Telecoms Services Cancellation Form

The Customer's attention is particularly drawn to the provisions of Condition 15.

1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply: “Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. “Broadband Plan” the tariff set out in the Order “Broadband Service” the direct network access to the internet provided in accordance with the Broadband Plan and supplied to the Customer’s Site via the Network at the best available Transmission Speed that MMS Comms is reasonably able to make available to the Customer in accordance with the Broadband Plan or in respect of a leased line service in accordance with the Customer’s requirements, and in accordance with these Conditions. “BT” British Telecommunications plc and its associated companies “Call Charges” MMS Comms’ charges for calls made (including reverse charge calls) on the System as notified to the Customer by MMS Comms from time to time. “Calls and Lines Service” the services for calls and lines supplied by MMS Comms to the Customer by means of the System, as set out in the Order. “Charges” all charges and fees for the Equipment and the Services payable by the Customer under the Contract. “Commencement Date” has the meaning set out in Condition 2.2. “Conditions” these terms and conditions as amended from time to time in accordance with Condition 19.7. “Connection Charge” the non-refundable charge (if any) for the installation and connection of the System as set out in the Order. “Connection Point” includes a terminal block, a socket for a removable plug, a distribution frame, or any other device which MMS Comms fixes at the Site(s) to connect the Customer’s equipment to an Exchange Line “Contract” the contract between MMS Comms and the Customer for the supply of Equipment and/or Services in accordance with and incorporating these Conditions. “Customer” the person or firm who purchases the Equipment and/or subscribes for and/or using the Services from MMS Comms. “Early Termination Fee” the fee payable for early termination as per the Order. “Equipment” the Equipment (or any part of them) set out in the Order. “Equipment Specification” any specification for the Equipment provided in writing by MMS Comms to the Customer. “Exchange Line” any equipment forming part of the System used by MMS Comms to connect the Site to a telephone exchange or data network in order to provide the Services. “Force Majeure Event” has the meaning given to it in Condition 18.1. “Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world “Line Rental” the monthly charge for line rental as part of the Services “MMS Comms” MMS Comms Limited registered in England and Wales with company number 08384822 and whose registered office is at Hermes House, 5 Heritage Park, Hayes Way, Cannock, Staffordshire WS11 7LT. “MMS Comms Materials” has the meaning set out in Condition 11.1(k). “Monitoring Service” the monitoring services supplied by MMS Comms to the Customer by means of the System, as set out in the Order “Network” the fixed line telecommunications network operated by a Network Operator “Network Operator” a network operator who operates a Network to which a line is connected in accordance with an agreement between MMS Comms and the Network Operator “OFCOM” the Office of Communications or other such replacement authority. “Order” the Customer's order for the supply of Equipment and/or Services, as set out overleaf, or the Customer’s order form or written acceptance of MMS Comms quote as the case may be.. “Rental Charge” the monthly rental fee payable by the Customer to MMS Comms for the Services as notified to the Customer by MMS Comms from time to time “Rented Equipment” the Equipment rented to the Customer by MMS Comms on the terms of Condition [6] “Services” the services, supplied by MMS Comms to the Customer as set out in the Order which may include the Broadband Service and/or the Calls and Lines Service and/or the Monitoring Service and/or the Telephone Services. “Service Specification” the description or specification for the Services provided in writing by MMS Comms to the Customer. “Site” the Customer’s site or sites as specified in the Order for delivery and/or installation of the Equipment and/or for provision of the Services “System” the Network that the Supplier uses to provide the Services “Telephone Services” the telephone services supplied by MMS Comms to the Customer by means of the System, as set out in the Order “Term” subject to Conditions 17.1, 17.2 and 17.3 a minimum period of 3 months from the Commencement Date or if longer the minimum period(s) set out in the Order under the heading “Minimum Terms” and such period time thereafter until the Contract is terminated in accordance with Condition 17.1. “Toll Fraud” where a third party targets telephone systems and/or networks to make telephone calls without the owner’s consent, this crime is known as toll fraud. “Transmission Speed” the rate of Kbps, Mbps or Gbps that data is transferred between the equipment (being any communications equipment or other equipment recommended by the Supplier and/or third party operator as essential as part of providing the Services) and the Broadband Service.

