecom will incur cost and expense in providing the Service and any Service Equipment and relies on the Customer achieving the Minimum Monthly Call Spend. Accordingly, if call charges in any month fall below the Minimum Monthly Call Spend, Prosperity Telecom shall be entitled to invoice the Customer for any shortfall between the actual call charges and the Minimum Monthly Call Spend and the Customer agrees that any amount so incurred represents a reasonable pre-estimate of the loss Prosperity Telecom is likely to suffer by reason of the Customer not achieving such Minimum Monthly Call Spend. 12.6 Subsequent to carrying out a credit check pursuant to Condition 13.3, Prosperity Telecom may require a cash deposit or bank guarantee to cover charges which Prosperity Telecom might reasonably expect the Customer to incur under the Agreement or may place a limit on the Customer’s account for charges that can be accumulated by the Customer before payment is received by Prosperity Telecom in respect of provision of the Service. 12.7 unless otherwise agrreed at point of sale this service is only available on direct debit
13. PROVISION OF INFORMATION
13.1 The Customer undertakes to promptly provide Prosperity Telecom at no cost, with all information and cooperation as it may reasonably require to enable it to proceed without interruption with the performance of its obligations under this Agreement. 13.2 Prosperity Telecom warrants to keep any data or other information it obtains in the performance of its obligations under this Agreement in accordance with relevant data protection legislation and not to use or disclose such information for any unlawful purpose. 13.3 Prosperity Telecom reserves the right to carry out a credit check against the Customer and may register information about the Customer and the Customer’s account with credit reference agencies. Prosperity Telecom and other lenders may use this information to make credit decisions. This information may also be used to prevent fraud and to trace debtors.
14.1 Nothing in this agreement shall exclude or restrict Prosperity Telecom ’s liability for death or personal injury resulting from the negligence of Prosperity Telecom or its employees while acting in the course of their employment or for fraudulent misrepresentation or for any other liability that cannot by law be excluded. 14.2 Subject to 14.1, Prosperity Telecom’s total aggregate liability to the Customer in respect of all causes of action arising in each calendar year in contract, tort or otherwise in connection with this Agreement shall be limited to 125% of the total charges paid or payable by the Customer for the Service in such calendar year or to £20,000, if greater. 14.3 Prosperity Telecom shall not be liable to the Customer in contract, tort or otherwise, including any liability in negligence for any loss of revenue, business, anticipated savings or profit or for any indirect or consequential loss however arising. 14.4 Prosperity Telecom shall not be liable for failure to perform any of its obligations under this Agreement if it is prevented from doing so by any circumstances beyond its reasonable control, including, but not limited to, the acts or omissions of a third party telecommunications network operator. 14.5 In the event of any failure in the Service, Prosperity Telecom shall not be liable to the Customer for any charges incurred by the Customer should the Customer divert its traffic to another service provider. 14.6 The provisions of this condition 14 shall continue to apply notwithstanding the termination of this agreement.
15. SUSPENSION OF SERVICE
Prosperity Telecom may as its sole discretion elect to suspend forthwith the provision of the Service until further notice without liability to the Customer on notifying the Customer either orally (confirming the same in writing) or in writing in the event that: 15.1 the Customer is in breach of any term of this Agreement; 15.2 the Customer prevents or delays any prearranged maintenance from being carried out; 15.3 the Customer is suspected, in Prosperity Telecom ’s reasonable opinion, of involvement with fraud or attempted fraud in connection with the use of the Service; 15.4 Prosperity Telecom is obliged to do so in order to comply with an order, instruction or request of any government, emergency service organisation or other competent authority; or 15.5 The Customer call charges have reached the limit set under condition 12.6.
16. TERM AND TERMINATION
"16.1 This Agreement shall start on the date that Prosperity Telecom first makes the Service available to the customer or the date of installation of the Service Equipment and shall remain in effect for the Minimum Term and thereafter for further periods of one year unless and until terminated in accordance with this condition 16. 16.2 Each party may terminate this Agreement on not less than 30 days notice in writing to expire at the end of the Minimum Term or at the end of any subsequent renewal term. 16.3 Without prejudice to their other rights under this Agreement, Prosperity Telecom and the Customer may terminate this agreement forthwith if: 16.3.1 the other party has committed a material breach of this Agreement which is incapable of remedy or in the case of a remediable breach, the other party fails to remedy within 14 days of having been requested to do so by the non-defaulting party; or 16.3.2 the other party ceases trading, becomes bankrupt or insolvent or any insolvency proceedings are begun against it including the appointment of a receiver (including and administrative receiver in relation to the Customer) over any of its assets. 16.4 Without prejudice to its other rights, Prosperity Telecom shall have the right forthwith to terminate this agreement by notice in writing where the Customer fails to make any payment when it becomes due to Prosperity Telecom. 16.5 On termination of this Agreement, the Customer shall ensure that Prosperity Telecom is supplied with prompt access to remove any Service Equipment supplied. Where the agreement is terminated prior to the end of the Minimum Tern, other than for breach by Prosperity Telecom, the Customer shall be responsible for the cost of de-installation and collection of the Service Equipment by Prosperity Telecom and shall pay Prosperity Telecom £200 for the de-installation of each multi-line auto dialler forming part of the Service Equipment. 16.6 On termination, any consequential reprogramming of the Customer Equipment shall be the Customer’s responsibility and at the Customers cost. 16.7 Any termination of connections will incur a termination administration cost of £10.00 per connection, this is cost of disconnection and not related to any early termination fees and is applicable both within and outside agreed contractual terms. 16.8 First month bills (first bill against newly connected services) will always be billed 1 month in advance with the advance month being repayable at the end of the agreed contractual term. This will work in addition to pro-rata billing from date of connection up until end of the following month.
17.1 The Customer may not assign or transfer this Agreement or any of its rights under it without Prosperity Telecom’s prior written consent. Prosperity Telecom may assign the benefit of any or all of its rights under this Agreement by giving not less than 30 days notice in writing to the Customer. 17.2 Any notice, invoice or other document which may be given by either party under this Agreement or by Prosperity Telecom pursuant to clause 6 hereof shall be deemed to have been given if left at, or sent by post, email or fax transmission (confirming the same by post) to an address notified by the other party in writing as an address to which notices or other documents are to be sent. Prosperity Telecom’s address for service of any notice shall be such address as appears on the last invoice sent to the Customer or such other address as may be notified in writing by Prosperity Telecom for that purpose. 17.3 If any provision of this Agreement is found to be invalid, unlawful or unenforceable in any respect, the remaining provisions shall continue to apply to the fullest extent permitted by law. 17.4 Failure by either party to exercise or enforce any right under this Agreement shall not be treated as a waiver of that right and will not prevent that right or any other right being exercised or enforced on a later occasion. 17.5 This Agreement and any documents referred to in it, including, but not limited to, the Prosperity Telecom tariff, together represent the entire agreement and understanding of the parties with respect to their subject matter and supersede all prior understanding and representations (other than fraudulent misrepresentations), whether written or oral and this Agreement may only be modified if such modification is in writing and signed by Prosperity Telecom and the Customer. 17.6 The parties do not intend that any term of this Agreement should be enforceable under the Contracts (Rights of Third Parties) Act 1999 by anyone else. 17.7 This Agreement shall be governed by English law and the parties agree to submit any disputes to the exclusive jurisdiction of the English courts.