1.2 “Construction”. In these Conditions, the following rules apply :

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e) a reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Equipment and/or Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the MMS Comms issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”). However, in relation to a Customer who is a consumer, MMS Comms reserves the right not to provide any Services or to supply any Equipment until after the expiry of any statutory cancellation period.

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the MMS Comms which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter or advertising issued by the MMS Comms and any descriptions of the Equipment or illustrations or descriptions of the Services contained in the MMS Comms' catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Equipment described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade, custom, practice or course of dealing.

2.6 Any quotation given by the MMS Comms shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.

2.7 All of these Conditions shall apply to the supply of both Equipment and Services except where application to one or the other is specified.

EQUIPMENT

3. EQUIPMENT

3.1 The Equipment is described on MMS Comms's website www.MMS Comms.co.uk or catalogue as modified by any applicable Equipment Specification.

3.2 MMS Comms reserves the right to amend the Equipment Specification if required by any applicable statutory or regulatory requirements.

3.3 The Customer acknowledges that MMS Comms is not responsible for any equipment that is not supplied by MMS Comms, or the configuration of such equipment.

4. DELIVERY OF EQUIPMENT

4.1 MMS Comms shall ensure that each delivery of the Equipment is accompanied by a delivery note which shows the date of the Order, all relevant Customer and MMS Comms reference numbers, the type and quantity of the Equipment (including the code number of the Equipment, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Equipment remaining to be delivered.

4.2 MMS Comms shall deliver the Equipment to the Site(s) at any time after MMS Comms notifies the Customer that the Equipment is ready.

4.3 Delivery of the Equipment shall be completed on the Equipment' arrival at the Site.

4.4 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. MMS Comms shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer's failure to provide MMS Comms with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.

4.5 If MMS Comms fails to deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Equipment of similar description and quality in the cheapest market available, less the price of the Equipment. MMS Comms shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event, the Customer's failure to provide MMS Comms with adequate delivery instructions for the Equipment or any relevant instruction related to the supply of the Equipment.

4.6 If the Customer fails to accept or take delivery of the Equipment within 5 Business Days of MMS Comms notifying the Customer that the Equipment is ready, then except where such failure or delay is caused by a Force Majeure Event or by MMS Comms's failure to comply with its obligations under the Contract in respect of the Equipment:

(a) delivery of the Equipment shall be deemed to have been completed at 9.00 am on the sixth Business Day following the day on which MMS Comms notified the Customer that the Equipment was ready; and

(b) MMS Comms shall store the Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If 10 Business Days after MMS Comms notified the Customer that the Equipment were ready for delivery the Customer has not accepted delivery of them, MMS Comms may resell or otherwise dispose of part or all of the Equipment.

4.8 MMS Comms may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment or the Contract.

5. QUALITY OF EQUIPMENT

5.1 MMS Comms warrants that on delivery the Equipment shall:

(a) conform in all material respects with their description and any applicable Equipment Specification;

(b) be free from material defects in design, material and workmanship; and

(c) be fit for any purpose held out by the MMS Comms.

5.2 Subject to Condition 5.3, if:

(a) the Customer gives notice in writing within a reasonable time of discovery that some or all of the Equipment do not comply with the warranty set out in Condition 5.1;

(b) MMS Comms is given a reasonable opportunity of examining such Equipment; and

(c) the Customer (if asked to do so by MMS Comms) returns such Equipment to MMS Comms' place of business at MMS Comms' cost, MMS Comms shall, at its option, repair or replace the defective Equipment, or refund the price of the defective Equipment (where it is not Rented Equipment) in full.

5.3 MMS Comms shall not be liable for the Equipment' failure to comply with the warranty in Condition 5.1 if:

(a) the Customer makes any further use of such Equipment after giving a notice in accordance with Condition 5.2;

(b) the defect arises because the Customer failed to follow MMS Comms' oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;

(c) the Customer alters or repairs such Equipment without the written consent of MMS Comms;

(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

(e) the Equipment differs from the Equipment Specification as a result of changes made to ensure it complies with applicable statutory or regulatory standards.

5.4 Except as provided in this Condition 5, MMS Comms shall have no liability to the Customer in respect of the Equipment' failure to comply with the warranty set out in Condition 5.1.

5.5 The terms of these Conditions shall apply to any repaired or replacement Equipment supplied by MMS Comms under Condition 5.2.

6. RENTAL OF EQUIPMENT

6.1 Where the Order specifies that the Customer shall be renting the Equipment the provisions of this Condition 6 shall apply.

6.2 The Rented Equipment shall at all times remain the property of MMS Comms, and the Customer shall have no right, title or interest in or to the Rented Equipment (save the right to possession and use of the Rented Equipment subject to the terms and conditions of this Contract).

6.3 In addition to its obligations under Condition 7.3 the Customer shall:

(a) ensure the Rented Equipment is installed in accordance with MMS Comms’ and/or the manufacturer’s instructions and is used only for the purposes for which it is designed and operated in accordance with any operating instructions;

(b) take such steps as may be necessary to ensure that the Rented Equipment is at all times safe and without risk to health when being installed, set, used, cleaned or maintained by a person at work;

(c) keep the Rented Equipment at the Site to which it was delivered and not move it to another site without MMS Comms’ written permission;

(d) not, without the prior written consent of MMS Comms, part with control of the Rented Equipment, sell or offer for sale, underlet or lend the Rented Equipment or allow creation of any mortgage, charge, lien or other security interest in respect of it;

(e) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of MMS Comms in the Rented Equipment;

(f) not suffer or permit the Rented Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process;

(g) not use the Rented Equipment for any unlawful purpose;

6.4 The Customer acknowledges that MMS Comms shall not be responsible for any loss of or damage to the Rented Equipment arising out of or in connection with any negligence, misuse, mishandling of the Rented Equipment or otherwise caused by the Customer or its officers, employees, agents or contractors.

7. TITLE AND RISK

7.1 The risk in the Equipment shall pass to the Customer on completion of delivery.

7.2 Except in circumstances in which Condition 6 applies to the provision of the Equipment, title to the Equipment shall not pass to the Customer until MMS Comms receives payment in full (in cash or cleared funds) for the Equipment.

7.3 Until title to the Equipment has passed to the Customer, the Customer shall:

(a) store the Equipment separately from all other Equipment held by the Customer so that it remains readily identifiable as MMS Comms' property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;

(c) maintain the Equipment in satisfactory condition and keep them insured against all risks for their full price on MMS Comms' behalf from the date of delivery;

(d) notify MMS Comms immediately if it becomes subject to any of the events listed in Condition 17.2(b) to Condition 17.2(m); and

(e) give MMS Comms such information relating to the Equipment as MMS Comms may require from time to time.

7.4 If before title to the Equipment passes to the Customer the Customer becomes subject to any of the events listed in Condition 17.2(b) to Condition 17.2(m), then, without limiting any other right or remedy MMS Comms may have the Customer's right to use the Equipment in the ordinary course of its business ceases immediately and MMS Comms may at any time require the Customer to deliver up all Equipment in its possession.

SERVICES

8. SUPPLY OF SERVICES GENERALLY

8.1 The provision of the Services by MMS Comms is subject to all relevant licences, consents and infrastructure being in place.

8.2 MMS Comms may change or withdraw some or part of the Services from time to time as a result of changing technologies, new or different product features, changing providers, obsolescence and may change the way in which the Services are presented or delivered or otherwise made available to the Customer.

8.3 The Services will be provided within MMS Comms’ Network Operators’ network area. The Customer acknowledges that quality or coverage may be affected at times.

8.4 MMS Comms shall provide the Services to the Customer however, the Customer acknowledges and accepts that:

(a) MMS Comms may be reliant upon BT’s or other Network-operator’s co-operation in providing the Services; and/or

(b) BT or other Network Operator may need to undertake programming at exchange level to enable the Services to be provided; and as such MMS Comms gives no warranty, representation or undertaking as to the speed, quality or validity of the Services and MMS Comms shall not be responsible for any act, default or delay by BT or other Network Operator in carrying out such programming or otherwise relating to the Services and further:

8.5 Time shall not be of the essence for the performance of the Services.

8.6 MMS Comms shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the MMS Comms shall notify the Customer in any such event.

8.7 MMS Comms warrants to the Customer that the Services will be provided using reasonable care and skill.

8.8 MMS Comms cannot guarantee to maintain uninterrupted availability of any of the Services.

8.9 MMS Comms reserves the right to suspend or vary the Services for operational reasons (including but not limited to repairs, maintenance or installation, security and integrity of the Network, as a result of direction or request of OFCOM, a government department, emergency service or regulatory or administrative authority).

8.10 Whilst MMS Comms takes all reasonable measures possible to ensure that the Customer’s system is secure MMS Comms cannot be held responsible for any losses incurred by the Customer as a result of Toll Fraud or any other fraud or unauthorised used committed by the Customer or a third party.

8.11 MMS Comms is not obliged to detect or report fraud or fraudulent activity or misuse or unauthorised use of a Service to the Customer.

8.12 The supply and/or operation of the Services may sometimes be affected by circumstances (including but not limited to physical obstructions, atmospheric conditions, radio interference, faults in other telecommunications networks) outside of the control of MMS Comms, BT or a Network Operator.

8.13 The existence of minor errors in the Services shall not constitute breach of the Contract.

9. SUPPLY OF BROADBAND SERVICES

9.1 In order for MMS Comms to be able to provide the Broadband Service the Customer must ensure that it has:

(a) an existing BT or other non-cable network telephone line;

(b) a computer of minimum specification; and

(c) compatible cables and extension leads between any communication equipment and telephone socket.

9.2 MMS Comms shall use reasonable efforts to remedy any operational faults reported to it by the Customer in relation to the Broadband Service as soon as reasonably possible.

9.3 MMS Comms accepts no responsibility for the functioning of the internet or any other service, which is accessed by you through the use of the Broadband Service, and accepts no responsibility for any transaction or other activity undertaken by the Customer or any other user of the internet or other service provided to you through the use of the Broadband Service.

9.4 Any fault diagnosis on the broadband circuit will be carried out only using the test router supplied by MMS Comms for that purpose and the Customer undertakes to co-operate with MMS Comms during any testing.

10. SUPPLY OF CALLS AND LINES SERVICES

10.1 MMS Comms cannot guarantee the Customer’s use of a telephone number as there are instances when BT and/or the Network Operator can remove a telephone number from MMS Comms control. The Customer shall not acquire any rights (subject to any statutory or licence provisions relating to number portability) in or over any allocated number.

10.2 The Calls and Lines Services are only available is the Customer has a valid contract for the use of an Exchange Line which terminates on a Connection Point.

10.3 The Customer acknowledges that certain services are incompatible with the Calls and Lines Service available from BT and such incompatible services are excluded from the Services.

11. CUSTOMER'S OBLIGATIONS GENERAL

11.1 The Customer shall:

(a) ensure that the terms of the Order are complete and accurate;

(b) co-operate with MMS Comms and/or the Network Operator in all matters relating to the Services;

(c) promptly report any faults to MMS Comms;

(d) provide MMS Comms, BT or other Network Operator, their employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities (including but not limited to the Site(s)) as reasonably required by MMS Comms to provide the Services;

(e) provide MMS Comms, BT or other Network Operator, their employees, agents, consultants and subcontractors, with a safe and suitable working environment when they are at the Customer's premises, office accommodation and other facilities (including but not limited to the Site(s)).

(f) provide MMS Comms with such information and materials as MMS Comms may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

(g) prepare the Customer's premises for the supply of the Services;

(h) ensure that the facilities and functions of the Services meet their requirements as they have not been developed to meet the Customer’s individual requirements;

(i) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start and comply with all applicable legislation, licences, directions, codes of practice, codes of conduct relevant;

(j) comply with and co-operate with MMS Comms in compliance with all applicable legislation, licences, directions, codes of practice, codes of conduct relevant to location based services, adult content services and the protection of minors through controlling access to such services by means of barring equipment from BT’s fixed public switched telecommunications network which includes the integrated services digital network, BT’s public switched telephone network, a telecommunications network operated on internet protocol or cellular telecommunications system;

(k) keep and maintain all materials, equipment, documents and other property of MMS Comms (“MMS Comms Materials”) at the Customer's premises in safe custody at its own risk, maintain the MMS Comms Materials in good condition until returned to MMS Comms, and not dispose of or use the MMS Comms Materials other than in accordance with MMS Comms' written instructions or authorisation; and

(l) comply with processes, procedures and requirements set out in MMS Comms, BT or other Network Operator’s product information sheets;

(m) not cause MMS Comms, BT or other Network Operator to contravene any legislation or regulatory authorisations;

(n) ensure that any password or username provided by MMS Comms to the Customer or generated by the Customer for use in relation to the provision of the Services is kept confidential and secure and immediately notify MMS Comms of any suspected or actual breach of security or misuse of any password or username by a third party.

(o) take all reasonable steps (including testing with the latest commercially available virus detection software) to ensure that any software or Equipment used with or in connection with any Service is not infected by viruses and/or logic bombs, worms, trojan horses and any other types of disruptive, destructive or nuisance programs; and

(p) ensure that it has an Exchange Line;

11.2 The Customer undertakes that it shall not and shall procure that none of its employees’, agents or other third parties using the Services with the Customer’s permission (express or implied) use it/them;

(a) for any fraudulent, criminal or unlawful purpose;

(b) in any way that increases the flow of calls to any particular revenue share service as a result of an activity that is disproportionate to the flow of calls to such a service which would be expected from good faith commercial practice or use of the network;

(c) in any way send or receive data in such a way or in such any amount so as to adversely affect the network (or any part of it) which underpins any Service or to adversely affect any other customer of MMS Comms or Network Operator.

(d) in a way that could materially affect the quality of any telecommunications service or other service provided by MMS Comms or Network Operator.

(e) in a way that does not comply with any legislation or codes of practice, regulations or licences applicable to MMS Comms, a Network Operator or the Customer;

(f) to send unsolicited advertising or promotional material or to engage in any spamming activity;

(g) to transmit any virus, worm, Trojan horse or other harmful material;

(h) to obtain access, through whatever means, to notified restricted areas of the underlying Network;

(i) for the purpose of threatening, intimidating, harassing, stalking, or causing annoyance to any third party;

(j) to hack, probe, denial of service attack or attempt to gain unauthorised access to any system;

(k) in any way which in the reasonable opinion of MMS Comms, brings or may bring the reputation of MMS Comms and/or a Network Operator into disrepute

(l) for an unethical purpose or in an unethical manner; or

(m) to send or receive, download, or place upon any website hosted by MMS Comms, any material which is obscene, offensive, defamatory, unlawful or infringes any third party’s Intellectual Property Rights.

11.3 The Customer undertakes it will not act in such a way which would cause MMS Comms to breach any of its obligations under any agreement with a Network Operator.

11.4 The Customer undertakes that all apparatus which is attached (directly or indirectly) to the Services will conform to the relevant standard of approval for the time being designated under the Communications Act 2003 and any requirements or standards set out in any relevant Equipment information or literature supplied from time to time.

11.5 The Customer consents to MMS Comms sharing such information and data about the Customer with OFCOM and/or BT and/or a Network Operator as is necessary to supply the Equipment and/or the Services or comply with its obligations under any applicable legislation or regulation or code of practice.

11.6 The Customer agrees to the termination of its existing contract(s) for equivalent services with the applicable communications service provider and the Customer shall provide MMS Comms with any information regarding its existing contract(s) as MMS Comms may reasonably request. The Customer acknowledges that MMS Comms cannot provide the relevant Services until such information is provided by the Customer.

11.7 In the event that the Customer wishes to change to a different service provider in respect of any of the Services, the Customer must give MMS Comms prior notification in writing. In the event that MMS Comms receives a porting request from another supplier in respect of any of the Services in relation to the Customer and the Customer has not provided such notification as requested by this Condition 13.2 MMS Comms shall be at liberty to “slam” such porting request on the basis that it may be fraudulent and in doing so MMS Comms shall not be liable for any charges payable or loss suffered by the Customer.

11.8 If MMS Comms' performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

(a) MMS Comms shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays MMS Comms' performance of any of its obligations;

(b) MMS Comms shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from MMS Comms' failure or delay to perform any of its obligations as set out in this Condition 11.2; and

(c) the Customer shall reimburse MMS Comms on written demand for any costs or losses sustained or incurred by MMS Comms arising directly or indirectly from the Customer Default.

GENERAL

12. CHARGES AND PAYMENT

12.1 The price for Equipment shall be the price set out in the Order. The price of the Equipment is exclusive of all costs and charges of packaging, insurance, transport of the Equipment, which (if applicable) shall be paid by the Customer when it pays for the Equipment.

12.2 The charges for Services shall be as set out in the Order.

12.3 MMS Comms reserves the right to:

(a) increase its charges for the Services, provided that such charges cannot be increased more than once in any 12 month period. MMS Comms will give the Customer written notice of any such increase [21] days before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify MMS Comms in writing within [5] days of the date of MMS Comms' notice and the MMS Comms shall have the right without limiting its other rights or remedies to terminate the Contract by giving [5] days written notice to the Customer; and

(b) increase the price of the Equipment, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to MMS Comms that is due to:

(i) any factor beyond the control of MMS Comms (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(ii) any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the Equipment Specification; or

(iii) any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give MMS Comms adequate or accurate information or instructions in respect of the Equipment.

12.4 In respect of Equipment, where the Order specifies a deposit is payable, the Customer shall pay such deposit on the Commencement Date, and where the Order specifies that an interim payment is payable the Customer shall pay such interim payment on delivery of the Equipment and in respect of any balance or in all other cases MMS Comms shall invoice the Customer on or at any time after completion of delivery.

12.5 In respect of all Services excluding Call Charges and annual Maintenance Services, MMS Comms shall invoice the Customer monthly in advance, this includes the Rental Charge and Line Rental.

12.6 In respect of annual Maintenance Services MMS Comms shall invoice the Customer annually in advance.

12.7 In respect of the Call Charges MMS Comms shall invoice the Customer monthly in arrears

12.8 Except in respect of Call Charges and Line Rental the Customer shall pay each invoice submitted by MMS Comms:

(a) within 30 days of the date of the invoice; and

(b) in full and in cleared funds to a bank account nominated in writing by MMS Comms, and time for payment shall be of the essence of the Contract.

12.9 In respect of the Call Charges and Line Rental the Customer shall pay each invoice submitted by MMS Comms:

(a) on the last day of the calendar month following the calendar month in respect of which the invoice has been raised; and

(b) in full and cleared funds by variable direct debit to a bank account nominated in writing by MMS Comms; and time for payment shall of be of the essence of the Contract.

12.10 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by MMS Comms to the Customer, the Customer shall, on receipt of a valid VAT invoice from MMS Comms, pay to MMS Comms such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.

12.11 If the Customer fails to make any payment due to MMS Comms under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above Barclays Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

12.12 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. MMS Comms may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the MMS Comms to the Customer.

12.13 The Customer shall be responsible for all reasonable costs and expenses incurred by MMS Comms as a result of MMS Comms suspending or varying the Services as a result of an act or omission of the Customer.

13. INTELLECTUAL PROPERTY RIGHTS

13.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by MMS Comms.

13.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on MMS Comms obtaining a written licence from the relevant licensor on such terms as will entitle MMS Comms to license such rights to the Customer. If no licence is obtained then the Customer’s right to use such third party’s Intellectual Property Rights is expressly prohibited.

13.3 Without prejudice to MMS Comms’ other rights and remedies under this Contract if the Customer is in breach of this Condition 13, the Customer shall provide such undertakings to MMS Comms that it deems are reasonably necessary to remedy the breach of to protect its Intellectual Property Rights or the Intellectual Property Rights of a Network Operator from further infringement, including that it will remedy the breach within 48 hours.

13.4 All MMS Comms Materials are the exclusive property of MMS Comms

14. CONFIDENTIALITY

A party (“receiving party”) 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 to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this Condition as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This Condition 14 shall survive termination of the Contract.

15. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION

15.1 Nothing in these Conditions shall limit or exclude MMS Comms's liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation on the part of MMS Comms;

(c) breach of the terms implied by section 2 of the Supply of Equipment and Services Act 1982 (title and quiet possession);

(d) breach of the terms implied by section 12 of the Sale of Equipment Act 1979 (title and quiet possession); or

(e) defective products under the Consumer Protection Act 1987.

15.2 Subject to Condition 15.1:

(a) MMS Comms shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;

(b) MMS Comms shall under no circumstances whatever be liable for the telecommunications or other costs incurred by the Customer through the use of the internet or any other service which the Customer may access through the use of the Broadband Service;

(c) MMS Comms shall under no circumstances be liable for failure of the Broadband Service due to failure of a server or other external causes;

(d) MMS Comms shall under no circumstances whatever be liable for any termination fees or other charges payable to the Customer’s previous supplier(s) of the Services;

(e) MMS Comms shall under no circumstances whatever be liable for Toll Fraud or any charges, fees or costs incurred by the Customer as a result of Toll Fraud;

(f) MMS Comms shall under no circumstances whatever be liable for, and the Customer shall have sole responsibility for any Charges incurred through or as a result of fraud committed or unauthorised use by the Customer or a third party of any of the Services.

(g) MMS Comms shall under no circumstances whatever be liable for any losses as a result of poor speed or loss of the Broadband Service where the Customer has failed to comply with its obligations to co-operating in testing and fault diagnosis of such Service;

(h) MMS Comms shall under no circumstances whatever be liable for the adverse effect on quality or operation of the Services as a result of circumstances outside of its control;

(i) MMS Comms's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £250,000.

15.3 The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 and the terms implied by sections 3 to 5 of the Supply of Equipment and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

15.4 This Condition 15 shall survive termination of the Contract.

16. INDEMNITY

The Customer hereby undertakes to indemnify MMS Comms (on a continuing basis) 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 reasonable professional costs and expenses) in respect of any third party claim made against MMS Comms resulting from any use or misuse of the Services by the Customer or the Customer’s employees, agents, consultants officers or other party using the Services with the Customers permission (whether express or implied) and/or any failure by the Customer or the Customer’s employees, agents, consultants officers or other party using the Services with the Customers permission to comply with its obligations under this Contract.

17. TERMINATION

17.1 Following the initial 3 month period beginning on the Commencement Date, without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 3 months' written notice.

17.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

(e) the other party (being an individual) is the subject of a bankruptcy petition or order;

(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 17.2(b) to Condition 17.2(i) (inclusive);

(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;

(l) the other party's financial position deteriorates to such an extent that in MMS Comms' opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

17.3 Without limiting its other rights or remedies, MMS Comms may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

17.4 Without limiting its other rights or remedies, MMS Comms may suspend the supply of Services under the Contract or any other contract between the Customer and MMS Comms if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in Condition 17.2(b) to Condition 17.2(m), or MMS Comms reasonably believes that the Customer is about to become subject to any of them.

17.5 On termination of the Contract for any reason:

(a) the Customer shall immediately pay to MMS Comms all of MMS Comms' outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, MMS Comms shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall immediately pay to MMS Comms any applicable Early Termination Fee and a fee of £75 + VAT for each telephone number being ported to another provider;

(c) the Customer shall return all of the MMS Comms Materials. If the Customer fails to do so, then MMS Comms may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(d) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;

(e) if there is any programming on the Customer’s equipment to route calls via the System, the Customer undertakes to arrange for such programming to be to be removed; and

(f) Conditions which expressly or by implication have effect after termination shall continue in full force and effect.

18. FORCE MAJEURE

18.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of MMS Comms including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of MMS Comms 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 MMS Comms’ or subcontractors.

18.2 MMS Comms shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

18.3 If the Force Majeure Event prevents MMS Comms from providing any of the Services and/or Equipment for more than 6 weeks, MMS Comms shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

19. GENERAL

19.1 Assignment and other dealings.

(a) MMS Comms may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

(b) The Customer shall not, without the prior written consent of MMS Comms, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

19.2 Notices.

(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition , and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail one Business Day after transmission.

(c) The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action

19.3 Severance.

(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.

(b) If one party gives notice to the other of the possibility that any provision or partprovision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

19.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

19.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

19.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by MMS Comms.

19.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

19.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).